Umesh @ Aaba Mohan Birhade ... vs The State Of Maharashtra And ...
2023 Latest Caselaw 5639 Bom

                                                            Cri.W.P. No.1802/2022
                                        :: 1 ::


          IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                CRIMINAL WRIT PETITION NO.1802 OF 2022



 Umesh @ Aaba Mohan Birhade
 (Convict No.C/4939), Age 50 years,
 Occu. Nil, R/o At present Paithan Open
 Prison, District Aurangabad                         ... PETITIONER

          VERSUS

 1)       The State of Maharashtra,
          through its Secretary,
          Home Department,
          Mantralaya, Mumbai - 400 032

          (Copy to be served on P.P., High Court
          of Judicature of Bombay,
          Bench at Aurangabad)

 2)       The Superintendent,
          Paithan Open Prison,
          Dist. Aurangabad                        ... RESPONDENTS

                                  .......
 Ms Sharada P. Chate, Advocate for petitioner
 Mr. R.B. Bagul, A.P.P. for respondents
                                 .......

                           CORAM :      R.G. AVACHAT AND
                                        SANJAY A. DESHMUKH, JJ.

                           DATE     :   15th JUNE, 2023

 ORDER:

Heard. The petitioner along with his brother have been

convicted for committing murder of their brother. For remission

purpose, the petitioner has been placed in Category 4(d) of the

Cri.W.P. No.1802/2022 :: 2 ::

guidelines dated 15/8/2010. the said category reads thus :

  Category        Sub-     Caterogisation of Crime        Period of imprisonment to be
    No.           Cate-                                  undergone including remissions
                  gory                                     subject to a minimum of 14
                                                          years of Actual Imprisonment
                                                             including Set-off period
  4               (d)      Murders committed by          24 years
                           more than one person or
                           group of persons

2. According to learned counsel for the petitioner, the

case of the petitioner falls in Category 3(b), which reads thus :

   Cate-     Sub-              Caterogisation of Crime            Period of imprisonment
   gory      Cate-                                               to be undergone including
    No.      gory                                                  remissions subject to a
                                                                  minimum of 14 years of
                                                                    Actual Imprisonment
                                                                  including Set-off period
  3                     Murder arising out of Land dispute,
                        family feuds, family prestige and
                        superstition
            (a)         ..........
            (b)         Crime committed as above with            22 years

premeditation, either individually or by a gang

3. Learned counsel for the petitioner takes us through the

judgment of conviction and consequential sentence. Close reading

of the judgment itself indicates that, it was a case of the prosecution

that, four brothers including the present petitioner and the co-

convict were on one side and the deceased on the other. Those

Cri.W.P. No.1802/2022 :: 3 ::

four brothers were not happy over partition of the family land.

When the deceased had moved an application for crop loan, an

objection was raised by the brothers including the petitioner herein.

The murder is a fall out of the said dispute.

4. The learned A.P.P. submits that, partition of the landed

property took long back. In a property dispute, there ought to have

been a suit for reopening of a partition or some kind of dispute over

the landed property. Such was not the case. When the deceased

had moved an application for crop loan, the four brothers came

together and committed brutal murder of their brother. The

complainant had also suffered injury. According to him, it was a

case of attempt to commit murder of the complainant in addition to

the murder of the brother of the petitioner. According to learned

A.P.P., the case of the petitioner has, therefore, rightly been placed

in Category 4(d) as it was a murder committed by more than one

person.

5. We have considered the submissions advanced. True,

it was a case of murder committed by more than one person. The

reason therefor was, as per the prosecution case itself, that the

petitioner, co-convict and their two brothers were not happy with the

partition of the family property. The same suggests that there was a

dispute among all the brothers over the landed property. It will also

Cri.W.P. No.1802/2022 :: 4 ::

suggest that it was a case of family feud. If a person simply moves

for crop loan, no other person would have reason to object if the

landed property is not family property for which the loan was

sought. It was a case of dispute over land. In our view, therefore,

the State Government ought to have placed the petitioner in

Category 3(b) instead of Category 4(d).

6. We are, therefore, inclined to allow the petition. The

petition therefore succeeds. The petition is allowed. The State

Government is directed to place the petitioner in Category 3(b) and

grant him necessary relief within a time-frame of six weeks from

today.

(SANJAY A. DESHMUKH, J.) (R.G. AVACHAT, J.)

fmp/-