(1) CR.APP. 2175.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2175 OF 2009 Rohini D/o Baban Gawali, Age : 21 years, Occu.: Nil, R/o Pokhardi Shivar, Taluka : Ahmednagar, District – Ahmednagar .. Applicant Versus The State of Maharashtra (Copy to be served on G.P. High Court, Bench at Aurangabad) .. Respondent Smt. S.S. Jadhav, Advocate for the Applicant Smt. S.B. Wadmare, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 14TH JULY, 2009 ORAL ORDER:- 1] The applicant is seeking bail in crime no.37 of 2009 of MIDC Police Station, Ahmednagar dated 28.2.2009 for the offences punishable under section 302 of the Indian Penal Code. 2] The applicant a young woman, aged 21 years, is accused of committing murder of her own niece aged about one year. The applicant is member of her joint family, which consists of her parents, her two (2) CR.APP. 2175.2009 brothers and wife of one brother viz: Surekha (the complainant) and daughter Shreya (the deceased). This family stayed in a farm house. 3] 26th February, 2009 was the first birthday of the applicant’s niece “Shreya”. The entire family celebrated this occasion. For the purpose of attending this occasion, Shreya’s maternal grand mother (the mother of Surekha, the complainant) and her sisters had come to visit the family. Surekha’s mother sought permission of the applicant’s mother to take Surekha and Shreya to Panvel, her place of residence. The applicant’s mother however, did not like the suggestion. On the next morning, Surekha’s mother and maternal aunt went to village Pathardi to meet Surekha’s maternal uncle. On 28.2.2009 all of them came to the applicant’s house and reiterated their request, which probably by this time became a demand. On this issue, there occurred a quarrel between Surekha, Surekha’s mother, Surekha’s aunt and Surekha’s uncle on one side and the mother of the applicant on the other. At that time, Surekha, the complainant was washing clothes outside the house. 4] Surekha said that while this was going on, the applicant picked up Shreya and went up-stairs. She said that she saw the applicant throwing Shreya down from the terrace. She said she then took Shreya to (3) CR.APP. 2175.2009 hospital. But despite treatment, Shreya succumbed at about 6:00 pm. The other witnesses viz: Surekha’s mother, aunt and uncle reiterated the same story. 5] The learned Advocate appearing for the applicant tried to suggest that neither the complainant nor the witnesses on her side could have seen the applicant taking Shreya upstairs and they could not have seen the applicant throwing down the child. She said that the narration of the complainant and the other witnesses to that extent is false and exaggerated. She argued, from the location where the complainant, her witnesses and applicant’s mother were quarreling, the terrace portion from where the applicant had allegedly thrown the child, was not visible. In order to clarify this aspect of the matter as per my request, the applicant’s Advocate brought on record few photographs of the house. The Police also provided a makeshift location map with the scene of offence panchanama. 6] With the help of the location map, as well as the photographs, it is clear to me that the house is a properly constructed structure having few rooms on the ground floor and a large terrace on the first floor. The house has a large porch like structure in front of the house. The photographs also depict (4) CR.APP. 2175.2009 that on one side of the house, there is a cattle shed and in front of the cattle shed there is clothes washing place. The complainant, her witnesses did not clarify as to whether the quarrel took place near the washing place or inside the house. If we assume that quarrel took place near the washing place or thereabout, they could not have seen anyone standing on the terrace of the house. If we assume that the quarrel took place in the house probably they could have seen applicant taking the child in her lap and climbing the stair case. But they have not stated specifically that the quarrel took place inside the house. The complainant said when the quarrel started she was washing clothes outside the house. So, it is prima facie seen that the complaint as well as the statements of the eye witnesses to some extent are exaggerated. Still if we assume that the quarrel took place in the house and the complainant and others could see the applicant taking the child upstairs, the place of the terrace from where probably the child was thrown was not visible from the rooms in the house. Thus there remains a strong possibility that the applicant threw the child across the parapet well on the ground, causing fatal injury to her. Yet there is another possibility that some other member of the family, who was not participating in the quarrel could have committed this offence. (5) CR.APP. 2175.2009 7] The applicant in my view, deserves bail. As said above the first reason is that there is probably exaggeration in the account of the complainant and the eye witnesses. As said above, probably they did not see the applicant taking the child to the first floor and throwing her down. The second and equally justifiable reason for granting bail is the applicant’s age and sex. She is a young woman aged 21 years. I am rather inclined to give advantage to the applicant taking recourse of the proviso to section 437 of the Code of Criminal Procedure which treats women, aged and infirm persons differently. 8] The applicant is released on bail of Rs.15000/- (Rs.Fifteen Thousand) with one surety in the like amount. 9] The observations in this order are made only for the purpose of deciding the bail application. They shall not influence the trial Court. 10] Criminal Application stands disposed of. Sd/- (A.V. NIRGUDE, J.) arp/14july9/cr2175.09