Packiam vs State

Janarthanam, J.—The appellant was the accused in S.C.No.91 of 1986 on the file of the I Additional Sessions Court, Madurai She was

found guilty of the offence u/s 302 of the Indian Penal Code, 1860 (Act No.XLV of 1860 - for short ''IPC''), convicted thereunder and sentenced

to imprisonment for life. The present action is against the said conviction and sentence.

Brief facts are:

(a) One Mariappan alias Joker (since deceased) was a resident of Nanmaitharuvar Koil Street, Madurai. He was then aged 30 years. The

accused, aged 19 years, is none-else then his sister. Both of them were unmarried. P.W.6 is their brother. The deceased, accused, P.W.6 and

their parents lived in one and the same house. Opposite to their house is the house of P.W.5. The deceased was a rickshaw puller by profession.

He appeared to be a spend-thrift and fell to evil ways of life. He never spared any money to his family members and be of any help to them. But,

he always proved to be a source of trouble to the other members, in the sense of himself making demands from the other family members for the

money to be paid by them for his nefarious activities. On account of the same, want of cordial atmosphere came to prevail between him and other

members of his family, on occasions more than one, prior to the occurrence, which event happened on the 4th September, 1985. Such want of

cordial atmosphere came to be known to outsiders, as a result of perennial wordy altercation between them. P.W.5, opposite house owner had

the occasion to witness such skirmishes happening very often between the family members.

(b) There is a lodge going by the name ''Burubha Lodge'' located in the same street, in which the accused and the deceased were living. P.Ws 1

and 2 were the managers of the said lodge. The deceased appeared to have so much of acquaintance with the said lodge, by procuring customers

and also earning commissions therefore.

(c) In close quarters to the said lodge, there is a Noon Meal Centre on the east, in which, it appears, the accused, along with her sister, by name

Mallika, used to take bed, during night hours, on certain occasions, obviously, as a result of scarcity of space in the family house.

(d) On the day of the occurrence, the accused along with her sister Mallika came to the said Noon Meal Centre for taking bed during night hours.

A few minutes prior to the occurrence, which happened at 8.30 p.m., the deceased came there then and persisted in the accused going along with

him to Madras, to which course, accused flatly refused. The deceased got enraged on such an attitude and he, in fact, hurled a stone towards her.

She, in turn felt annoyed, and picked the stone so hurled, chased him and in the process of such chasing, she hurled the stone aiming at the

deceased and the deceased fell down in front of the said lodge, as a consequence of receipt of a hit by the stone on his head. The accused also

reached there and the deceased, who fell on the ground, resumed his position and again persisted in his demand, in the sense of mandating the

accused to accompany him to Madras. Stout resistance came forth from the accused. The deceased, however, caught hold of the hands of the

accused and attempted to drag her to the railway station, so as to make the contemplated trip to Madras. In such process, a scuffle ensued and in

the process of such a souffle, a knife (MO.1) kept hidden in the waist of the deceased, accidentally fell down. The accused, somehow or other

wriggled out of the clutches of the deceased, and in such process, the bangles she wore on her hands, got crushed to pieces. After wriggling out

from the hold of the deceased, she took up the knife and resorted to inflict a stab on his right flank, making him fall on the ground and thereafter,

she inflicted stabs indiscriminately on various portions of the body of the deceased. She than ran away towards east, along with M.O.I knife.

(e) Such an occurrences had been witnessed by P.Ws. 1 and 2, Managers of the said lodge, who, happened to sit and converse with each other in

front of the lodge. Besides them, P.W.3, a resident of the street, pursuing the avocation of fruit vending, happened to see the occurrence, when he

was available in his house after taking the night supper and also waiting for the arrival of his friend, P. W.4, who promised to meet him then.

P.W.4, likewise, had the fortuitous opportunity of witnessing a portion of the occurrence that had happened, prior to the actual stabbing.

(f) P.W.I, without any loss of time, contacted BIO Police Station, Madurai, over phone and informed about the dastardly occurrence. P.W.16, the

then Sub-Inspector of Police, was in charge of the police station and he attended the phone call. The phone message he had received, had been

entered in the general diary. Exhibit P17 is the entry so made in the general diary. He then, along with P.W.15 Grade II Constable, rushed and

reached the place of occurrence at about 9.15 p.m.

(g) On reaching the scene, he procured the service of an auto, bearing registration number MDB 5409 driven by P. W.8 for taking the victim -

deceased from the scene to the hospital. Before the victim-deceased was taken in the auto rickshaw, he recorded a statement from P.W.I, as

narrated by him. Exhibit PI is the statement. He, along with P.W.15 and the victim - deceased reached the police station at 9.30 p.m. and from

there the victim - deceased was transported to the hospital, with a medical memo Exhibit P4, along with P.W.15. He then registered the case in

Crime No.1661/85 u/s 307 IPC. Exhibit P16 is the printed FIR. He despatched copies of the said FIR to the concerned officials.

(h) P.W.9 was the Civil Assistant Surgeon, Government Rajaji Hospital, Madurai. At about 9.45 p.m., the victim-deceased had been produced

before P.W.9 by P.W.15, along with medical memo, Exhibit P4. The victim - deceased was then unconscious. His condition was also critical.

P.W.9 gave him treatment. P.W.15 seized from the victim-deceased, his bloodstained dhoti, (MO.6). P.W.9 admitted the victim-deceased and

transferred him to the Emergency Ward. Exhibit P5 is the copy of the accident register, relatable to the injuries he found on the person of the

victim-deceased. At 10.10 p.m., the victim-deceased died in the hospital. Exhibit P6 is the death intimation issued by the doctor, P.W.10.

(i) On receiving Exhibit P6 death intimation, P.W.15, along with M.O.6, went to the scene of occurrence. In the meantime, P.W.17, the Inspector

of Police (Law & Order), B 10 Police Station, Madurai, reached the scene at 10.30 p.m., after receipt of the copy of the FIR at 10.20 p.m. After

inspecting the scene, he prepared a rough sketch, Exhibit P18. At 11.30 p.m., P.W.15 informed P.W.17 as to the death of the victim-deceased in

the hospital, by production of Exhibit P6, death intimation. He also produced the dhoti, M.O.6 which was not seized then, but directed to be

produced later at the police station. He then immediately altered the case into one u/s 302 IPC, prepared express reports and sent the same to the

concerned officials. Exhibit P19 is the express FIR Sent to Court. He then prepared observation mahazar Exhibit P2. At 00-15 a.m. (on

5.9.1985), he seized from the scene bloodstained earth (MO.2); sample earth (MO.3), broken pieces of bangles (MO.4 series) and a bunch of

flowers (pitchippoo - MO.5) under Exhibit P3 Mahazar. Exhibits P2 and P3 were attested by P.W.7. He left the scene at 00.40 a.m. and reached

the Government Rajaji Hospital at 1 a.m. He then held inquest over the body of the deceased. During inquest, he examined P.Ws.1, 2 and

another. Exhibit P20 is the inquest report. He then despatched the dead body through the constable, P.W.13, along with Exhibit P9 requisition for

the purpose of autopsy.

(j) P.W.12 was the Assistant Professor of Forensic Science Medicine, Medical College, Madurai. On receipt of Exhibit P9 requisition, he

commenced autopsy over the body of the deceased at 9.45a.m. Exhibit P10 is the postmortem certificate, he issued. He opined that the deceased

would appear to have died of shock and hemorrhage, and all the injuries he found described in Exhibit P10 could have been caused by weapon

like M.O.I.

(k) On the same day, P.W.17 examined P.Ws.3, 7 and 12. He also seized M.O.6 dhoti under Form No.95 from P.W.15 at the police station. At

11 a.m., the accused appeared before the police station with M.O.I knife. Her clothes were then found stained with blood. She was also having

some injury on her person. He seized from her the bloodstained skirt (M.O.7) and knife (MO.1) under Form No.95. He despatched the accused

to the hospital, along with medical memo, Exhibit P.7 for purpose of treatment.

(l) She had been then examined by the doctor, P.W.11 at 1.50 p.m. She was also treated for her injury. Exhibit P8 is the copy of the accident

register for the injury he found on her person.

(m) On 7.9.1985, P.W.17 examined P.Ws.9 and 10 and others. On 8.9.1985, he examined P.W.6. On 9.9.1985, he examined P.W.16. On

10.9.1985, he examined P.W.5. On 12.9.1985, he examined P.W.8. On 18.9.1985, he sent Exhibit P11 requisition to the Judicial Second Class

Magistrate No.I, Madurai for forwarding the incriminating seized material objects to the Chemical Examiner for the purpose of examination.

(n) P.W.14, the then Head clerk, Judicial Second Class Magistrate No.I''s Court, Madurai, as per the directions of the Magistrate, separately

packed and despatched the incriminating material objects, under the original of Exhibit P12, office copy of letter to the chemical Examiner for the

purpose of examination. Exhibits P13 and P15 are the reports of the Chemical Examiner while Exhibit P14 is the report of the Serologist.

(o) On 12.11.1985, P.W.17 examined P.W.11: On completion of investigation, P.W.17 laid the final report u/s 173(2) of the Code of Criminal

Procedure, 1973 (Act No.2 of 1974 - for short ''Crl.P.C.'') before-the Judicial Second Class Magistrate No. I, Madurai on 12.12.1985 for the

alleged offence u/s 302 IPC.

On committal, learned Sessions Judge framed a charge u/s 302 IPC. against the accused. The accused, when questioned, as respects the

charge so framed, denied the same and claimed to be tried.

In proof of the said charge, the prosecution examined P.Ws. 1 to 17, filed Exhibits PI to P20 and marked M.Os. 1 to 7.

The accused, when questioned u/s 313 Crl.P.C. as respects the incriminating evidence and circumstance appearing against her, denied her

complicity in the crime. She, however, chose to examine the Head clerk of the Judicial Second Class Magistrate No.I''s Court, Madurai, as D.W.I

and marked through him Exhibit Dl, remand report relatable to P.W.3 in a Prohibition case.

Learned Additional Sessions Judge, Madurai before whom the trial took place, rendered the verdict, as stated above.

Mrs.Vijayakumari Natarajan, learned Counsel appearing for the appellant - accused would, with all vehemence and forced submit that in the

administration of criminal justice system that we have, based on Anglo Saxon model, it was also incumbent upon the prosecution, irrespective of

the defence taken, to prove its case beyond any shadow of doubt and if the facts and circumstances of the instant case were sifted and scanned in

a broad spectrum analysis in the touch-stone of such a proposition, it could not at all be stated that the prosecution, in such a venture, had not

faced dismal failure. She would alternatively submit that even conceding it was not to be so, in the sense that the injuries found on the person of the

deceased were traceable to the Actus Reus of the accused at or about the time of the occurrence, as projected by the prosecution, it would not at

all be stated that such an act of hers, would fall under anyone of the four clauses of Section 300 IPC, making her liable for the offence of murder,

punishable u/s 302 IPC and if at all, in the facts and circumstances of the case, she might perhaps be liable for the offence of culpable homicide not

amounting to murder, punishable u/s 304 part I IPC.

Mr.B.Sriramulu, learned Public Prosecutor representing the prosecution, in all fairness, would submit that though the proved facts and

circumstances of the case on hand would unerringly point out that the hand that was responsible for causing the injuries on the person of the

deceased, leading to his death, could not be anything other than the one of the accused, yet, there are plethora of circumstances, probabilising the

alternative facet of the submission of learned counsel for the appellant-accused and such being the position, it is but fit and proper for the Court to

invoke the wrath of penal consequences to flow for such offence, by extending its hands of clemency, taking into account the nuances of the life-

situation, in which the accused had been placed, prior to or at or about the time of the occurrence.

We may now proceed to enter in to the arena of discussion, in the light of the evidence available on record. The alternative submission made by

learned Counsel for the appellant-accused is not without any significance, in the facts and circumstances of the case. Perhaps learned Counsel, we

fell, was shrewd enough to resort to make such a submission, feeling that her main submission, if projected to its ultimate end, is not likely to fetch

any dividend, in the sense of yielding the expected favorable result for the accused. We also feel that there is abundance of evidence, as rightly

pointed out by learned Public Prosecutor, that the hand that was responsible for causing the injuries on the person of the deceased, was none else

than that of the accused.

Of course, the occurrence had happened during night hours, in front of Buruha Lodge. P.Ws.1 and 2, being the Manager of the said lodge,

were stated to have been seated in front of the lodge, at or about the time of the occurrence and had the opportunity of witnessing the occurrence,

which had happened in the front portion of the lodge. They are the natural witnesses. A visible factor for them to have the glimpse of the

occurrence had been provided by the emission of flood of lights from the lamp post situate in front of the lodge, in close quarters.

Apart from their evidence, there is also the evidence of P.W.3, a resident of the locality a fruit vendor. His evidence would disclose that he had

come to his house for the purpose of taking night supper and while he was waiting outside his house expecting the arrival of his friend P.W.4, the

occurrence had happened and consequently he had the adequacy of opportunity to have a glimpse of the occurrence.

Likewise, P.W.4, a cycle shop owner, who was making an onward march towards the house of his friend, P.W.3, had the occasion to witness

some portion of the occurrence, which had happened between the accused and the deceased in front of the Noon Meal Centre.

None of these witnesses, namely P.Ws. 1 to 4 had anything to choose and prefer between the deceased and the accused, who are related as

brother and sister. Above all, no infirmity of a serious nature emerges from their evidence as to doubt their version, as respects the manner of the

occurrence.

Further, there is the incriminating circumstance of the appellant-accused appearing before P.W.17 at the police station with bloodstained

clothes, along with blood-stained knife, M.O.I. Her bloodstained skirt (MO.7) seized and sent for the purpose of examination to the Chemical

Examiner and the Sefologist was found to be stained with human blood. But, somehow or other the group was unable to be detected by the

Serologist. But, so far as the bloodstained M.O.I knife is concerned, it was found to contain AB blood group, which was that of the deceased.

M.O.I was the knife said to have been utilised by the accused, as vividly spoken to by the direct eye witnesses, P.Ws.1 to 3. In such

circumstances, the knife, as produced by the accused herself having been stained with blood group as that of the deceased is an incrementing

circumstance pointing out the presence and participation of the accused in the occurrence, thereby serving as a lending assurance factor to the

version, as projected by the eye witnesses, P.Ws. 1 to 3.

Above all, there is the medical testimony, in the shape of the doctor, P.W.12, who conducted autopsy over the body of the deceased, coupled

with Exhibit P10 postmortem certificate he issued, serving as a corroborative support to the version, as projected by the eye witnesses, P.Ws. 1 to

3,in the sense of pointing out that the injuries he found on the person of the deceased could have been caused by the weapon of offence, like

M.O.I. In view of the clinching evidence, as above, we are of the opinion that it is the hand of the accused, that was responsible for inflicting the

injuries on the person of the deceased, leading to his death subsequently at the hospital.

The next question that now arises for consideration is as to what is the offence that had been committed by the accused.

It is here, we have to consider, with so much of concern, the alternative submission of learned Counsel for the appellant-accused and the

concession to such a submission, extended by learned Public Prosecutor. The cumulative effect of the evidence relatable to the occurrence, as

projected by P.Ws. 1 to 4, if sifted with a clairvoy and mental eye and judicial gaze would point out that the deceased was more of less busybody

with propensity to crime and leading a vagabond life by trafficking in women. An onslaught of attack had been made right from the beginning by the

defence by way of hurling questions in cross-examination to those witnesses that he was more or less serving as a pimp in supplying women to

Buruha Lodge and the lodge, in fact, had been raided on many an occasion. No doubt true it is that the managers of the lodge, P.Ws. 1 and 2

categorically denied as to the deceased being a person involved in trafficking in women and serving as a pimp. But nonetheless, they had no

courage to stoutly deny as to their lodge being raided by the police. What they would say is that their lodge had been raided on few occasions,

though not frequently. They would also state that they had so much of acquaintance with the deceased, as he had been procuring customers to the

lodge and he had also been in the habit of receiving commissions for procurement of such customers. Suggestions had also been put to P.W.I as to

the deceased raveling in procuring girls and selling them elsewhere, after sometime. Of course, such suggestions remained, as a shot in the

darkness, in the sense of being stoutly denied by him.

At this juncture, it is of some importance to note that P.W.5, a lady admittedly residing opposite to the house of the accused and the deceased,

would state, even in chief-examination, that the deceased, had been in the habit of very often demanding money, not only from his parents; but also

from his sister-accused and that apart, he was very often persisting in making a demand to her to accompany him to Madras, without making it

known the purpose for which she was required to accompany him to Madras. Here, we have to recapitulate that the accused was then a young

lady, aged between 18 and 19 years, not having been married dreaming a rosy future of married life for herself. It is also elicited in cross-

examination of P.W.6, the brother of the accused and the deceased, that she had been all along seeking out her livelihood by doing some sort of a

work in a Card Board Manufacturing company. Though suggestions, had been hurled revealing the theory of defence as to the deceased being a

busybody trafficking in women, had been denied, as already stated, yet there are plethora of circumstances in the records, as produced by the

prosecution itself pointing out that the deceased had been indulging in trafficking in women. Though the circumstances available in the prosecution

records cannot at all be taken into consideration for the purpose of strengthening the case of the prosecution to any further, yet such circumstances

if favourable in advancing the defence theory, could very well be taken into consideration and such circumstances are available in abundance in

Exhibit P.9 requisition sent by P.W.17, Inspector of Police, to the doctor, P.W.12, requiring him to conduct autopsy over the body of the

deceased. A fund of material emerges from such a document.

It appears that a week prior to the occurrence, the deceased requested the accused to accompany him to Madras to live in the gay company

of his friends, with all attendant comforts of life, to which course, she was not amenable, and struck a discordant note in rather a polite way. The

deceased, despite such refusal by her to succumb to his luscious wishes, again persisted in making such an attempt some two days prior to the

occurrence in mandating her to accompany him to Madras, to which, she expressed strong resentment and disapproval, leading to a calamitous

situation, in the sense of the deceased, all of a sudden and quite unexpectedly issuing imminent threat to her life, by actually breaking a glass bottle

and making a farce of an attempt to cause injuries to her, with the lid of such broken bottle, so as to create a lingering fear psychosis and

consternation pervading in her mind, so as to make her to accede to his request at a later point of time at least and the opportune time, perhaps the

deceased thought, had come a few minutes prior to the occurrence to renew his pious wish and request to the accused and consequently he did so,

while she was about to take her bed in the Noon Meal Centre situate in the vicinity of Buruha Lodge on the east and the deceased unable to digest

the emergence of a flat refusal from her, picked up a stone and hurled it on her and the accused, got enraged, picked up the stone so hurled at her,

chased the deceased and threw the stone aimed at him, in the process of chasing. The deceased fell down more or less in front of the said lodge.

Accused reached there. The deceased resumed his position, caught hold of the hands of the accused, made an attempt to drag her to the railway

station to go to Madras. The deceased wriggled out of his clutches and a scuffle resulted in such process. During the course of such a struggle, the

knife (MO.1) hidden in the waist of the deceased fell down. The accused took the same, stabbed the deceased on his right flank and other parts of

his body indiscriminately, by proclaiming, Tantalising, and tormenting situation she Halloween placed all along had to be terminated by his death.

Such an act of the accused, in such a situation, was the last on which acted as the last straw breaking the camel''s back, though construed as an act

by itself, not grave and sudden enough to make her lose her balance of mind and rise in revolt against the deceased, yet such an act of hers would

certainly fall within ''sustained provocation'', undoubtedly, an addition by Courts, as anticipated by the architects of the Indian Penal Code.

We may, at this juncture, point out that ''sustained provocation'' is the resultant product of judicial innovation by superior Courts of this country

and the development of law on this aspect had been brought about, in scintillating fashion, by David Annoussamy, J., (as he then was) a learned

Judge of this Court (in a Division Bench, to which one of us was a party), in the case of Suy-ambukkani v. State of Tamil Nadu ( 1989 L.W.(Crl.)

86) thus:

It is clear from the opinion of the important architects of the Indian codification that Anglo-Indian Codes, which were the first experiments in

English language in the art of codification, in spite of their immense value, are far from being perfect and were intended to be overhauled from time

to time. Therefore, though technically the exceptions to S.300, IPC appear to be limitative they can no longer be considered so, after the efflux of

time. In fact, Courts have added one more exception known as ''sustained provocation.

The leading decision in that first one to take into consideration the situation of sustained provocation. There are ""Previous decisions, which are

reviewed in that case are: The Empress v. Khagayi 2.( ILR 2 Mad.122 ) Boya Munigadu v. The Queen 3. ( ILR 3 Mad.33) Murugien, In Re 4.

(AIR 19S7 Mad.541) Chervirala Narayan, In Re 5. (AIR 1958 And P 235 : 1958 1 AWR 149) Balku v. Emperor 6.(AIR 1938 AP 532 ) and

Babu Lal Vs. State, . Thereafter, several decisions have been pronounced and recently this Court dealt with the same subject in the following

unreported cases: C.A.No.70 of 1981 dated 15th December 1982, C.ANo.417 of 1983 dated 10th February, 1986, C.ANo.184 of 1983 dated

6th February, 1983 and C.ANo.301 of 1984 dated 4th August, 1988. Though there has been here and there attempts in those decisions to bring

the sustained provocation under Exception I to S.300IPC, there is a cardinal difference between provocation. The only word which is common is

''provocation''. What Exception I contemplates is a grave and sudden provocation whereas the ingredient of sustained provocation is a series of

acts more or less grave spread over a certain period of time, the last of which acting as the last straw breaking the camel''s back may even be a

very trifling one. We are therefore far from grave and sudden provocation contemplated under Exemption I to S.300, IPC. Sustained provocation

is undoubtedly an addition by Courts, as anticipated by the architects of the Indian Penal Code.

it is clear that the exceptions under S.300 IPC are not limitative. Since the the Code in its structure makes the Exceptions limitative, Courts

have to show restraint on circumspection in adding Exceptions and such additions should be ejusdem generis. In this connection, it is necessary to

examine what is the true nature of the Exceptions. The Exceptions are in the nature of important excusing circumstances and they have the

following characteristics:

Nature of the Premeditation Excusing circumstance III-will towards the victim

EXCEPTION. 1

Sudden provocation No Yes

EXCEPTIONS

Private defence No Yes

EXCEPTIONS

Discharge of Public duty Yes No

EXCEPTIONS

Sudden fight No Yes

EXCEPTIONS

Consent of the victim Yes No.

One thing is clear from the above analysis, viz., in all the Exceptions either premeditation or ill-will is absent. Therefore, when both are present, it

will be impossible to counter the matter as an exception.

The facts of the instant case, as we have highlighted, as above, would squarely fall within the framework of ''sustained provocation'', as had

been enunciated and propounded by the Division Bench of this Court, as referred to above. This can be elucidated a little bit further. For the sake

of emphasis, we may point out that the accused was a young lady of 18 to 19 years of age, at the time of occurrence, with blossoming young

dreaming rosy future of a married life. She had been eking out her livelihood by doing some work in a Cardboard manufacturing Factory. Despite

indigent circumstances, she had been placed, she had not resorted to earn money, in any infamous way. Her brother, the deceased, as already

pointed out, had been inducing her for sometime prior to the occurrence, to resort to infamous way of life, in the sense of insisting her to take

shelter in the gay company of his friends at Madras. Such modes of the deceased had been thwarted by the accused on occasions more than one

politely. Her pent up emotions and feelings had not at all been revealed to the outside world, all along till upto the time of occurrence. Such

pervading and never fading pent up feelings, revolving in her mind, got erupted like a volcano, when the deceased again persisted in making such a

demand to her and followed it by force of her being taken away to Madras, which act, on the part of the deceased, served as an igniting cause for

her, to rise in revolt and in fact, resorted to inflicting as many stabs as possible on the person of the deceased and while doing so, she had also

expressed her pent up feelings in getting rid off her brother, the deceased, as already stated. It cannot be stated that she was having any sort of ill-

will towards her brother, the deceased. But, at the same time, it can very well be stated that she had been premeditating and pondering over for

sometime as to in what way, the deceased had to be dealt with for his act of inducing her to live in an infamous way. Thus, there is absence of ill-

will; but the presence of pre-meditation, coupled with important excusing circumstances, as pointed out above, to transform the offence into one of

culpable homicide not amounting to murder, punishable u/s 304 Part I IPC. Accordingly, we set aside her conviction and sentence of life

imprisonment u/s 302 IPC, as had been imposed by the Court below and instead, we find her guilty u/s 304 Part I IPC, convict her thereunder and

sentence her to rigorous imprisonment for five years.

Ever since the judgment of the Court below dated 18th November, 1986, she was serving sentence of life imprisonment in jail till upto

5.3.1987, the date on which she had been directed, to be enlarged on bail on her executing a bond for Rs.2,000/- with two sureties each for a like

sum to the satisfaction of the Judicial Second Class Magistrate No. I, Madurai, by an order of this Court in Crl.MP.No.12918 of 1986. It is also

represented that subsequent to the order, she had come out of prison, in compliance with the order of this Court. But, it is not known as to on

which date she came out of prison. But one thing is certain that she is now on bail.

Learned Public Prosecutor at this juncture had drawn our attention to G.O.Ms.No.205, Home (Prisons-IV) Department/dated 23.2.1994

granting special remission on the occasion of the Birth day of the Honorable Chief Minister of Tamil Nadu. The preamble portion of the GO is

couched in the following terms:

As a gesture of goodwill and on humanitarian grounds, on the occasion of the Birth day of the Honourable Chief Minister of Tamil Nadu the

Government have decided to grant remission to certain classes of prisoners who have been convicted for various offences by the Courts in this

State and sentenced to various terms of imprisonment other than life imprisonment.

The operative portion of the GO, as is relevant for our present purpose is couched in Sub-paragraph (a) of Paragraph 2, in the following

terms:-

In exercise of the powers conferred by Article 161 of the Constitution of India, the Governor of Tamil Nadu hereby remits: -

(a) in the case of women who have been sentenced to punishment for offences, other than those relating to murder, robbery and smuggling

activities, the whole of the unexpired portion of the punishment, to which they have been sentenced.

The significance of this GO can very well be under stood by the following phraseology, adumbrated in the preamble portion, namely,

...to grant remission to certain classes of prisoners who have been convicted for various offences by the courts in this state and sentenced to

various terms of imprisonment other than life imprisonment.

The phraseology, as stated above, points out, in a clinching fashion the applicability of remission, to certain classes of prisoners convicted and

sentenced, in this State and the GO does not at all require such remission to be made applicable only to prisoners, who are not only convicted and

sentenced, but, also undergoing sentence of imprisonment in jail. Further, Sub-paragraph (a) of Paragraph 2 of the operative portion of the GO

makes it fluidly crystal clear that in the case of women, who have been sentenced to punishment for offences, other than those relating to murder,

robbery and smuggling activities, the whole of the unexpired portion of the punishment, to which, they have been sentenced, had been remitted.

In the case on hand, the accused is admittedly a women prisoner and she has now been sentenced to rigorous imprisonment for five years for

an offence of culpable, not amounting to murder, punishable u/s 304 Part I IPC, only. In such state of affairs, it goes without saying that the

aforesaid GO is clearly applicable to her. granting special remission on the occasion of the Birth day of the Honorable Chief Minister of Tamil

Nadu. We also feel that there is no need to resort to the ritualistic exercise of her being taken into custody by the issuance of a warrant by Court

and then imprisoning her in the jail, so as to enable her to avail the benevolence of the GO, in the sense of praying for remission of the unexpired

portion of the sentence and in that view of the matters, we ourselves remit the unexpired portion of the sentence of rigorous imprisonment for five

years, as now imposed on her by us pursuant to the salient provisions, adumbrated in the aforesaid GO.

In fine, the appeal is allowed in part; the conviction and sentence u/s 302 IPC, as had been imposed upon her by the Court below, are set

aside and instead, she is convicted u/s 304 Part I IPC, and sentenced to rigorous imprisonment for five years. However, the unexpired portion of

the sentence so imposed, after granting remissions available to her detention relatable to pre-trial and subsequent to conviction imposed by the

Court below, according to the provisions adumbrated u/s 428 Crl.P.C, shall stand remitted, pursuant to the benevolent provisions of

GO.Ms.No.205, Home (Prisons-IV) Department, dated 23.2.1994. The appeal shall stand dismissed, in other respects.