1 1.appa1125-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1125 OF 2010 IN CRIMINAL APPEAL NO.705 OF 2010 Smt.Ratna Nathuram Kadam @ Alka Shiva Ghanekar. ..Applicant. Vs. The State of Maharashtra. ..Respondents. .... Mr.Sandeep R. Karnik, Advocate for the Applicant. Mrs.A.S. Pai, A.P.P. for the State. .... CORAM : D. D SINHA & A. P. BHANGALE, JJ. DATED : 11th OCTOBER, 2010 P.C. 1. Heard learned Counsel for the applicant and learned Additional Public Prosecutor for the State. Criminal Application No. 1125 of 2010 is moved by the applicant for grant of bail. 2. Learned Counsel for the applicant has submitted that instant case is based on circumstantial evidence. In order to bring home the guilt of the accused, the prosecution has examined four witnesses and out of them, PW-1 & PW-3 are the Doctors. PW-2 Chandrakant is the first informant and PW-4 is the Investigating Officer. Learned Counsel for the applicant has submitted that even if for the sake of arguments, it is presumed that the accused after delivering twins disposed them of, even then the act of the applicant would not be punishable under Section 302 of Indian Penal Code in view of the independent PPD 2 1.appa1125-10 provision i.e. Section 318 of Indian Penal Code which is applicable in such circumstances. It is contended that Section 318 deals with concealment of birth by secret disposal of dead body and contemplates that whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 3. It is contended by learned Counsel for the applicant that the circumstances on record brought by the prosecution are inadequate to bring home the guilt of the applicant for the offence of murder, whereas in view of the facts which are brought on record by the prosecution, the act of the applicant would fall within the ambit of provisions of Section 318 of Indian Penal Code. It is, therefore, contended that the applicant is entitled to be released on bail. It is further stated that the applicant was on bail during the course of trial and has never misused the bail. Learned counsel for the applicant further submitted that the evidence of two doctors is also not sufficient to bring home the charge of murder against the applicant. In the instant case, the prosecution has not obtained the opinion of the Gynecologist which was recommended by PW-1 Dr. Padmini 3 1.appa1125-10 Burphe. It is, therefore, submitted that the applicant may be released on bail. 4. Learned Additional Public Prosecutor has not disputed that the applicant was on bail during the course of trial and has not misused the liberty granted to her at any point of time. Learned Additional Public Prosecutor however contended that the circumstantial evidence adduced by the prosecution is sufficient to complete the requisite chain in order to bring home the guilt of the accused for murder. 5. Considered the contentions canvassed by the respective parties. At the outset, we want to express that the provisions of Section 318 of Indian Penal Code operates in altogether different situations and circumstances, whereas the circumstantial evidence adduced by the prosecution for the purpose of bringing home the guilt of the accused for the charge of murder punishable under Section 302 of Indian Penal Code. This is not the stage where the entire prosecution evidence can be re-appreciated. However, at the time of consideration of grant of bail the Court needs to see whether prima facie evidence adduced by the prosecution is sufficient to bring home the guilt for the offence charged and whether finding recorded by the trial Court, based on such evidence, is prima facie sustainable in law. 4 1.appa1125-10 6. In the instant case, the applicant being a lady is a factor which has weighed with us while considering the request for grant of bail. Similarly, she was on bail during the course of trial and it is not in dispute that she did not misuse the liberty granted to her, coupled with the nature of circumstantial evidence adduced by the prosecution, we are of the prima facie view that the applicant has made out a case for grant of bail. Hence, the following order : :: O R D E R :: [i] The applicant - Smt.Ratna Nathuram Kadam @ Alka Shiva Ghanekar be released on bail subject to furnishing a P.R. Bond of Rs.5,000/- (Rs.Five Thousand Only) with two sureties in the like manner. [ii] The applicant shall reside at post Vahoor, Taluka – Mahad, District – Raigad. [iii] The applicant shall visit Mahad City Police Station once in a month i.e. on 1st of every month between 10:30 a.m. to 12:30 noon. [iv] Criminal Application is disposed of accordingly. (D. D. SINHA, J.) (A. P. BHANGALE, J.)