Bombay High Court
Nirmalabai Namdeo Kotjaware (In Jail) vs State Of Maharashtra Thr. Secretary ... on 26 September, 2017
Author: Vasanti A Naik
Bench: Vasanti A Naik, M.G. Giratkar
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. ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:40:11 :::
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.
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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 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:40:11 ::: 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 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:40:11 ::: 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
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