Holding

The conviction under Section 304 Part II read with Section 34 IPC is upheld as justified, but the sentence is reduced to the period already undergone.

Summary

The appellant, Sau Panchashila Dada Messhram, and her husband confined their two‑year‑old daughter in a bathroom for 14 days without food or water, leading to the child's death by starvation. The trial court convicted them under Section 302 read with Section 34 IPC and sentenced them to life imprisonment; the High Court altered the conviction to Section 304 Part II read with Section 34 and imposed six years' rigorous imprisonment. The appellant challenged the conviction and sentence before the Supreme Court, arguing lack of intent to kill. The Court held that the evidence established that the parents had definite knowledge that confinement would cause starvation and death, justifying conviction under Section 304 Part II with Section 34, but found mitigating circumstances warranting reduction of the sentence to the period already served. Consequently, the appeal was partly allowed: the conviction was upheld and the sentence reduced.

Issues considered

The appropriateness of convicting the appellant under Section 304 Part II read with Section 34 IPC instead of Section 302 IPC.
Whether the evidence establishes the requisite knowledge and intent for culpable homicide not amounting to murder.
Whether the six‑year rigorous imprisonment sentence is appropriate in view of the appellant's personal circumstances.
Whether the conviction should be set aside on the ground of lack of deliberate intention to kill.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 109, s. 302, s. 304 Part II, s. 34, s. 342

Subjects

homicidal deathchild starvationculpable homicide not amounting to murderSection 34 IPCblack magicsentencingappeal

Judgment

' ,_
[2009] 15 (ADDL.) S.C.R. 994 l
\

A . SAU PANCHASHlLA DADA MESSHRAM
v.
STATE OF MAHARASHTRA
i..'
(Criminal Appeal No. 230 of 2003)
\
NOVEMBER 17, 2009 ~
;,. .
B
.(8. SUDERS HAN REDDY AND J.M. PANCHAL, JJ.]
Penal ·code, 1860:
s.304 Part llrlw s.34 - Parents of,two year girl child +
confined her in bathroom for 14 days without food and water-
c Child died due to starvation - Conviction of child's parents by
I
trial court uls.302rlws.34-Altered by High Court to one uls:304
Part II rlw s. 34 - Both parents sentenced to 6 years R. I. - On
appeal by mother, held: The child's.mother (appellant) and
father had definite knowledge that their act of confining the child
D in bathroom would result in her starvation which was likely to
;~

cause her death - Hence, conviction of appellant-mother ul
'
y
s.304, Part JI just and well-founded- However, in peculiar facts
and circumstances of the case, sentence imposed on
appellant reduced to period already undergone by her.

E According to prosecution, at the instigation of a
practitioner of black magic/sorcery, appellant alongwith
her husband wrongfully confined their two year old girl 'r-=
child in a bathroom for 14 days without food and water,
as a result of which she died of starvation. The trial Court
convicted appellant and her husband u/s.302 r/w s.34 IPC ... ;
F and sentenced them to life imprisonment. On appeal, the
~·
High Court altered tl)e conviction of appellant and her
husband to one uls.304 Part II r/w s.34 IPC on the ground i
'
that there was no deliberate intention on part of appellant '
and her husband to kill the child, though they had
G knowledge that their action would result in injury which
was likely to cause death of the child and sentenced them
to RI for 6 years. Appellant challenged his conviction in the ......
.)

present appeal. /.

Partly allowing the appeal, Jhe Court
H 994

,_
'
SAU PANCHASHILA DADA MESSHRAM v. STATE 995
OF MAHARASHTRA
HELD:1.1. The finding that the child died a homicidal A
~ ,, death is not challenged. The finding recorded by the High
Court that the appellant and her husband had confined
their child in the bathroom of their rented premises for a
period of 14 days is based on analysis and appreciation
of evidence tendered by prosecution witnesses, more
B
particularly evidence of the landlord, examined as PW-5
and that of his son (PW-7). The fact that the child died due
to starvation is amply proved by the testimony of Medical
I
• Officer who performed autopsy and contents of the post
mortem notes. The fact that child was found dead in the
bathroom is also established by the reliable and c
trustworthy testimony of PW-6. The appellant 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 Indian Penal Code could be pointed out by 0
the appellant. After fully discussing evidence, the High
! -4 Court came 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. [Para 7] [1000-A-E] E
1.2. The High Court, in effect confirmed the finding
recorded by the trial court that the appellant and her
husband had confined their child in a bathroom and
'>
caused her death by not providing food and water. The
finding recorded by the High Court that the appellant and F
her husband had definite knowledge that their act of
confining deceased in a bathroom would result into her
starvation which was likely to cause her death and,
therefore, the appellant committed offence punishable
under Section 304, Part II IPC is eminently just and well- G
founded. Therefore, the conviction of the appellant
recorded under Section 304, Part II read with Section 34
<\ IPC is not liable to be interfered with. [Para 7] (100-E-G]
'
1.3. However, as far as the que~tion of sentence is
H

~
996 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A concerned, at the time of incident, the appellant was in
advanced stage of her pregnancy and had given birth to
" '(.

a girl child who 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
,.
B
out of the bathroom. S_uch 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
c in the circumstances of the case, interest of justice would
be served if conviction of the appellant under Section 304,
Part II, read with Section 34 IPC is maintained and the
sentence is reduced to the period already undergone by
her. [Para 8] [1000-G-H; 1001-A-C]
D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 230 of 2003. \-- ~
'
From the Judgment & Order dated 15.07.2002 of the High ~
Court of Judicature at Barnaby, Bench at Nagpur in Criminal
Appeal No. 414 of 1997.
E Anangha A. Desai, Satyajit A. Desai for the Appellant.
RK. Adsure (NP) for the Respondent.
The Judgment of the Court was delivered by
J.M. PANCHAL, J. 1. This appeal by special leave is
directed against Judgment dated July 1$, 2002 rendered by the
F High Court of Judicature at Bombay, Nagpur Bench, Nagpur in r
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 RI. for life and fine of Rs.500/- in
t
default R. I. for nine months for commission of offence punishable
G under Section 302 read with Section 34 as wefl as R. I. for six
months and fine of Rs.500/- in default RI. 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
H
SAU PANCHASHILA DADA MESSHRAM v. STATE 997
OF MAHARASHTRA [J.M. PANCHAL, J.]

Code and sentenced to R. I. for six years. A
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 B
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 C
advanced stage of her pregnancy. The original accused No.3,
i.e., Daulatbaba used to visit residence of the 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- D
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 E
a bathroom for 14 days. The bathroom was admeasuring 3.4 x
4.4 feet. Neithe1>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 F
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., G
her 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 H
998 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R

A 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
8 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
C of the Code of Criminal Procedure, '197.3. 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. -
4. On appreciation of evidence adduced by the prosecution
o the learned Judge held that it was satisfactorily proved that
deceased Rani had died homicidal death. According to th·3
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
E Judge further held that it was proved that the appellant and he1
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
F 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 aci:- 1..:::.ed. After
hearing the learned counsel for the parties the three accused
G were sentenced to RI. for six months and fine of Rs.500/- in
default RI. for one month for commission of offence punishable
under Section 342 read 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
H Section 302 read with Section 109 of the Indian Penal Code.
SAU PANCHASHILA DADA MESSHRAM v. STATE 999
OF MAHARASHTRA [J.M. PANCHAL, J.]
As far as the appellant and her husband are concerned, each of A
' ~
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 B
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 c
which his conviction under Section 342 read with Section 34, IPC
as well as under Section 302 read with SP.ction 109 of the Indian
Penal Code was liable to be set aside. The High Court further
held that there was no deliberate intention on the part of the
present appellant and her husband to kill their daughter, Rani, D
4 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
E
Code. After convicting the appellant and her husband under
SPr:+:on 304 ?art II read with Section 34 of the Indian Penal
Jde, tt·iey 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 F
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
G
years by filing the instant appeal.
6. This Court has heard the learned counsel for the parties
A
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
H
1000 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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
B
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
c 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 Indian Penal Code could be pointed out by
D the learned counsel for the appellant. After fully discussing
evidence, the High Court has come to the conclusion that th~ ...
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
queslign. The High Court, in effect has confirmed the finding
E 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 ..
F 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 n;::;nion 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
G instant appeal.
8. However, as far as the question of sentence is concerned, j;
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
H adduced by the prosecution indicates that the husband of the t·
SAU PANCHASHILA DADA MESSHRAM v. STATE 1001
OF MAHARASHTRA [J.M. PANCHAL, J.]

appellant was coming near the bathroom with a cane so as to A
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
B
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 11, read with Section 34 of the
Indian Penal Code is maintained and the sentence is reduced
to the period already undergone.
9. For the foregoing reasons, the appeal partly succeeds. C
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 sentence is reduced to the
period already undergone by her. The appeal is allowed to the
extent indicated hereinabove. D
8.8.B. Appeal partly allowed.