NAGARATHINAM vs. STATE THROUGH THE INSPECTOR OF POLICE

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1389 OF 2023 (@ SPECIAL LEAVE PETITION (CRL.) NO.369 OF 2023 ) NAGARATHINAM … APPELLANT VERSUS STATE THROUGH THE INSPECTOR OF POLICE … RESPONDENT J U D G M E N T AHSANUDDIN AMANULLAH,J. Leave granted. 2. The present Appeal is directed against the Final Judgment and Order dated 05.08.2019 (hereinafter re- ferred to as the “Impugned Judgment”) passed by the Signature Not Verified Madurai Bench of the Madras High Court partly allow- Digitally signed by RASHMI DHYANI Date: 2023.05.04 20:00:51 IST Reason: ing Criminal Appeal (MD) No. 186 of 2019 (hereinafter 2 referred to as the “High Court”) filed by the Appel- lant. THE FACTUAL PRISM: 3. The Appellant is stated to have had an affair with one Suresh, who used to threaten her often. This led her to take the decision to commit suicide along with her children. Pursuant to her decision to adopt such a course of action, she bought pesticides meant for plants and administered poison to her two chil- dren, twins named Ramar and Laxmanan. Thereafter, when the appellant poured the pesticide in a tumbler to consume it herself, her niece pushed it down. How- ever, unfortunately, the two children were declared dead on arrival in the hospital leading to the insti- tution of FIR No.115 of 2003 dated 28.03.2003 at Sem- patty Police Station under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). 4. Upon trial, the learned Additional District and Sessions Judge (Fast Track Court), Dindigul by Judg- ment and Order in Sessions Case No. 92 of 2004 dated 3 10.01.2005 convicted the appellant under Sections 302 and 309 of the IPC and sentenced her to undergo life imprisonment. It also imposed a fine of Rs.5,000/- for each offence totalling Rs.10,000/- and for the offence of attempting to commit suicide, she was ordered to undergo simple imprisonment for a period of one year and fined Rs.1,000/-, failing which she would undergo simple imprisonment for a further period of three months under Section 309, IPC. 5. In appeal, the High Court partly allowed the Ap- pellant’s plea by acquitting the Appellant under Sec- tion 309, IPC while upholding the conviction under Section 302, IPC. 6. The Appellant having suffered imprisonment for al- most 20 years applied for premature release. However, the recommendation of the State Level Committee was rejected by the State of Tamil Nadu vide G.O.(D) No. 1127 dated 24.09.2019, considering the cruel and bru- tal nature of the offence(s) committed by her. 4 SUBMISSIONS BY THE APPELLANT: 7. Learned senior counsel for the Appellant submitted that even if it is assumed that she had tried to com- mit suicide along with her children by consuming poison, the same was due to sudden provocation which falls under Exception 1 to Section 300 of the IPC. Furthermore, the Appellant being the mother taking the extreme course of family suicide, alongwith her two sons is an extenuating circumstance covered under Exception 1 to Section 300 of the IPC. And, when the mother had survived/escaped and the children died, it would be punishable under Section 304 Part I of the IPC. In this connection, reliance was placed on the decisions of learned Division Benches of the Madras High Court in Guruswami Pillai v State , 1991 (1) MWN (Cr.) 153 and Suyambukkani v State , 1989 SCC OnLine Mad 481 . 8. In the alternative, learned senior counsel vehe- mently canvassed that the Appellant should, at least, be given the benefit of G.O.(Ms) No. 64 of the Home (Prison-IV) Department dated 01.02.2018, in view of the long period of incarceration and the fact that 5 the State Level Committee comprising the District Au- thorities and Prison Department on 16.02.2018 [refer- ence seems to be to the Additional Director General of Police/Inspector General of Prisons Letter No.4369/PS1/2018] had recommended release of the ap- pellant on account of her undisputed affirmative con- duct and long incarceration and thus, the order of rejection of release dated 24.09.2019 by the State of Tamil Nadu vide G.O.(D) No. 1127, on the ground of cruel and brutal nature of the offence, be considered erroneous and needs to be interfered with by this Court. SUBMISSIONS OF THE RESPONDENT-STATE: 9. Learned counsel for the sole Respondent-State opposing the prayers forcefully urged that the act(s) committed by the Appellant was cruel and brutal as young children were administered poison and put to death and rightly, the premature release of the Ap- pellant had been refused by the State. On merits, it was submitted that both the Trial Court and the High Court had carefully considered all aspects of the 6 matter, and not finding any merit, the High Court had upheld the conviction under Section 302 of the IPC. ANALYSIS, REASONING AND CONCLUSION: 10. Having considered the matter in detail, this Court finds that the circumstances in which the Ap- pellant is said to have administered poison to her two sons is clearly reflective of her being under a state of tremendous mental stress. However, despite the best efforts of learned senior counsel for the Appellant, it is difficult to grant the benefit of bringing the case under the ambit of culpable hom- icide not amounting to murder. 11. It would be useful to reproduce Sections 299, 300, 302 and 304 of the IPC, which read as under, be- fore proceeding further:

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12. In the facts and circumstance of the present case, we find the scenarios put forth by the Appel- lant not covered under the exceptions enumerated un- der Section 300 of the IPC. More so, when there was no consent from the persons who were fed and died upon consuming the pesticide administered by the Ap- pellant. In Guruswami Pillai ( supra ), the father had caused the death of his minor daughter by cutting her throat with a blade and had also attempted to commit suicide. During the trial, it had emerged that both the father and the daughter had taken a joint de- cision that they should end their lives. And thus, in that background, both with regard to mental status, social status, financial status and the attending 13 circumstances, the High Court therein had found it prudent to give a benefit by converting the convic- tion from Section 302, IPC to one under Section 304 Part I, IPC. 13. Similarly, in the case of Suyambukkani ( supra ) immediately before the incident which led to his wife drowning herself with two children, besides there be- ing a history of her being abused and beaten up by the accused therein, the immediate provocation was that she was beaten up just a day prior to the fate- ful incident, and also in the morning and at lunch time, which provoked her to immediately try to take her life along with her two children by jumping into a well from where they were taken out. But the two children died, and she was saved and convicted on two counts under Section 302 IPC as also under Section 309 IPC by the trial court. It is noteworthy that even the children were abused by their father as dur- ing the post-mortem of the two children, several ab- rasions were found on their dead bodies and the med- ical examination of the accused revealed injuries on her body and the stand taken on her behalf was that 14 as a mother she wanted to commit suicide and thought it her duty not to abandon her progeny as she could not reconcile herself with the idea of dying alone, leaving her children behind. 14. As such, both cases pressed into service by the Appellant turned on their own facts. Indeed, they were also noted by the High Court. They need not de- tain us further. Even on the anvil of State of Andhra Pradesh v Rayavarapu Punnayya , (1976) 4 SCC 382 , the Appellant is not benefitted. We have also factored in State of Uttarakhand v Sachendra Singh Rawat , (2022) 4 SCC 227 . 15. Be that as it may, the Court is not pursuaded to convert the conviction from Section 302, IPC to one under Section 304 Part I, IPC. 16. However, on the issue of premature release, it is not in dispute that the benefit of premature re- lease to prisoners in case of life convicts is min- imum completion of ten years of incarceration as on 25.02.2018, and for such purpose in G.O.(Ms) No. 64 dated 01.02.2018, there is a State Level Committee empowered to make such recommendations. In the 15 present case, the positive recommendation of the State Level Committee for premature release of the Appellant, has been rejected by the State on the ground that the Appellant had administered poison to murder her two sons to continue her illicit relation- ship without any hinderance, which act was cruel and brutal in nature. 17. Pausing here, the Court would note that the Ap- pellant never tried to murder her sons with a view to continue her illicit relationship. On the contrary, she had tried to commit suicide herself along with her children not with a view to continue her illicit relationship with her paramour but rather, in disap- pointment and frustration over the quarrel picked up by her paramour. This Court is not an institution to sermonise society on morality and ethics and we say no further on this score, bound as we are, by the brooding presence of the rule of law. 18. That said, it cannot be simply bracketed as a ‘ cruel and brutal ’ offence as the Appellant herself was trying to end her life but was prevented by her niece in the nick of time. Moreover, the recommenda- 16 tion of the State Level Committee conveyed by the Ad- ditional Director General of Police/Inspector General of Prisons by way of Letter No.4369/PS1/2018 dated 16.02.2018 also notes her undisputed reflective con- duct as also the long period of incarceration already undergone. 19. Thus, this Court feels that there is no valid reason/justifiable ground for the State not accepting the recommendation of the State Level Committee for premature release of the Appellant. We are not obli- vious to the crime but we are equally not oblivious to the fact that the Appellant (mother) has already suffered at the cruel hands of fate. The reason thereof is an arena this Court would avoid entering. 20. For reasons aforesaid, the order of the State of Tamil Nadu ` as contained in G.O. (D) No. 1127 dated 24.09.2019 issued by the Home (Prison-IV) Department, under the signature of Additional Chief Secretary to Government, rejecting the prayer for premature re- lease of the Appellant, is set aside. 21. The Appellant is held entitled to the benefit of premature release as per G.O.(Ms) No. 64 dated 17 01.02.2018 issued by the Home (Prison-IV) Department, under the signature of Additional Chief Secretary to Government. 22. Accordingly, the Appellant is directed to be re- leased forthwith, if not required in any other case. 23. The Appeal stands disposed of in the aforemen- tioned terms. .....................,J. [ AJAY RASTOGI ] ......................., J. [ AHSANUDDIN AMANULLAH ] NEW DELHI MAY 04, 2023 18 ITEM NO.1501 COURT NO.2 SECTION II-C (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s).369/2023 NAGARATHINAM Petitioner(s) VERSUS STATE THROUGH THE INSPECTOR OF POLICE Respondent(s) ([HEARD BY: HON. AJAY RASTOGI AND HON. AHSANUDDIN AMANULLAH, JJ.] IA No. 19661/2023 - APPROPRIATE ORDERS/DIRECTIONS IA No. 202464/2022 - EXEMPTION FROM FILING O.T. IA No. 3774/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 04-05-2023 This petition was called on for pronouncement of judgmnet today. For Petitioner(s) Mr. S. Nagamuthu, Sr. Adv. Mr. S. Prabu Rama Subramanian, Adv. Mr. Raghunatha Sethupathy B, AOR Mr. Bharathimohan M, Adv. Mr. Karuppiah Meyyappan, Adv. Mr. Vairavan, Adv. Ms. Priya R, Adv. Mr. Sabari Balapandian, Adv. Mr. Avinash Kumar, Adv. For Respondent(s) Dr. Joseph Aristotle S., AOR Ms. Vaidehi Rastogi, Adv. Leave granted. Hon’ble Mr. Justice Ahsanuddin Amanullah pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi and His Lordship. 19 The appeal stands disposed of in terms of the signed reportable judgment. The appellant is directed to be released forthwith. Pending applications stand disposed of. (RASHMI DHYANI PANT) (RENU BALA GAMBHIR) COURT MASTER COURT MASTER (signed reportable judgment is placed on the file)