- (1.) 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 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 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.;