1 appln 3135 of 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3135 OF 2010 The State of Maharashtra .. Applicant. -versus Bhalchandra Shankar Kondewar and ors .. Respondents. Mrs. M. M. Deshmukh, APP for the Applicant State. CORAM: R.C. CHAVAN, J. DATED: 8th August, 2011 P.C. 1. This is an application for leave to file appeal against acquittal of the respondents, ordered by the learned Judicial Magistrate First Class, Court No.2, Solapur, for the offence punishable under Section 304(A) of the Indian Penal Code. The respondents are the Medical Officer and staff attached to Dufferin Hospital – a Maternity Home at Solapur. One Savita had been admitted in the hospital for delivery. On 8th May, 2000 at about 1.40 a.m. she delivered a male child which did not cry. It seems that the child was declared dead and its body was delivered to the relations. When the child was carried for burial, relations noticed that the child was alive and therefore, they took the child to Dr. Atul Kulkarni – P.W.5, a Medical 2 appln 3135 of 2010 Practitioner, who examined the child and found it to be in a critical condition. He informed the relations of the child that the child would be required to be admitted in I.C.U and also told them about the expenses. The relations decided to admit child in some other hospital. Then they took the child to Ashwini Hospital, where treatment was started, but child eventually died in Ashiwini Hospital on 8.5.2000 at 9.10 p.m. The learned Magistrate acquitted the respondents holding that the evidence was of interested witnesses since they were all from victim’s family. Learned Magistrate found that there was no documentary evidence to show that Savita admitted to Dufferin Hospital or that she had delivered a male child, and body was handed over to the custody of relations. 2. Learned APP pointed out from the record and proceeding that this evidence was very much before the learned Magistrate as could be seen from page No.215 of the file III which is a copy of case papers of Dufferin hospital. It gives time of delivery as well as fact that child did not cry and also contents of discharge card and delivery of custody of dead body. 3. There was evidence before the learned Magistrate to show that child was in fact alive after it was declared dead which came from P.W.5 Dr. Kulkarni. The case papers show that child in fact died in Ashiwini Hospital on the same night. In view of this learned Additional Public Prosecutor is right in 3 appln 3135 of 2010 submitting that the appeal is required to be admitted. In view of this, leave granted. Appeal admitted. R & P is already received. Action under Section 390 of the Code of Criminal Procedure. (R. C. CHAVAN, J.)