JUDGMENT :

(Ahsanuddin Amanullah, J.)

Leave granted.

2. The present Appeal is directed against the Final Judgment and Order dated 05.08.2019 (hereinafter referred to as the “Impugned Judgment”) passed by the Madurai Bench of the Madras High Court partly allowing Criminal Appeal (MD) No. 186 of 2019 (hereinafter referred 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 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 children, twins named Ramar and Laxmanan. Thereafter, when the appellant poured the pesticide in a tumbler to consume it herself, her niece pushed it down. However, unfortunately, the two children were declared dead on arrival in the hospital leading to the institution of FIR No.115 of 2003 dated 28.03.2003 at Sempatty 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 Case No. 92 of 2004 dated 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 Appellant’s plea by acquitting the Appellant under Section 309, IPC while upholding the conviction under Section 302, IPC.

6. The Appellant having suffered imprisonment for almost 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 brutal nature of the offence(s) committed by her.

SUBMISSIONS BY THE APPELLANT:

7. Learned senior counsel for the Appellant submitted that even if it is assumed that she had tried to commit suicide along with her children by consuming poison, the same was due to sudden 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 vehemently 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 the State Level Committee comprising the District Authorities and Prison Department on 16.02.2018 [reference seems to be to the Additional Director General of Police/Inspector General of Prisons Letter No.4369/PS1/2018] had recommended release of the appellant on account of her undisputed affirmative conduct 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