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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

Madurai Bench of the Madras High Court partly allow -

ing Criminal Appeal (MD) No. 186 of 2019 (hereinafter

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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

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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.

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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 s udden 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

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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

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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:

“299. Culpable homicide- Whoever causes

death by doing an act with the intention of

causing death, or with the intention of caus -

ing such bodily injury as is likely to cause

death, or with the knowledge that he is likely

by such act to cause death, commits the of -

fence of culpable homicide.

Illustrations

(a) A lays sticks and turf over a pit, with

the intention of thereby causing death, or

with the knowledge that death is likely to be

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thereby caused. Z believing the ground to be

firm, treads on it, falls in and is killed. A

has committed the offence of 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's death induces B

to fire at the bush. B fires and kills Z. Here

B may be guilty of no offence; but A has com -

mitted the offence of 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 was there. Here,

although A was doing an unlawful act, he was

not 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 to cause death.

Explanation 1.—A person who causes bodily

injury, to another who is labouring under a

disorder, disease or bodily infirmity, and

thereby accelerates the death of that other,

shall be 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 to have caused

the death, although by resorting to proper

remedies and skilful treatment the death

might have been prevented.

Explanation 3.—The causing of the death of a

child in the mother's womb is not homicide.

But it may amount to culpable homicide to

cause the death of a living child, if any part

of that child has been brought forth, though

the child may not have breathed or been com -

pletely born.

300. Murder- Except in the cases hereinafter

excepted, culpable homicide is murder, if the

act by which the death is caused is done with

the intention of causing death, or -

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Secondly - If it is done with the intention

of causing such bodily injury as the offender

knows to be likely to cause the death of the

person to whom the harm is caused, or -

Thirdly - If it is done with the intention

of causing bodily injury to any person and the

bodily injury intended to be inflicted is suf -

ficient in the ordinary course of nature to

cause death, or -

Fourthly - If the person committing the act

knows that it is so imminently dangerous that

it must, in all probability, cause death or

such bodily injury as is likely to cause

death, and commits such act without any excuse

for incurring the risk of causing death or

such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing

him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under

such a disease that a blow is likely to cause

his death, strikes him with the intention of

causing bodily injury. Z dies in consequence

of the blow. A is guilty of murder, although

the blow might not have been sufficient in the

ordinary course of nature to cause the death

of a person in a sound state of health. But if

A, not knowing that Z is labouring under any

disease, gives him such a blow as would not in

the ordinary course of nature kill a person in

a sound state of health, here A, although he

may intend to cause bodily injury, is not

guilty of murder, if he did not intend to

cause death or such bodily injury as in the

ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or

club-wound sufficient to cause the death of a

man in the ordinary course of nature. Z dies

in consequence. Here A, is guilty of murder,

although he may not have intended to cause Z's

death.

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(d) A without any excuse fires a loaded can -

non into a crowd of persons and kills one of

them. A is guilty of murder, although he may

not have had a premeditated design to kill any

particular individual.

Exception 1.—When culpable homicide is not

murder.—Culpable homicide is not murder if the

offender, whilst deprived of the power of

self-control by grave and sudden provocation,

causes the death of the person who gave the

provocation or causes the death of any other

person by mistake or accident.

The above exception is subject to the fol -

lowing provisos:—

First.—That the provocation is not sought or

voluntarily provoked by the offender as an ex -

cuse for killing or doing harm to any person.

Secondly.—That the provocation is not given

by anything done in obedience to the law, or

by a public servant in the lawful exercise of

the powers of such public servant.

Thirdly.—That the provocation is not given

by anything done in the lawful exercise of the

right of private defence.

Explanation.—Whether the provocation was

grave and sudden enough to prevent the offence

from amounting to murder is a question of

fact.

Illustrations

(a) A, under the influence of passion ex -

cited by a provocation given by Z, intention -

ally kills Y, Z's child. This is murder, inas -

much as the provocation was not given by the

child, and the death of the child was not

caused by accident or misfortune in doing an

act caused by the provocation.

(b) Y gives grave and sudden provocation to

A. A, on this provocation, fires a pistol at

Y, neither intending nor knowing himself to

be likely to kill Z, who is near him, but out

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of sight. A kills Z. Here A has not committed

murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff.

A is excited to sudden and violent passion by

the arrest, and kills Z. This is murder,

inasmuch as the provocation was given by a

thing done by a public servant in the exer -

cise of his powers.

(d) A appears as a witness before Z, a Ma -

gistrate. Z says that he does not believe a

word of A's deposition, and that A has per -

jured himself. A is moved to sudden passion

by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the

exercise of the right of private defence,

lays hold of A to prevent him from doing so.

A is moved to sudden and violent passion in

consequence, and kills Z. This is murder,

inasmuch as the provocation was given by a

thing done in the exercise of the right of

private defence.

(f) Z strikes B. B is by this provocation

excited to violent rage. A, a bystander, in -

tending to take advantage of B's rage, and to

cause him to kill Z, puts a knife into B's

hand for that purpose. B kills Z with the

knife. Here B may have committed only culp -

able homicide, but A is guilty of murder.

Exception 2 .—Culpable homicide is not

murder if the offender, in the exercise in

good faith of the right of private defence of

person or property, exceeds the power given

to him by law and causes the death of the

person against whom he is exercising such

right of defence without premeditation, and

without any intention of doing more harm than

is necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a

manner as to cause grievous hurt to A. A

draws out a pistol. Z persists in the as -

sault. A believing in good faith that he can

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by no other means prevent himself from being

horsewhipped, shoots Z dead. A has not com -

mitted murder, but only culpable homicide.

Exception 3 .—Culpable homicide is not

murder if the offender, being a public ser -

vant or aiding a public servant acting for

the advancement of public justice, exceeds

the powers given to him by law, and causes

death by doing an act which he, in good

faith, believes to be lawful and necessary

for the due discharge of his duty as such

public servant and without ill-will towards

the person whose death is caused.

Exception 4 .—Culpable homicide is not

murder if it is committed without premedita -

tion in a sudden fight in the heat of passion

upon a sudden quarrel and without the of -

fender having taken undue advantage or acted

in a cruel or unusual manner.

Explanation.—It is immaterial in such cases

which party offers the provocation or commits

the first assault.

Exception 5 .—Culpable homicide is not

murder when the person whose death is caused,

being above the age of eighteen years, suf -

fers death or takes the risk of death with

his own consent.

Illustration

A, by instigation, voluntarily causes Z, a

person under eighteen years of age to commit

suicide. Here, on account of Z'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 com-

mits murder shall be punished with death or

imprisonment for life and shall also be li -

able to fine.

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304. Punishment for culpable homicide not

amounting to murder- Whoever commits culpable

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homicide not amounting to murder shall be

punished with (imprisonment for life), or im -

prisonment of either description for a term

which may extend to ten years, and shall also

be liable to fine, if the act by which the

death is caused is done with the intention of

causing death, or of causing such bodily in -

jury as is likely to cause death,

Or with imprisonment of either description

for a term which may extend to ten years, or

with fine, or with both, if the act is done

with the knowledge that it is likely to cause

death, but without any intention to cause

death, or to cause such bodily injury as is

likely to cause death. ”

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

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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

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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

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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 -

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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

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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

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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.

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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)