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2013 DIGILAW 2656 (BOM)

Suresh Vishwanath Jadhav v. State of Maharashtra

2013-12-21

A.S.OKA, S.C.GUPTE

body2013
JUDGMENT 1. Heard the learned counsel appearing for the Petitioner appointed to espouse the cause of the Petitioner and the learned APP for the State. Rule. The learned APP waives service. Forthwith taken up for final disposal. By Judgment and Order dated 7th August 1998, the learned Senior Additional Sessions Judge, Pune convicted the Petitioner for the offence punishable under Section 302 and 498-A of the Indian Penal Code. The Petitioner was sentenced to suffer rigorous imprisonment for life. He was sentenced to pay a fine of Rs. 500/-. The case of the Petitioner for premature release was considered by the State Government. By order dated 7th September, 2009, the State Government came to the conclusion that the case of the Petitioner will be governed by the category of 1(d) of the guidelines framed by the State Government on 11th May, 1992. Therefore, the State Government remitted the portion of the sentence of imprisonment of life which is in excess of 26 years of total imprisonment including of remissions, subject to the completion of actual imprisonment of 14 years, and the condition of good behaviour till the time of his release. 2. The learned APP has placed on record a copy of Judgment and order dated 7th August, 1998 by which the Petitioner was convicted. The learned counsel appearing for the Petitioner invited our attention to the relevant portions of the judgment. He submitted that even going by the case of prosecution as the Petitioner was angry and annoyed, he brought a tin containing kerosene from the kitchen and poured the same on the person of his wife. Thereafter, he lighted a match stick and set the deceased wife on fire. He pointed out that the deceased wife suffered burns to the extent of 46%. He pointed out that it was the Petitioner who accompanied the deceased to the hospital. He, therefore, submitted that the case of the Petitioner will be governed by category 1(a) in Government Policy dated 11th May, 1992. He urged that the Petitioner will have to be categorised in clause 4(a) of the policy dated 15th March, 2010. He urged that the policy which is more beneficial to the Petitioner will have to be followed by the State Government. He placed reliance on the decision of a Division Bench of this Court in the case of Khandu Ganpat Sonawane Vs. State Government (Cri. He urged that the policy which is more beneficial to the Petitioner will have to be followed by the State Government. He placed reliance on the decision of a Division Bench of this Court in the case of Khandu Ganpat Sonawane Vs. State Government (Cri. Writ Petition No. 163 of 2010) decided on 23rd February, 2010 and submitted that the present case will be governed by the said decision of the Division Bench. The learned APP supported the impugned order of the State Government. He urged that this is a case where crime was committed by the Petitioner against the aggrieved person with premeditation and, therefore, the Petitioner has been rightly categorised in clause 1(d) of policy dated 11th May, 1992. He urged that to the facts of the case, the decision in the case of Khandu Ganpat Sonawane will have no application. 3. We have given careful consideration to the submissions. We have perused the Judgment and Order dated 7th August, 1998 by which the Petitioner was convicted. In paragraph 10 of the Judgment, the case of the prosecution has been set out. The case of the prosecution appears to be that at about 8.00 to 8.30 pm on the date of incident, there was a quarrel between the Petitioner and the deceased wife on some domestic issues. The specific case is that the Petitioner was very much annoyed and angry and, therefore, he brought a tin containing kerosene from the kitchen and poured the same on the person of the deceased wife. Thereafter, he lighted match stick and set the deceased wife on fire. The Judgment records that the deceased suffered total burns to the extent of 46% and the cause of death which is accepted by the learned Sessions Judge is septic shock following burns. The learned Sessions Judge has also accepted prosecution case that Petitioner accompanied by one Hema took the deceased to a hospital. However, the learned Sessions Judge noted that the Petitioner is working as Police Constable. 4. We have perused the policy guidelines dated 11th May, 1992. This was the policy prevailing on 7th September, 2009. Clause 1 of the policy deals with the crimes relating to sexual matters or arising out of relations with women, dowry deaths and other form of bride killing etc. Sub-clause (d) thereof is applicable when a crime is committed against the aggrieved person without premeditation. This was the policy prevailing on 7th September, 2009. Clause 1 of the policy deals with the crimes relating to sexual matters or arising out of relations with women, dowry deaths and other form of bride killing etc. Sub-clause (d) thereof is applicable when a crime is committed against the aggrieved person without premeditation. After having perused the Judgment of the learned Sessions Judge, we find that no finding has been recorded by the learned Sessions Judge that the crime is committed with premeditation. On the contrary, the case of the prosecution as set out earlier is that as a result of the quarrel, the Petitioner got annoyed and angry with his wife which led to the commission of the crime. Sub-clause (b) of the Clause 1 applies when crime is committed by the aggrieved person with premeditation. Sub-clause (c) applies when crime is committed against the aggrieved person without premeditation. Even Sub-clause (d) applies when the crime is committed against the aggrieved person. Clause (e) applies when crime is committed with exceptional violence or with perversity. None of the Sub-clauses (b) to (e) will have application in the present case. Sub-clause (a) is applicable when the convict is the aggrieved person and has no criminal history who has committed murder in an individual capacity in a moment of anger and without premeditation. In the present case, the Petitioner was aggrieved by the quarrel with the wife. Admittedly, he has no criminal history. No premeditation has been alleged by the prosecution. Under Sub-clause (a), when a convict undergoes imprisonment for 22 years including remissions, the case for premature release can be considered. In the present case, when the case of the Petitioner was considered, the policy dated 15th March, 2010 was not in existence. Therefore, this case will have to be examined only in the light of a policy dated 11th May, 1992. The decision of this Court in the case of Khandu Ganapat Sonawane is squarely applicable to the fact situation of this case. The Division Bench considered the case of the Petitioner, who in a moment of anger poured kerosene on his wife. Therefore, in our view, Sub-clause (a) of clause 1 of the Policy ought to have been applied in the present case. 5. The Division Bench considered the case of the Petitioner, who in a moment of anger poured kerosene on his wife. Therefore, in our view, Sub-clause (a) of clause 1 of the Policy ought to have been applied in the present case. 5. The learned APP has placed on record, the report dated 20th December, 2013 signed by the concerned Jail Officer, Yerawada Central Prison, Pune which records that the Petitioner has actually undergone sentence of 15 years 3 months 25 days and including the remissions, he has undergone sentence of 23 years 2 months and 22 days. Hence, we pass the following order:- ORDER (i) The impugned order dated 7th September, 2009 is quashed and set aside; (ii) We declare that the case of the Petitioner will fall in the category of 1(a) of the Guidelines dated 11th May, 1992; (iii) We, therefore, direct the State Government to pass order in terms of the said Guidelines. The order shall be passed forthwith as in view of clause 1(a) of the policy, the Petitioner will be entitled to be released on completion of 22 years including all remissions; (iv) Rule is made absolute on the above terms; (v) A copy of this order shall be forwarded to the Petitioner through the concerned Jail Superintendent.