Convict No.C-10544 vs Through Home Secretary
2012 Latest Caselaw 89 Bom

S

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION




                                                                               
              CRIMINAL WRIT PETITION NO.2976 OF 2011

     Laxman Ramchandra Kamble




                                                      
     Convict No.C-10544,
     Yeravada Central Prison,
     Pune-6, Maharashtra                      .. Petitioner.
          Vs.
     The State of Maharashtra




                                                     
     Through Home Secretary,
     Mantralaya,
     Mumbai - 32                              .. Respondent.




                                           
     Mr.Prantik Majumdar, amicus curiae for the petitioner.
     Mr.J.P.Yagnik APP for the State.
                             
                                  CORAM : V. M. KANADE &
                            
                                          P. D. KODE, JJ.

                          RESERVED ON : 25TH APRIL, 2012

                      PRONOUNCED ON : 5TH OCTOBER, 2012
            


     JUDGMENT (PER P.D. KODE, J.)

1. By the present petition under Article 226 and 227 of the

Constitution of India, sent through jail, the petitioner, convict lodged

at Yeravada Central Prison, Pune, has prayed for quashing and

setting aside the order dated 22nd July, 2011 passed by the

respondent in respect of premature release and further directing the

respondent for reconsidering his case for premature release. The

Additional Sessions Judge for Greater Bombay vide his judgment and

order delivered on 19.3.1999 in Sessions Case No.1420 of 1995 has

convicted the petitioner for commission of offences under section 302

and 337 of the Indian Penal Code and has sentenced him to suffer

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imprisonment for life for the offence under section 302 of IPC but has

not awarded separate sentence for commission of offence under

section 337 of IPC.

2. At the said trial the petitioner was tried for committing murder

of his wife Smt.Shantabai and for causing burn injuries to his minor

sons aged about eight years and two years. Learned counsel for the

petitioner urged that the petitioner is in custody since his arrest

effected on 7th September, 1995 in connection with the said crime

and thus by September 2010 he has completed the statutory period

of actual imprisonment as provided under section 433A of the Code

of Criminal Procedure. The petitioner sought an order of remission

from the respondent in accordance with Short Sentencing Policy

which was in force at the time when the offence was committed i.e.

as per the guidelines issued by respondent in the year 1992.

However, without application of mind respondent wrongly

categorised him in category 1(d) of the said guidelines of the year

1992 and passed impugned order dated 22nd July, 2011.

3. Learned counsel urged that the said category 1 (d) is meant for

the person who had committed murder with premediation and hence

commission of murder with premediation is required to be

established before placing the accused in category 1 (d). He further

urged that perusal of the judgment passed by the trial Court does not

reveal any such finding given by the trial Court and hence placing the

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petitioner in said category 1(d) is without any basis or without there

existing material warranting to place him in such a category.

4. Learned counsel for the petitioner by placing reliance upon the

judgments in Maru Ram and Others v. Union of India AIR 1980

SC 2147; Swaran Singh Vs. State of U.P. AIR 1998 SC 2026;

State of Haryana and Others v. Jagdish AIR 2010 SC 1690;

Epuru Sudhakar & Anr. v. Govt. of A.P. and Others AIR 2006 SC

3385; Satpal and Anr. v. State of Haryana and Others JT 2000

(5) SC 566; Ravindra Shantaram Sawant v. The State of

Maharashtra and Anr. 2010 Cri. L.J. 4251; urged that ratio of the

said judgment leads to the conclusion that judicial review of the order

of the President or Governor under Article 72 or Article 161 as well

as Orders of the State Government under Sections 432 and 433 of

the Criminal Procedure Code, 1973, as the case may be, is

permissible upon the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is malafide;

(c) the order has been passed on extraneous or wholly

irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness.

Hence the petitioner has approached this Court with the prayers of

quashing and setting aside the same and directing the respondent for

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reconsidering his case on rational basis.

5. He further contended that in view of the said proposition the

order impugned deserves to be quashed and set aside as the same

apparently does not reveals the reasons for the respondent coming to

conclusion that the murder committed by the petitioner was with

premediation. He further contended that considering nature of crime

occurred at the hands of petitioner, his case would never fall under

category 1 (d) of 1992 Guidelines and would fall under Guidelines

1(a) or atleast 1(c). He thus prayed for quashing and setting aside the

order and remanding the matter back to respondent no.1 for

reconsideration of the case of the petitioner for premature release.

6. The aforesaid submissions were countered by learned A.P.P. by

urging that the bare perusal of the impugned order reveals that the

respondent has duly taken into consideration the decision in case of

State of Haryana v. Jagdish (supra) and as per paragraph no.43 of

the said judgment, the case of the petitioner has been considered on

the Guidelines which were applicable on the date of his conviction as

well as Guidelines which were in force at the time of considering the

case of the petitioner to ascertain as to which of the said Guidelines

were beneficial for the petitioner. It was urged that there is no

substance in the submissions that the reasons are not given in the

order impugned as the same duly reveals that the judgment dated 6th

September, 1995 delivered by the trial Court was duly considered and

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the fact that the same discloses of the petitioner having committed

murder of his wife with premediation by setting her on fire by means

of kerosene, due to his suspicion of her character was taken into

account while categorising the petitioner in category 1 (d) of 1992

Guidelines and category 2 (b) of the Guidelines of 2010. Learned

A.P.P. urged that since as per both the Guidelines, the period of total

imprisonment to be undergone by the petitioner being one and the

same i.e. of 26 years with remission inclusive hardly the submission

would survive of the case of the petitioner being not considered upon

the Guidelines which were beneficial/favourable to him as observed in

the decision of State of Haryana Vs. Jagdish (supra). Learned

A.P.P. thus contended that the order impugned can never be said to

have been arbitrarily passed. He further urged that on the contrary

the order being passed after duly considering the material against the

petitioner, no interference is warranted with the same.

7. Since the submission advanced by learned counsel for the

petitioner regarding scope of the judicial review regarding the

powers of the State Government of granting pardon and/or remission

are in consonance with the decisions referred by the petitioner no

dilation about the same would be necessary. Now considering the

case of the petitioner the moot question for consideration would be

whether the murder of wife committed by him was with premediation

justifying placing him in the category 1(d) of 1992 Guidelines by the

respondent.

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8. Notably the judgment dated 9th March, 1999 reveals the

prosecution case that about five years prior to the date of incident

the petitioner had married Smt.Shantabai - victim, complainant. The

petitioner alongwith her and the children was residing at

Bhambrekar Nagar hutment near Mhada Colony Kandivali (W).

According to the prosecution the petitioner started suspecting

character of his wife and started neglecting her. He was not giving

money for domestic expenses for which there were quarrels between

them.

It is the main case of the prosecution that on the date of

incident dated 6.9.1995 at about 6 pm the petitioner returned home.

He suspected about her character and there ensued a quarrel. The

petitioner poured kerosene over empty gunny bags in the hut and set

the said gunny bags on fire and pushed Shantabai into burning

flames. She sustained burn injuries. Similarly, two children namely

Firdos aged eight years and Vijay aged two years present at the said

place came in contact with burning flames and they also sustained

injury. The petitioner ran away from the spot. After hearing the cries

of Shantabai, P.W.4 and other persons residing in the neighbourhood

came to the spot and extinguished the fire. The victim - Shantabai

alongwith her children went to nearby Malvani colony where the

persons from her native place were residing. They took her from

Malvani to Bhagwati Hospital, Borivali for treatment. Ultimately on

8.9.1995, she succumbed at the said hospital. She had sustained 70%

burn injuries.

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9. The perusal of the judgment reveals that son Firdos, who was

eye witnesses for the said incident had not supported the prosecution

of the stand taken by him during the investigation in consonance with

the prosecution case. Similarly, neighbours P.W.2 Smt. Chandan Babu

Pathan, P.W.3 Abdul Gani Abdul Bari and P.W.4 Sukhdev Bandoji and

P.W.5 have also not supported the case that the deceased Shantabai

had told them that the petitioner had pushed her towards gunny bags

which were set on fire by him in the hut. A perusal of the judgment

also reveals that the trial Court had accepted dying declaration of

the deceased recorded by Special Executive Magistrate P.W.1

S.B.Jadhav, dying declaration cum FIR recorded by P.W.7 P.I.Shaikh

and history given by the deceased Smt.Shantabai to P.W.8 Dr.V.P.Mali

that burns sustained by her were homicidal burns given by her

husband. The trial Court has also recorded the conflicting defence

taken by the petitioner in paragraph 12 of the judgment.

10. Considering the aforesaid material on the backdrop that there

used to be quarrels between couple, even prior to the incident and

manner in which crime was committed we are unable to accept that

the same does not disclose that the petitioner had murdered his wife

with premediation. Such inference is apparent from the fact of

himself having set gunny bags on fire and thereafter pushed his wife

towards burning flames and having ran away from the spot. The

perusal of the judgment does not afford any reason to come to the

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conclusion that the said incident had occurred either at the spur of

moment or in heat of anger. In the same context the fact of the

petitioner having not taken any steps for saving the life of his wife

and/or arranging for medical treatment for her and on the contrary

ran away are self eloquent.

11. On the said backdrop considering the order impugned it is

difficult to accept that the same is passed without application of

mind, as the same in terms disclose that relevant matters from the

judgment of trial Court were duly taken into consideration by the

respondent while considering the case of the petitioner for

categorisation and placing him in appropriate categories. Similarly, it

is extremely difficult to the accept that the order impugned does not

disclose the reason for placing the petitioner in category 1(d). The

same is abundantly clear from the crucial recital mentioned in the

order to the effect "The perusal of decision of the court makes it

abundantly clear that the prisoner on the count of suspicion of the

character of wife by means of kerosene set her ablaze in a planned

manner".

12. Now reference to the Guidelines of 1992 the relevant part of

the same containing category 1(d) runs as under :

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     Categorisation of Crime           Period     of   Imprisonment to
                                       beundergone             including
                                       remissions subject       to     a




                                                                           
                                       minimum of 14 years of actual
                                       imprisonment including set-off
                                       period.




                                                   
    1. MURDERS RELATING TO
    SEXUAL MATTERS OR ARISING
    OUT OF RELATIONS     WITH




                                                  
    WOMEN, DOWRY DEATHS &
    OTHER    FORM  OR   BRIDE
    KILLING ETC.
    a)    Where the convict is the 22 years.




                                         
    aggrieved person and has no
    previous criminal history and
    committed the murder in an
                            
    individual capacity in a moment
    of     anger    and      without
    premediation.
                           
    b) Where the crime as above is 24 years.
    committed by the aggrieved
    person with premediation.
    c) Where the Crime is committed 24 years.
          

    against the aggrieved person
    without premediation.
       



    d) Where the crime is committed 26 years.
    against the aggrieved person with
    premediation.





    e) Where the crime is committed 28 years
    with exceptional violence or with
    perversity.

Similarly, the reference to the Guidelines of 2010 of which the

relevant part of category 2 runs as under :

    2. OFFENCES RELATING TO
    CRIME AGAINST WOMEN AND
    MINORS





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    a) Where the convict has no                20 years
    previous criminal history and
    committed     the murder in an




                                                                               
    individual capacity in a moment
    of     anger     and     without
    premeditation




                                                      
    b) Where the crime as mentioned            22 years
    above       commited       with
    premeditation
    c) Where the crime is committed            26 years




                                                     
    with exceptional violence and or
    with brutality or death of victim
    due to burns.
    d) Murder with rape                        28 years




                                           
                             

Now considering the matters from both the Guidliens we find it

difficult to find any fault of placing the petitioner in Guideline 1(d) of

1992 Guidelines and 2(c) of 2010 Guidelines by the respondent. We

are of such a opinion due to specific category being provided under

the guidelines of 2010 for causing the murder of a wife by burns,

Similarly, the period of imprisonment to be undergone for such a type

of crime as committed by the petitioner being of 26 years under both

the categories it is difficult to accept that the case of the petitioner

was not considered in the light of the observations made by the Apex

Court in the case of State of Haryana Vs. Jagdish. In the light of

the aforesaid discussion we are unable to find any fault with the order

passed by the respondent and as such we find no merit in the present

petition and hence dismiss the petition.

    (P. D. KODE, J.)                                    (V. M. KANADE, J.)