Nirmalabai Namdeo Kotjaware (In ... vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 7550 Bom

WP  323/17                                                  1                          Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                  CRIMINAL WRIT PETITION No. 323/2017
Nirmalabai Namdeo Kotjaware (In Jail),
Aged about 46 years, Convict No.5642,
Central Prison, Nagpur, R/o Balaghat
(Madhya Pradesh).                                                                  PETITIONER

                                         .....VERSUS.....

1.    State of Maharashtra,
      through its Secretary,
      Home Department, Mantralaya,
      Mumbai-32.

2.    Inspector General (Prisons),
      Pune (Maharashtra).

3.    The Superintendent of Prison,
      Central Prison, Nagpur.                                                       RESPONDE
                                                                                             NTS

                     Ms S.B. Khobragade, counsel for the petitioner.
             Mrs. N.R. Tripahi, Additional Public Prosecutor for respondents.


                                           CORAM :SMT.VASANTI  A  NAIK AND
                                                         M.G. GIRATKAR, JJ.                

                                            DATE        :             26  TH  SEPTEMBER, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI  A  NAIK, J.)

               RULE.   Rule   made   returnable   forthwith.     The   criminal   writ

petition is heard finally at the stage of admission with the consent of the

learned counsel for the parties.

2. By this criminal writ petition, the petitioner seeks the benefit

of the Government Resolution, dated 15.03.2010 that lays down the

guidelines for the premature release of the prisoners.

WP 323/17 2 Judgment

3. The petitioner is a woman and she was convicted for the

offence punishable under Section 302 read with Section 201 of the

Penal Code by the judgment dated 15.12.2001. According to the

petitioner, she has not availed furlough or parole leave from the

date of the judgment by which she was convicted. The petitioner

had two children, a girl named Nanda and a boy named Maruti. Both

the children, viz. Nanda and Maruti, were suffering from polio and

were not in a position to discharge their regular functions in a normal

way. Nanda and Maruti were unable to walk. Nanda also had

crossed eyes. In the aforesaid set of facts, it appears that the

petitioner had committed the murder of Nanda and Maruti. Since the

petitioner has already undergone seventeen years of sentence of

imprisonment, the petitioner has sought for her premature release

as per the guidelines laid down in the Government Resolution

dated 15.03.2010. According to the State Government, the benefit

of the guidelines could have been extended to the petitioner and

the petitioner was placed in the category of prisoners in Item 2(c)

and the premature release of the petitioner was directed after serving

actual imprisonment of twenty six years, including the set-off period.

Being aggrieved by the decision of the respondents, the petitioner has

filed the instant petition.

WP 323/17 3 Judgment

4. Ms Khobragade, the learned counsel for the petitioner,

submitted that the respondents were not justified in placing the petitioner

in Category 2(c) of the Government Resolution, dated 15.03.2010. It is

submitted that the petitioner could have been placed in Category 2(b)

where a convict commits the murder with premeditation. It is stated that

the petitioner is entitled to be released after undergoing the sentence of

imprisonment for twenty two years, in stead of twenty six years, as held

by the respondents. It is stated that both the children of the petitioner,

viz. Nanda and Maruti were suffering from polio and they were not able

to walk and perform their daily chores. It is submitted that in the

circumstances of the case, it cannot be said that the petitioner has

committed the crime with exceptional violence or brutality. It is

submitted that the petitioner could be categorized in Category 2(b) and

not 2(c), as the crime committed by the petitioner could be said to have

been committed with premeditation but cannot be said to have been

committed with exceptional violence or brutality. It is submitted that in

the circumstances of the case, the premature release of the petitioner

should be directed after the petitioner undergoes actual imprisonment of

twenty two years.

5. Mrs.Tripathi, the learned Additional Public Prosecutor

appearing for the respondents, has supported the impugned order. It is

WP 323/17 4 Judgment

submitted that the case of the petitioner would not fall in Category 1 but

would fall in Category 2, as the petitioner has committed an offence

against the minors. It is submitted that since the petitioner had murdered

her two minor children it could be said that the petitioner had committed

the offence with exceptional violence or brutality.

6. On hearing the learned counsel for the parties and on a

perusal of the Government Resolution dated 15.03.2010, that lays down

the guidelines for premature release of the prisoners serving life sentence,

it would be necessary to hold that the respondents could not have placed

the petitioner in Category 2(c), where the offence is committed against

minors with exceptional violence and/or brutality. The petitioner was the

mother of Nanda and Maruti. Nanda had crossed eyes and both the

children suffered from polio as a result of which, they were not able to

stand or walk. Both, Nanda and Maruti, were not able to perform their

daily chores. The petitioner was suffering extreme poverty. In the

aforesaid set of facts, if the petitioner had murdered her minor children,

at the most, it could be said that the offence was committed with

premeditation. The case of the petitioner would not fall in Category 2(c)

where the crime is committed with exceptional violence or brutality. For

committing a crime with exceptional violence or brutality, the crime

should be committed in a very cruel manner or the death of the deceased

WP 323/17 5 Judgment

should be caused in a ruthless manner. In the set of facts that we have

narrated hereinabove, it cannot be said that the petitioner had committed

the murder of her children with exceptional violence or brutality. The

crime may have been committed by the petitioner in a fit of anguish or

despair. Since the trial Court has held that the petitioner has committed

the murder of her children with premeditation the petitioner should be

placed in Category 2(b), as the petitioner has no previous criminal history

and the offence of murder is committed by her with premeditation. If the

petitioner is placed in Category 2(b), the petitioner would be liable to

suffer actual imprisonment of twenty two years including the set-off

period.

7. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside. The respondents are

directed to set the petitioner at liberty after the petitioner undergoes the

imprisonment for a period of twenty two years including the remission

and set-off period.

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                         JUDGE

APTE