Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 230 OF 2003

Sau Panchashila Dada Messhram ... Appellant

Versus

State of Maharashtra

..Respondent

J U D G M E N T

J.M. PANCHAL, J.

This appeal by special leave is directed against

Judgment dated July 15, 2002 rendered by the High Court

of Judicature at Bombay, Nagpur Bench, Nagpur in

Criminal Appeal No.414 of 1997 by which the conviction of

the appellant under Section 302 read with Section 34 of

the Indian Penal Code as well as under Section 342 read

with Section 34 and imposition of sentence of R.I. for life

and fine of Rs.500/- in default R.I. for nine months for

commission of offence punishable under Section 302 read

with Section 34 as well as R.I. for six months and fine of

Rs.500/- in default R.I. for one month for commission of

the offence punishable under Section 342 read with

Section 34, is altered and the appellant is convicted under

Section 304, Part II read with Section 34 of the Indian

Penal Code and sentenced to R.I. for six years.

2.The facts emerging from the record of the case are as

under:

Dada, son of Shivram Meshram, who was

original accused No.1, is the husband of the present

appellant. Daulat, son of Bajirao Dudhpachare, was

teacher by profession. However, he left the said job and

started performing black magic. He was also doing sorcery

and had large followers. The followers were knowing him

as Daulatbaba. The appellant and her husband were

ardent followers of Daulatbaba, who was original accused

No. 3. The appellant had three children – one son and two

daughters. At the time of the incident, the appellant was

in advanced stage of her pregnancy. The original accused

No.3, i.e., Daulatbaba used to visit residence of the

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appellant and on one occasion had performed certain

rituals in her house. The original accused No. 3 had told

the appellant and her husband that their last child Rani,

who was two years old, would bring ill-luck to them and,

therefore, it was necessary to perform certain rituals. He

had also warned the appellant and her husband to get

Rani out of his sight whenever he was to visit their

residence. According to the prosecution as a result of the

command given by Daulatbaba, the appellant and her

husband confined Rani in a bathroom for 14 days. The

bathroom was admeasuring 3.4 x 4.4 feet. Neither the

appellant nor her husband gave food or water to the child

at all, as a result of which child Rani died of starvation on

August 14, 1996. The appellant and her husband were

residing in a rented premises belonging to Rajratan Ragari.

At 11 a.m. on August 14, 1996 the landlord, i.e., Rajratan

came to know about the death of Rani. He went into

bathroom and saw the dead body lying there, after which

he went to the police station and lodged First Information

Report. In view of the contents of the First Information

Report, investigation was commenced. On the conclusion

of investigation, the appellant and two others, i.e., her

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husband and Daulatbaba were charge-sheeted for

commission of offences punishable under Sections 342

and 302 read with Section 34 of the Indian Penal Code.

3.As the offence punishable under Section 302 is

exclusively triable by a Court of Sessions, the case was

committed to the Court of the learned Additional Sessions

Judge, Bhandara for trial. The learned Judge framed

charges against the three accused. The same were read

over and explained to them. The appellant and others did

not plead guilty to the charge and claimed to be tried.

Therefore, several witnesses were examined and

documents produced by the prosecution to prove its case

against the accused. On completion of recording of

evidence of prosecution witnesses, the learned Judge

explained to the accused the circumstances appearing

against them in the evidence of prosecution witnesses and

recorded their further statements as required by Section

313 of the Code of Criminal Procedure, 1973. The case of

the accused was that of total denial but none of the

accused examined any witness in support of the claim that

he/she was innocent.

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4.On appreciation of evidence adduced by the

prosecution the learned Judge held that it was

satisfactorily proved that deceased Rani had died

homicidal death. According to the learned Judge it was

established by the prosecution that all the three accused

had wrongfully confined Rani in bathroom for about 14

days and committed offence punishable under Section 342

read with Section 34 of the Indian Penal Code. The

learned Judge further held that it was proved that the

appellant and her husband had intentionally or knowingly

killed Rani and committed offence punishable under

Section 302 read with Section 34 of the Indian Penal code.

The learned Judge also concluded that original accused

No. 3, i.e., Daulatbaba had abetted the offence of murder

of Rani and committed offence punishable under Section

302 read with Section 109 of Indian Penal Code.

Thereafter the learned counsel for the parties were heard

on the question of the sentences to be imposed on the

accused. After hearing the learned counsel for the parties

the three accused were sentenced to R.I. for six months

and fine of Rs.500/- in default R.I. for one month for

commission of offence punishable under Section 342 read

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with Section 34 of the Indian Penal Code. The original

accused No.3, i.e., Daulatbaba, was sentenced to suffer

R.I. for life and pay fine of Rs.5,000/- in default R.I. for

nine months for commission of offence punishable under

Section 302 read with Section 109 of the Indian Penal

Code. As far as the appellant and her husband are

concerned, each of them was sentenced to suffer R.I. for

life and fine of Rs.500/- and in default R.I. for nine

months for commission of the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code.

5.Feeling aggrieved by the conviction and imposition of

different sentences, all the three accused preferred

Criminal Appeal No. 414/97 in the High Court of

Judicature at Bombay, Nagpur Bench, Nagpur. The

Division Bench held that no reliable evidence was adduced

to prove that the original accused No.3, i.e., Daulatbaba

was performing black magic or sorcery and child Rani was

confined into bathroom at his instigation as a result of

which his conviction under Section 342 read with Section

34, IPC as well as under Section 302 read with Section

109 of the Indian Penal Code was liable to be set aside.

The High Court further held that there was no deliberate

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intention on the part of the present appellant and her

husband to kill their daughter, Rani, but they definitely

had knowledge that their action would result in injury

which was likely to cause death of their child, Rani, and

therefore their conviction should be altered from Section

302 read with Section 34 of the Indian Penal Code to one

under Section 304, Part II, read with Section 34 of the

Indian Penal Code. After convicting the appellant and her

husband under Section 304 Part II read with Section 34 of

the Indian Penal Code, they were sentenced to undergo

R.I. for six years. It may be mentioned that the husband

of the appellant was not enlarged on bail during the

pendency of the trial and appeal and has served out the

sentence imposed by the High Court for commission of the

offence punishable under Section 302 read with Section

34 of the Indian Penal Code. Therefore, the appellant alone

has approached the Supreme Court challenging her

conviction under Section 304 Part II read with Section 34

of the Indian Penal code and imposition of sentence of R.I.

for six years by filing the instant appeal.

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6.This Court has heard the learned counsel for the

parties and considered the documents forming part of the

appeal.

7.The finding that deceased, Rani, who was a child of

tender age, died a homicidal death is not challenged before

this Court. The finding recorded by the High Court that

the appellant and her husband had confined their child,

Rani, in the bathroom of rented premises for a period of 14

days is based on the analysis and appreciation of evidence

tendered by prosecution witnesses and more particularly

evidence of landlord, Rajratan Ragari, examined as

prosecution witness No. 5 and that of his son whose

evidence was recorded as PW-7. The fact that deceased

died due to starvation is amply proved by the testimony of

Medical Officer who performed autopsy on the dead body

of the deceased and contents of the post mortem notes.

The fact that child, Rani, was found dead in the bathroom

is also established by the reliable and trustworthy

testimony of PW-6. The appellant has failed to show error

in the reasonings or the conclusions of the High court. No

perversity, miscarriage of justice, shocking misreading of

evidence or gross misapplication of the provisions of

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Indian Penal Code could be pointed out by the learned

counsel for the appellant. After fully discussing evidence,

the High Court has come to the conclusion that the

appellant and her husband committed offence punishable

under Section 304, Part II, IPC. There are no reasonable

grounds for believing that the appellant had not committed

the offence in question. The High Court, in effect has

confirmed the finding recorded by the trial court that the

appellant and her husband had confined their child, Rani,

in a bathroom and caused her death by not providing food

and water. The finding recorded by the High Court that

the appellant and her husband had definite knowledge

that their act of confining deceased, Rani, in a bathroom

would result into her starvation which was likely to cause

her death and, therefore, the appellant has committed

offence punishable under Section 304, Part II of the Indian

Penal Code is eminently just and well-founded.

Therefore, this Court is of the firm opinion that the

conviction of the appellant recorded under Section 304,

Part II read with Section 34 is not liable to be interfered

with in the instant appeal.

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8.However, as far as the question of sentence is

concerned, this Court finds that at the time of incident,

the appellant was in advanced stage of her pregnancy and

had given birth to a girl child which had expired soon after

the birth. The evidence adduced by the prosecution

indicates that the husband of the appellant was coming

near the bathroom with a cane so as to prevent the

deceased from coming out of the bathroom. Such an act is

not attributed to the appellant at all. As on today, the

appellant is of more than 67 years of age. The record

further indicates that the appellant has also a major

daughter, who was aged 10 years at the time of the

incident and a son. On the facts and in the circumstances

of the case, this Court is of the opinion that interest of

justice would be served if conviction of the appellant under

Section 304, Part II, read with Section 34 of the Indian

Penal Code is maintained and the sentence is reduced to

the period already undergone.

10.For the foregoing reasons, the appeal partly

succeeds. The conviction of the appellant recorded by the

High court under Section 304, Part II read with Section 34

of the Indian Penal Code is confirmed. However, the

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sentence is reduced to the period already undergone by

her. The appeal is allowed to the extent indicated

hereinabove.

…………………………J.

[B. Sudershan Reddy]

…………………………J.

[J.M. Panchal]

New Delhi;

November 17, 2009.

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