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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