Bombay High Court
Sopan Bhausaheb Gunjal (C-4911) vs The State Of Maharashtra And ... on 12 April, 2023
Bench: Mangesh S. Patil, Abhay S. Waghwase
1 Cr. WP / 1128 / 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1128 OF 2022
Sopan S/o Bhausaheb Gunjal,
(Convict No - 4911)
Age : 39 years, Occu : Convict,
R/o Sulewadi, Tal. Sinnar, Dist. Nasik
(Undergoing his sentence
at Open Jail, Paithan) .. Petitioner
Versus
1] State of Maharashtra,
Through Superintendent of Jail,
Open Jail, Paithan
2] Secretary,
Home Department (Prison),
Mantralaya, Mumbai - 400 005 .. Respondents
...
Mr. Rupesh A. Jaiswal, Advocate for petitioner
Mr. G.O. Wattamwar, APP for the respondent - State
...
CORAM : MANGESH S. PATIL &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 30 MARCH 2023
PRONOUNCED ON : 12 APRIL 2023
ORDER (MANGESH S. PATIL, J.) :
Heard.
2. In this petition under Article 226 and 227 of the
Constitution of India, the petitioner is seeking premature release under
section 432 of the Code of Criminal Procedure pursuant to the
guidelines framed by the State Government under section 433 of the
Code of Criminal Procedure.
2 Cr. WP / 1128 / 2022
3. The petitioner with other accused has been convicted for
murder of his wife Kalpana on account of dowry and was sentenced to
life imprisonment under section 302 of the Indian Penal Code. He has
undergone 16 years of actual imprisonment and with inclusion of
remission it would constitute 24 years of imprisonment.
4. The petitioner claims that considering the guidelines
framed by the State government under section 433 of the Code of
Criminal Procedure taking into consideration the circumstances in
which he has been found guilty of committing murder, his case has
been placed in category 1(E) of the guidelines of the year 1992 which
is corresponding to category no. 2(c) of the guidelines of 2010.
He ought to have been placed in category no. 2(b) of the guidelines of
2010 which prescribe punishment of 24 years.
5. Learned advocate Mr. Jaiswal would take us through the
judgment of the trial Court whereby the petitioner was convicted and
submitted that there was nothing before the trial Court to demonstrate
that the crime was committed with exceptional violence or brutality.
She had died of asphyxia due to drowning and in the peculiar
circumstances, the trial Court concluded that it was doubtful if she was
first killed and immediately thrown or was simply beaten and was
thrown in the well. He would advert our attention to the evidence of the
Medical Officer Dr. Vasant Karande who was examined as prosecution
3 Cr. WP / 1128 / 2022
witness no. 1. He would submit that though the report submitted by the
trial Court under section 432 of the Code of Criminal Procedure
mentions that the crime was committed with exceptional violence
and/or brutality, the report does not take into consideration the entire
judgment of the trial Court. He would submit that in every crime there
would be some violence but that would not necessarily make it an
exceptional violence. In order to distinguish the two he places reliance
on the observations of this Court in the matter of Rajaram Patil v. State
of Maharashtra; 1997 (99) Bom.L.R. 98.
6. Per contra, the learned APP referring to the affidavit-in-
reply supports the decision placing the petitioner in category 2(c) of the
government guidelines of 2010.
7. We have carefully considered the rival submissions and
perused the papers.
8. In view of the Full Bench decision of this Court in the
matter of Yovehel Vijaykumar Gouri Vs. State of Maharashtra and
others; 2020 (6) Mh.L.J. 571 any opinion expressed by the Presiding
Judge of the trial Court under section 432 of the Code of Criminal
Procedure is binding on the authorities. Consequently, when the trial
Court in its report submitted under section 432 of the Code of Criminal
Procedure has expressly stated that the crime was caused with
exceptional violence, obviously, the respondents were legally bound to
4 Cr. WP / 1128 / 2022
obey such observation. However, that will not denude this Court the
power of examining the correctness of the view expressed under
section 432 of the Code of Criminal Procedure.
9. In the report submitted by the Adhoc Additional Sessions
Judge, Nasik dated 27-12-2016 it has been mentioned that the
deceased - Kalpana was subjected to ill-treatment on account of their
demand for money, she was repeatedly assaulted causing injuries on
her person and was killed by drowning into the well and would
constitute the dowry death. It was committed within three months of
the marriage. It is for this reason that the report submits that the
petitioner could be appropriately placed in category no. 2(c) of the
Government guidelines dated 15-03-2010 and liable to suffer actual
imprisonment for 26 years.
10. It is necessary to note that considering the evidence before
the trial Court, the Judge who rendered the conviction had minutely
referred to the testimonies of the witnesses. Though there was
evidence that there were some injuries on the person of Kalpana which
had appeared in the post-mortem report, the Medical Officer
Dr. Karande (PW1) had opined that those were caused 2-3 days prior
to her death and that the evidence demonstrated that she was beaten
on the earlier days and on the date of the incident she was thrown in
the well.
5 Cr. WP / 1128 / 2022
11. Though unfortunate and though the crime was committed
barely within three months of the marriage and there was evidence
regarding demand for dowry and about beating, which injuries were
caused 2-3 days prior to the incident, in our considered view in view of
the following observations in the matter of Rajaram Patil (supra), these
circumstances would not constitute exceptional violence or
demonstrates perversity of mind. Following observations are relevant :
"4. Every murder is a result of some kind of violence. Use
of weapon or blows on the vital part by itself cannot be
termed to be an exceptional violence. Such a violence
would be ordinary violence for committing murder. It
appears that the State Government wanted to create a
separate category of murders in which there is an
exceptional violence or which show that the perversity of
mind. In a peace loving society, every murder is bound to
shock the members of the society but the exceptional
violence creates tremors of shock and indignation. We
do not wish to give examples which amount to
exceptional violence but suffice it to say that, the present
case is not one which can be labelled as a case of
exceptional violence. Though every offence of murder is
creation of an ill-mind, perversity is something more than
that. Perverse individuals may act in a fashion in
committing the murder as would show that depravity of
balance of mind. We do not see anything in the acts
committed by the present petitioner which show any
perversity in his mind. The question as to whether there
is an exceptional violence or there is perversity in a
particular case will have to be decided on the basis of the
facts and circumstances of that case and no yardstick of
universal application can be available for this purpose. "
Therefore, in our considered view, the view expressed by the Presiding
judge of the trial Court under section 432 of the Code of Criminal
Procedure is not factually tenable.
6 Cr. WP / 1128 / 2022
12. It is trite, as has been laid down in the matter of State of
Haryana and others Vs. Jagdish; AIR 2010 SC 1690, the policy
beneficial to the prisoner has to be adopted. Category 2(c) in which
the petitioner is placed in the impugned order by the respondents
covers the cases where the crime is committed with exceptional
violence or brutality whereas clause 2(b) covers the crimes which have
been committed against women and minors without any criminal
history but with premeditation.
13. The impugned order, therefore, is not sustainable in law.
14. The writ petition is allowed.
15. The order passed by the respondent no. 2 dated
10-06-2021 (Exhibit B) is quashed and set aside.
16. We direct the respondent no. 2 to pass the order afresh in
the light of the observations made herein-above for placing the
petitioner in category no. 2(b) of the government guidelines dated
15-03-2010. The order shall be passed as expeditiously as possible
and in any case within two weeks.
[ ABHAY S. WAGHWASE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
