1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 4552 OF 2007 in CRIMINAL APPEAL ST. NO. 908 OF 2007 1 The State of Maharashtra, through P.S.O. Nandurbar City Police Station, Nandurbar, Taluka and Dist. Nandurbar ...Applicant (Original complainant) VERSUS 1 Ajay Ramesh Sharma, age 33 years, Medical Practitioner, 2 Sau Ushabai Ramesh Sharma, age 68 years, occ. Household, 3 Sanjay Ramesh Sharma, age 35 years, occ. Medical Practitioner, 4 Ramesh Mukchand Sharma, age 72 years, occ. Medical Practitioner All r/o Bhat Galli, Nandurbar, Tq. & Dist. Nandurbar ...Respondents (Original accused) ..... Smt. R.R.Mane, A.P.P. for the applicant Shri P.S.Shinde, advocate holding for Smt. S.S.Jadhav, advocate for the respondents ..... 2 W I T H CRIMINAL REVISION APPLICATION NO. 282 OF 2007 1 Bharati w/o Ajay Sharma, aged 31 years, occ. Household, r/o C/o Vishnu Sharma, Sanjeevani Medicals, Opp. Bus Stand at Shahada, Tq. Shahada, Dist. Nandurbar ...Petitioner (Original complainant) VERSUS 1 The State of Maharashtra, through P.S.I. of Nandurbar Town Police Station, Nandurbar. 2 Ajay s/o Ramesh Sharma, age 37 years, Medical Practitioner, r/o Bhat Galli, Nandurbar, Tq. & Dist. Nandurbar. 3 Sau Ushabai w/o Ramesh Sharma, age 72 years, occ. Household, r/o Bhat Galli, Nandurbar, Tq. & Dist. Nandurbar. 4 Sanjay s/o Ramesh Sharma, age 39 years, occ. Medical Practitioner, r/o Bhat Galli, Nandurbar, Tq. & Dist. Nandurbar. 5 Ramesh s/o Mulchand Sharma, age 76 years, occ. Medical Practitioner r/o Bhat Galli, Nandurbar, 3 Tq. & Dist. Nandurbar. 6 Sau. Nutan Chetan Sharma, aged 40 years, occ. Medical Practitioner, r/o Bhat Galli, Nandurbar, Tq. & Dist. Nandurbar ...Respondents (Nos. 2 to 6 Original accused) ..... Shri C.R.Deshpande, advocate for the petitioner Smt. R.R.Mane, A.P.P. for respondent no.1 Shri P.S.Shinde, advocate holding for Smt. S.S.Jadhav, advocate for respondent no.2 ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING FOR ORDERS : 12.8.2009 DATE OF PRONOUNCING THE ORDER : 17.8.2009 O R D E R : (Per Shrihari P. Davare, J.) 1 Perused. Heard learned counsel for the parties. 2 By Criminal Application No. 4552 of 2007, the State has prayed for leave under Section 378 (4) of the Code of Criminal Procedure to file appeal against the order of acquittal, passed by the learned Additional Sessions Judge, Nandurbar in Sessions 4 Case No. 35 of 2004 on 21.9.2007; whereas by Criminal Revision Application No. 282 of 2007, the applicant (original complainant) has challenged the correctness and legality of the afore said judgment acquitting accused nos. 1 to 5 therein and prayed that they be convicted and sentenced as per law. 3 Accused no.1 Ajay Sharma is the husband of original complainant Bharati. Accused no.2 Sau. Ushabai and accused no.4 Ramesh are the parents of accused no.1. Accused no.3 Sanjay is the brother of accused no.1 and accused no.5 Sau Nutan is the married sister of accused no.1. It is alleged that the original complainant Bharati married with accused no.1 Ajay Sharma on 13.2.2001. After marriage,the couple went to Jammu and Kashmir for honeymoon where accused no.1 husband disclosed that he married with Bharati for monetary gain and he intended to marry with another girl namely, Megha. Consequently, Bharati was illtreated by the accused persons. Mean while, she conceived. Hence, her tests including H.I.V. test were conducted on 20.5.2003 and she was found H.I.V. negative. Subsequently, she delivered a female child, namely Vaishnavi on 7.7.2003. It is alleged that accused no.1 husband, who is a Medical Practitioner, administered injection to original complainant Bharati and her female minor daughter of three months, namely, Vaishnavi 5 containing H.I.V. Virus on the pretext of giving injection for jaundice on 10.10.2003. The complainant Bharati noticed the wrapper of condom having blood stains lying in the room where she was given the injection. Thereafter she suffered fever,cold and cough after 25.10.2003, but the accused persons did not give her treatment. She called her father and went to his house at Shahada and after lapse of some period returned back to her matrimonial home. On 1.10.2004, accused no.1 Ajay collected the blood of the complainant through nurse in the hospital and sent it for H.I.V. Test and report thereof was received on 11.1.2004 which was H.I.V. positive. Thereafter, accused no.1 informed the same to father of the complainant immediately. However, since complainant’s brother’s marriage was fixed on 8.3.2004, he disclosed the said fact to her thereafter on 28.3.2004. Hence, the first information report came to be lodged against accused persons on 30.3.2004 in Nandurbar town police station under C.R. No. 49 of 2004. The accused persons absconded, who were arrested on 17.5.2004. After investigation, charge sheet came to be filed and the case was committed to court of Sessions, Nandurbar under Sessions Case No. 35 of 2004. 4 The accused persons were charged under Sections 498- A, 307, 328 r/w 120B and 34 of the Indian Penal Code. The 6 prosecution examined in all 32 witnesses to substantiate the charges levelled against them and and accused persons examined in all 3 defence witnesses. 5 After conducting trial, the learned Additional Sessions Judge, Nandurbar acquitted accused nos. 1 to 5 of the charges levelled against them by judgment and order dated 21.9.2007. Being aggrieved by the said judgment and order, the applicants have preferred the aforesaid applications for the prayers set out therein. 6 We have perused and scrutinized the record and proceedings of the case and also the impugned judgment, as well as heard the learned counsel for the parties. 7 Admittedly, the case of the prosecution is based upon the circumstantial evidence. 8 Having comprehensive view of the matter and considering the oral and documentary evidence on record adduced and produced by the prosecution as well as defence, and also the medical evidence, and the evidence of the expert, more particularly in respect of findings of H.I.V. Positive of original 7 complainant Bharati and minor daughter Vaishnavi, we are of the considered view that there is prima facie case against accused no. 1 Ajay Sharma. 9 Hence, Criminal Application No. 4552 of 2007 is partly allowed and leave is granted to file the appeal against acquittal against accused no.1 Ajay Sharma only under Section 378 (4) of the Code of Criminal Procedure and leave is refused as against rest of the Respondents and Criminal Revision Application No. 282 of 2007 is admitted to the extent of accused no.1, namely, Ajay Sharma and stands dismissed against other accused nos. 2 to 4. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap4552.07