The prosecution must prove foundational facts before the burden shifts to the accused under Section 106 of the Evidence Act; conviction based solely on this section is unsustainable.

ORDER :

ILESH J. VORA, J.

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Roshanben Altafhussain Notiyar, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 120B and 114 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated20.03.2020 and order of sentence passed in Sessions Case No. 67 of 2016, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file appeal as well as this application are that the accused Roshan Altaf is the second wife of Altaf Notiyar. The deceased Zahir aged about 7 years was born out from the earlier wedlock allegedly performed with Rehana, who died due to cancer. According to case of the prosecution, on 06.09.2006 at about 8.15 pm, the accused Altaf and present applicant accused Rehana, beaten Zahir and threw him down the floor at the home and thereafter, the applicant accused sat on Zahir’s stomach and hold both his hands, meanwhile, the accused Altaf took a pillow and pressed it on the face of the deceased till he died and thereafter he went to his work, whereas, the applicant accused remained at the house. On the same day, the deceased was taken to company’s hospital, where he was treated by PW-11 Dr. Mihir and at relevant time, he was conscious and after giving treatment to him, he was discharged and thereafter, on 07.09.2006, at about 1.37 pm the staff nurse called Dr. Mihir that the child Zahir find difficulty in breathing and he was brought in ambulance. The deceased child thereafter died. The Postmortem was done by PW-12 and according to opinion of the panel doctor, the child died as a result of asphyxiation due to smothering. In these background facts, the prosecution was lodged against the father and mother of the child. During the investigation, the confessional statement in the form of discovery in terms of Section 27 of the Evidence Act being made before the police and accused Altaf confessed his guilt and described the manner in which the child was killed by him along with his wife. At the end of investigation, the chargesheet came to be filed and accused were put on trial. The entire case rests on the circumstantial evidence. The Court below after appreciation of the evidence, convicted the wife Rehana applicant for the murder of child and acquitted the husband Altaf by giving benefit of doubt to him. The conviction rendered to the applicant Rehana principle based on the non-explanation, by the Rehana with regard to the injuries sustained by the deceased. The court below has observed against the applicant accused that she was at home with the deceased and she was having knowledge about the injuries sustained by the deceased and therefore, with the aid of Section 106 of the Evidence Act, the court has presumed that the deceased was the author of the murder.

5. We have heard learned Senior counsel Mr. I.H. Syed assisted by Mr. Amaan Syed and Mr. Jay Mehta, learned Additional Public Prosecutor for the respondent State.

6. Mr. I.H. Syed, learned senior counsel assailing the impugned judgment of conviction and order of sentence, submits that, the court below with the aid of Section 106 of the Evidence Act, held guilty the accused for the murder of child. According to prosecution case, in a first attempt to commit murder, the accused Rehana and her husband beaten up the child and with took the pillow and smothered the face of the deceased, as a result of which, she sustained a fatal injuries and thereafter, deceased was taken to the hospital, where he was alive and after 3 to 4 hours, on the basis of phone call made by the hospital nurse to the treating doctor, deceased brought in an ambulan