NAGARATHINAM versus STATE THROUGH THE INSPECTOR OF POLICE on 4 May 2023

SUPREME COURT REPORTS

[2023] 4 S.C.R.

ANAGARATHINAM

v.

STATE THROUGH THE INSPECTOR OF POLICE

(Criminal Appeal No. 1389 of 2023)

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MAY 04, 2023

[AJAY RASTOGI AND AHSANUDDIN AMANULLAH, JJ.]

Premature Release – Appellant had an affair with ‘S’, whothreatened her often – Appellant took decision to commit suicideCalong with her children – Appellant survived – Children died – TrialCourt convicted appellant u/ss. 302 and 309 IPC – High Courtpartly allowed appeal, acquitted appellant u/s. 309 and upheld theconviction u/s. 302 IPC – After undergoing imprisonment for 20years, appellant applied for premature release – However, sameDwas rejected by the State – Held: Appellant was in tremendous mentalstress when she administered poison to her children – Applicationfor premature release was rejected by the State on the ground thatthe appellant had administered poison to murder her two sons tocontinue her illicit relationship without any hinderance, which actwas cruel and brutal in nature – However, the Court would noteEthat the appellant never tried to murder her sons with a view tocontinue her illicit relationship – On the contrary, she had tried tocommit suicide herself along with her children not with a view tocontinue her illicit relationship with her paramour but rather, indisappointment and frustration over the quarrel picked up by herFparamour – Appellant herself was trying to end her life but wasprevented by her niece in the nick of time – There is no valid reason/justifiable ground for the State not accepting the recommendationof the State Level Committee for premature release of the appellant– Thus, order of the State set aside – Appellant entitled to the benefitof premature release – Appellant directed to be released – PenalGCode, 1860 – ss. 302 and 309.

Disposing of the appeal, the Court

HELD: 1. On the issue of premature release, it is not indispute that the benefit of premature release to prisoners in caseHof life convicts is minimum completion of ten years of incarceration as on 25.02.2018, and for such purpose in G.O.(Ms) No. 64 dated01.02.2018, there is a State Level Committee empowered tomake such recommendations. In the present case, the positiverecommendation of the State Level Committee for prematurerelease of the Appellant, has been rejected by the State on theground that the Appellant had administered poison to murderher two sons to continue her illicit relationship without anyhinderance, which act was cruel and brutal in nature. [Para16][1135-A-B]

2. Pausing here, the Court would note that the Appellantnever tried to murder her sons with a view to continue her illicitrelationship. On the contrary, she had tried to commit suicideherself along with her children not with a view to continue herillicit relationship with her paramour but rather, in disappointmentand frustration over the quarrel picked up by her paramour. ThisCourt is not an institution to sermonise society on morality andethics and cannot say further on this score, as is bound, by thebrooding presence of the rule of law. [Para 17][1135-C-D]

3. That said, it cannot be simply bracketed as a ‘cruel andbrutal’ offence as the Appellant herself was trying to end her lifebut was prevented by her niece in the nick of time. Moreover,the recommendation of the State Level Committee conveyed bythe Additional Director General of Police/Inspector General ofPrisons by way of Letter No.4369/PS1/2018 dated 16.02.2018 alsonotes her undisputed reflective conduct as also the long periodof incarceration already undergone. [Para 18][1135-E]

4. Thus, this Court feels that there is no valid reason/justifiable ground for the State not accepting the recommendationof the State Level Committee for premature release of theAppellant. The Court is not oblivious to the crime and to the factthat the Appellant (mother) has already suffered at the cruel handsof fate. The reason thereof is an arena this Court would avoidentering. [Para 19][1135-F]

5. The order of the State of Tamil Nadu as contained inG.O. (D) No. 1127 dated 24.09.2019 issued by the Home (Prison- A

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AIV) Department, under the signature of Additional Chief Secretaryto Government, rejecting the prayer for premature release ofthe Appellant, is set aside. [Para 20][1135-G-H]

State of Andhra Pradesh v Rayavarapu Punnayya,(1976) 4 SCC 382 : [1977] 1 SCR 601; State ofBUttarakhand v Sachendra Singh Rawat, (2022) 4 SCC227 – referred to.

Guruswami Pillai v State, 1991 (1) MWN (Cr.) 153;Suyambukkani v State, 1989 SCC OnLine Mad 481 –referred to.

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Case Law Reference

[1977] 1 SCR 601referred toPara 14

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1389 of 2023.

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From the Judgment and Order dated 05.08.2019 of the High Courtof Judicature at Madras at Madurai in CRLAMD No. 186 of 2019.

Nagamuthu, Sr. Adv., S. Prabu Rama Subramanian, RaghunathaSethupathy B, Bharathimohan M, Ms. Priya R, S. Sabari Bala Pandian,Avinash Kumar, Vairawan, Sudhakar, Vikas, Advs. for the Appellant.E

Dr. Joseph Aristotle S., Ms. Vaidehi Rastogi, Advs. for theRespondent.

The Judgment of the Court was delivered by AHSANUDDIN AMANULLAH, J.F

Leave granted.

2. The present Appeal is directed against the Final Judgment andOrder dated 05.08.2019 (hereinafter referred to as the “ImpugnedJudgment”) passed by the Madurai Bench of the Madras High CourtGpartly allowing Criminal Appeal (MD) No. 186 of 2019 (hereinafterreferred to as the “High Court”) filed by the Appellant.

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 H

NAGARATHINAM v. STATE THROUGH THE INSPECTOR OFPOLICE [AHSANUDDIN AMANULLAH, J.]

commit suicide along with her children. Pursuant to her decision to adoptsuch a course of action, she bought pesticides meant for plants andadministered poison to her two children, twins named Ramar andLaxmanan. Thereafter, when the appellant poured the pesticide in atumbler to consume it herself, her niece pushed it down. However,unfortunately, the two children were declared dead on arrival in the hospitalleading to the institution of FIR No.115 of 2003 dated 28.03.2003 atSempatty 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 Judgment and Order in Sessions CaseNo. 92 of 2004 dated 10.01.2005 convicted the appellant under Sections302 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 orderedto undergo simple imprisonment for a period of one year and finedRs.1,000/-, failing which she would undergo simple imprisonment for afurther period of three months under Section 309, IPC.

5. In appeal, the High Court partly allowed the Appellant’s pleaby acquitting the Appellant under Section 309, IPC while upholding theconviction under Section 302, IPC.

6. The Appellant having suffered imprisonment for almost 20 yearsapplied for premature release. However, the recommendation of theState Level Committee was rejected by the State of Tamil Nadu videG.O.(D) No. 1127 dated 24.09.2019, considering the cruel and brutalnature of the offence(s) committed by her.

SUBMISSIONS BY THE APPELLANT:

7. Learned senior counsel for the Appellant submitted that even ifit is assumed that she had tried to commit suicide along with her childrenby consuming poison, the same was due to sudden provocation whichfalls under Exception 1 to Section 300 of the IPC. Furthermore, theAppellant being the mother taking the extreme course of family suicide,alongwith her two sons is an extenuating circumstance covered underException 1 to Section 300 of the IPC. And, when the mother had survived/escaped and the children died, it would be punishable under Section 304Part I of the IPC. In this connection, reliance was placed on the decisions AB

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Aof learned Division Benches of the Madras High Court in GuruswamiPillai v State, 1991 (1) MWN (Cr.) 153 and Suyambukkani v State,1989 SCC OnLine Mad 481.

8. In the alternative, learned senior counsel vehementlycanvassed that the Appellant should, at least, be given the benefit ofBG.O.(Ms) No. 64 of the Home (Prison-IV) Department dated01.02.2018, in view of the long period of incarceration and the factthat the State Level Committee comprising the District Authorities andPrison Department on 16.02.2018 [reference seems to be to theAdditional Director General of Police/Inspector General of PrisonsCLetter No.4369/PS1/2018] had recommended release of the appellanton account of her undisputed affirmative conduct and long incarcerationand thus, the order of rejection of release dated 24.09.2019 by theState of Tamil Nadu vide G.O.(D) No. 1127, on the ground of crueland brutal nature of the offence, be considered erroneous and needsto be interfered with by this Court.D

SUBMISSIONS OF THE RESPONDENT-STATE:

9. Learned counsel for the sole Respondent-State opposing theprayers forcefully urged that the act(s) committed by the Appellant wascruel and brutal as young children were administered poison and put toEdeath and rightly, the premature release of the Appellant had been refusedby the State. On merits, it was submitted that both the Trial Court andthe High Court had carefully considered all aspects of the matter, andnot finding any merit, the High Court had upheld the conviction underSection 302 of the IPC.

FANALYSIS, REASONING AND CONCLUSION:

10. Having considered the matter in detail, this Court finds thatthe circumstances in which the Appellant is said to have administeredpoison to her two sons is clearly reflective of her being under a state oftremendous mental stress. However, despite the best efforts of learnedGsenior counsel for the Appellant, it is difficult to grant the benefit ofbringing the case under the ambit ofpable homicide not amounting tomurder.

11. It would be useful to reproduce Sections 299, 300, 302 and304 of the IPC, which read as under, be- fore proceeding further:H

“299. Culpable homicide- Whoever causes death by doing anact with the intention of causing death, or with the intentionof caus- ing such bodily injury as is likely to cause death, orwith the knowledge that he is likely by such act to cause death,commits the of- fence of culpable homicide.

(a) A lays sticks and turf over a pit, with the intention ofthereby causing death, or with the knowledge that death islikely to be thereby caused. Z believing the ground to be firm,treads on it, falls in and is killed. A has committed the offenceof culpable hom- icide.

(b) A knows Z to be behind a bush. B does not know it. A,intending to cause, or knowing it to be likely to cause Z’sdeath induces B to fire at the bush. B fires and kills Z. Here Bmay be guilty of no offence; but A has com- mitted the offenceof culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it,kills B, who is behind a bush; A not knowing that he wasthere. Here, although A was doing an unlawful act, he wasnot guilty of culpable homicide, as he did not intend to kill B,or to cause death by doing an act that he knew was likely tocause death.

Explanation 1.—A person who causes bodily injury, toanother who is labouring under a disorder, disease or bodilyinfirmity, and thereby accelerates the death of that other, shallbe deemed to have caused his death.

Explanation 2.—Where death is caused by bodily injury,the person who causes such bodily injury shall be deemed tohave caused the death, although by resorting to properremedies and skilful treatment the death might have beenprevented.

Explanation 3.—The causing of the death of a child in themother’s womb is not homicide. But it may amount to culpablehomicide to cause the death of a living child, if any part ofthat child has been brought forth, though the child may nothave breathed or been completely born.

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SUPREME COURT REPORTS

300. Murder- Except in the cases hereinafter excepted,culpable homicide is murder, if the act by which the death iscaused is done with the intention of causing death, or - Secondly - If it is done with the intention of causing suchbodily injury as the offender knows to be likely to cause thedeath of the person to whom the harm is caused, or - Thirdly - If it is done with the intention of causing bodilyinjury to any person and the bodily injury intended to beinflicted is sufficient in the ordinary course of nature to causedeath, or - Fourthly - If the person committing the act knows that it isso imminently dangerous that it must, in all probability, causedeath or such bodily injury as is likely to cause death, andcommits such act without any excuse for incurring the risk ofcausing death or such injury as aforesaid.

(a) A shoots Z with the intention of killing him. Z dies inconsequence. A commits murder.

(b) A, knowing that Z is labouring under such a diseasethat a blow is likely to cause his death, strikes him with theintention of causing bodily injury. Z dies in consequence ofthe blow. A is guilty of murder, although the blow might nothave been sufficient in the ordinary course of nature to causethe death of a person in a sound state of health. But if A, notknowing that Z is labouring under any disease, gives himsuch a blow as would not in the ordinary course of naturekill a person in a sound state of health, here A, although hemay intend to cause bodily injury, is not guilty of murder, ifhe did not intend to cause death or such bodily injury as inthe ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-woundsufficient to cause the death of a man in the ordinary courseof nature. Z dies in consequence. Here A, is guilty of murder,although he may not have intended to cause Z’s death.

(d) A without any excuse fires a loaded can- non into acrowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to killany particular individual.

Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprivedof the power of self-control by grave and sudden provocation,causes the death of the person who gave the provocation orcauses the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarilyprovoked by the offender as an excuse for killing or doingharm to any person.

Secondly.—That the provocation is not given by anythingdone in obedience to the law, or by a public servant in thelawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anythingdone in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave andsudden enough to prevent the offence from amounting tomurder is a question of fact.

(a) A, under the influence of passion excited by aprovocation given by Z, intentionally kills Y, Z’s child. This ismurder, inasmuch as the provocation was not given by thechild, and the death of the child was not caused by accidentor misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on thisprovocation, fires a pistol at Y, neither intending nor knowinghimself to be likely to kill Z, who is near him, but out of sight.A kills Z. Here A has not committed murder, but merely culpablehomicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited tosudden and violent passion by the arrest, and kills Z. This ismurder, inasmuch as the provocation was given by a thingdone by a public servant in the exercise of his powers.

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(d) A appears as a witness before Z, a Magistrate. Z saysthat he does not believe a word of A’s deposition, and that Ahas perjured himself. A is moved to sudden passion by thesewords, and kills Z. This is murder.

(e) A attempts to pull Z’s nose, Z, in the exercise of theright of private defence, lays hold of A to prevent him fromdoing so. A is moved to sudden and violent passion inconsequence, and kills Z. This is murder, inasmuch as theprovocation was given by a thing done in the exercise of theright of private defence.

(f) Z strikes B. B is by this provocation excited to violentrage. A, a bystander, intending to take advantage of B’s rage,and to cause him to kill Z, puts a knife into B’s hand for thatpurpose. B kills Z with the knife. Here B may have committedonly culpable homicide, but A is guilty of murder.

Exception 2.—Culpable homicide is not murder if theoffender, in the exercise in good faith of the right of privatedefence of person or property, exceeds the power given tohim by law and causes the death of the person against whomhe is exercising such right of defence without premeditation,and without any intention of doing more harm than isnecessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to causegrievous hurt to A. A draws out a pistol. Z persists in theassault. A believing in good faith that he can by no othermeans prevent himself from being horsewhipped, shoots Zdead. A has not committed murder, but only culpable homicide.

Exception 3.—Culpable homicide is not murder if theoffender, being a public servant or aiding a public servantacting for the advancement of public justice, exceeds thepowers given to him by law, and causes death by doing anact which he, in good faith, believes to be lawful and necessaryfor the due discharge of his duty as such public servant andwithout ill-will towards the person whose death is caused.

Exception 4.—Culpable homicide is not murder if it iscommitted without premeditation in a sudden fight in the heatof passion upon a sudden quarrel and without the of fenderhaving taken undue advantage or acted in a cruel or unusualmanner.

Explanation.—It is immaterial in such cases which partyoffers the provocation or commits the first assault.

Exception 5.—Culpable homicide is not murder when theperson whose death is caused, being above the age ofeighteen years, sufffers death or takes the risk of death withhis own consent.

Illustration

A, by instigation, voluntarily causes Z, a person undereighteen years of age to commit suicide. Here, on account ofZ’s youth, he was incapable of giving consent to his own death;A has therefore abetted murder.

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302. Punishment for murder - Whoever commits murdershall be punished with death or imprisonment for life andshall also be liable to fine.

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304. Punishment for culpable homicide not amounting tomurder- Whoever commits culpable homicide not amountingto murder shall be punished with (imprisonment for life), orimprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine, if the actby which the death is caused is done with the intention ofcausing death, or of causing such bodily in jury as is likelyto cause death, Or with imprisonment of either descriptionfor a term which may extend to ten years, or with fine, or withboth, if the act is done with the knowledge that it is likely tocause death, but without any intention to cause death, or tocause such bodily injury as is likely to cause death.”

12. In the facts and circumstance of the present case, we find thescenarios put forth by the Appellant not covered under the exceptions A

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Aenumerated under Section 300 of the IPC. More so, when there was noconsent from the persons who were fed and died upon consuming thepesticide administered by the Appellant. In Guruswami Pillai (supra),the father had caused the death of his minor daughter by cutting herthroat with a blade and had also attempted to commit suicide. During thetrial, it had emerged that both the father and the daughter had taken aBjoint decision that they should end their lives. And thus, in that background,both with regard to mental status, social status, financial status and theattending circumstances, the High Court therein had found it prudent togive a benefit by converting the conviction from Section 302, IPC to oneunder Section 304 Part I, IPC.

C13. Similarly, in the case of Suyambukkani (supra) immediatelybefore the incident which led to his wife drowning herself with twochildren, besides there being a history of her being abused and beatenup by the accused therein, the immediate provocation was that shewas beaten up just a day prior to the fateful incident, and also in theDmorning and at lunch time, which provoked her to immediately try totake her life along with her two children by jumping into a well fromwhere they were taken out. But the two children died, and she wassaved and convicted on two counts under Section 302 IPC as alsounder Section 309 IPC by the trial court. It is noteworthy that even theEchildren were abused by their father as during the postmortem of thetwo children, several abrasions were found on their dead bodies andthe medical examination of the accused revealed injuries on her bodyand the stand taken on her behalf was that as a mother she wanted tocommit suicide and thought it her duty not to abandon her progeny asshe could not reconcile herself with the idea of dying alone, leavingFher children behind.

14. As such, both cases pressed into service by the Appellantturned on their own facts. Indeed, they were also noted by the HighCourt. They need not detain us further. Even on the anvil of State ofAndhra Pradesh v Rayavarapu Punnayya, (1976) 4 SCC 382, theGAppellant is not benefitted. We have also factored in State ofUttarakhand v Sachendra Singh Rawat, (2022) 4 SCC 227.

15. Be that as it may, the Court is not pursuaded to convert theconviction from Section 302, IPC to one under Section 304 Part I,IPC.H

16. However, on the issue of premature release, it is not in disputethat the benefit of premature release to prisoners in case of life convictsis minimum 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 aState Level Committee empowered to make such recommendations. Inthe present case, the positive recommendation of the State LevelCommittee for premature release of the Appellant, has been rejected bythe State on the ground that the Appellant had administered poison tomurder her two sons to continue her illicit relationship without anyhinderance, which act was cruel and brutal in nature.

17. Pausing here, the Court would note that the Appellant nevertried to murder her sons with a view to continue her illicit relationship.On the contrary, she had tried to commit suicide herself along with herchildren not with a view to continue her illicit relationship with herparamour but rather, in disappointment and frustration over the quarrelpicked up by her paramour. This Court is not an institution to sermonisesociety on morality and ethics and we say no further on this score, boundas 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 wasprevented by her niece in the nick of time. Moreover, the recommendationof the State Level Committee conveyed by the Additional DirectorGeneral of Police/Inspector General of Prisons by way of Letter No.4369/PS1/2018 dated 16.02.2018 also notes her undisputed reflective conductas also the long period of incarceration already undergone.

19. Thus, this Court feels that there is no valid reason/justifiableground for the State not accepting the recommendation of the StateLevel Committee for premature release of the Appellant. We are notoblivious to the crime but we are equally not oblivious to the fact that theAppellant (mother) has already suffered at the cruel hands of fate. Thereason thereof is an arena this Court would avoid entering.

20. For reasons aforesaid, the order of the State of Tamil Naduas contained in G.O. (D) No. 1127 dated 24.09.2019 issued by the Home(Prison-IV) Department, under the signature of Additional Chief Secretaryto Government, rejecting the prayer for premature release of theAppellant, is set aside.

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[2023] 4 S.C.R.

A21. The Appellant is held entitled to the benefit of prematurerelease as per G.O.(Ms) No. 64 dated 01.02.2018 issued by the Home(Prison-IV) Department, under the signature of Additional Chief Secretaryto Government.

22. Accordingly, the Appellant is directed to be released forthwith,Bif not required in any other case.

23. The Appeal stands disposed of in the aforementioned terms.

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Ankit Gyan

Appeal disposed of.

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