Bombay High Court
Dipika Manish Parmar vs State Of Maharashtra on 10 July, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
2023:BHC-AS:19080-DB
Digitally
signed by
VARSHA
VARSHA VIJAY
VIJAY RAJGURU
RAJGURU Date:
2023.07.11
17:48:08
+0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
varsha CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3714 OF 2022
IN
CRIMINAL APPEAL NO. 46 OF 2023
Dipika Manish Parmar ... Applicant/Appellant
vs.
The State of Maharashtra ... Respondent
Mr P.V. Vare, for the Applicant/Appellant.
Mr V.B. Konde Deshmukh, A.P.P for the State.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
DATED : 10th JULY, 2023
P.C. :-
1. Heard learned counsel for the parties.
2. By this application, the applicant seeks suspension of his
sentence and enlargement on bail, pending the hearing and final
disposal of the aforesaid appeal.
3. The applicant vide Judgment and Order dated 20 th April
2022, passed by learned Sessions Judge, Mumbai in Sessions
Case No. 508 of 2011, has been convicted and sentenced as
under:-
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- for the offence punishable under Section 302 of the
Indian Penal Code, and sentence of life imprisonment and
to pay fine of Rs. 5,000/- in default, to suffer simple
imprisonment for 3 months;
- for the offence punishable under Section 317 of the
Indian Penal Code, to suffer rigorous imprisonment for 3
years.
Both the aforesaid sentences are directed to
run concurrently.
4. Perused the papers. The prosecution case rest entirely
on circumstantial evidence. According to the prosecution, the
incident took place on 26th October 2010 at K.E.M Hospital,
Ward No. 2, Parel, Mumbai-12. It is alleged that the applicant
gave birth to twins i.e. one male and one female child and after
delivering threw the female child from the bathroom window
and as such, committed offences punishable under Sections 317
and 302 of the IPC.
5. Learned counsel for the applicant submits that the
prosecution's case rests on circumstantial evidence and that the
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only circumstance against the applicant is, an extra judicial
confession. He submits that as far as CCTV footage is
concerned, which allegedly shows that the applicant was with the
child when she went to the bathroom and when she returned,
she did not have the child with her, was not produced by the
prosecution. He further submits that in any event, the
prosecution has not placed on record the Section 65B certificate
to prove the said footage. He submits that in the absence of any
cogent evidence, the applicant could not have been convicted by
the Trial Court.
6. Learned counsel for the Applicant further submits that on
the contrary, soon after the incident, the applicant raised hue and
cry, that her child has been stolen pursuant to which the child
was found behind the hospital building. He submits that the
baby was found lying on a pillow like cloth, surrounded by mud,
water etc. He submits that evidence shows that one ear of the
child was missing and that it is the prosecution's case that the rats
might have eaten the ear. He submits that since soon after the
incident, the child was traced i.e. (was found lying on pillow like
cloth, with a ear missing) and as such it is difficult to believe, that
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the applicant had thrown the child out of the window.
7. Prima facie, an extra judicial confession is the only
circumstance against the applicant. Admittedly, the prosecution
has not placed on record the Section 65 B certificate nor has the
CCTV footage, been proved by the prosecution.
8. It is also not in dispute that whilst on bail, the applicant
has not abused or misused the liberty granted to her. The
Applicant's Appeal is admitted on 12th January 2023 and the
same is not likely to be heard immediately.
9. Considering what is stated aforesaid, the application is
allowed and the applicant's sentence is suspended and she is
enlarged on bail, pending the hearing and final disposal of the
aforesaid appeal, on the following terms and conditions:-
ORDER
i) The applicant be enlarged on bail on
furnishing P.R.Bond in the sum of Rs. 10,000/- with one or
two sureties in the like amount;
ii) The applicant shall report to the trial Court,
19-ia-3714-appeal-46-23.docx
once in four months on the day/date specified by the trial
Court, till the appeal is finally disposed of;
iii) The applicant shall keep the trial Court
informed of her current address and mobile contact
number and/or change of residence or mobile details, if
any, from time to time;
iv) If there are two consecutive defaults in
appearing before the trial Court, the learned Judge shall
make a report to the High Court and the prosecution
would be at liberty to file an application seeking
cancellation of bail.
10. The Application is allowed in the aforesaid terms and is
accordingly disposed of.
11. All concerned to act on the authenticated copy of this
order.
(GAURI GODSE, J.) (REVATI MOHITE DERE, J.)
