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2013 DIGILAW 686 (BOM)

Bharat s/o Bahadur Ingale v. State of Maharashtra

2013-03-20

A.V.NIRGUDE, NARESH H.PATIL

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Judgment : Naresh H. Patil, J. 1] Heard learned counsel for the parties. 2] Rule. Rule made returnable forthwith and taken up for final disposal with the consent of learned counsel for the parties. 3] The petitioner, who is a life convict, challenges the order dated 30.10.2012 of the Home Department of the State of Maharashtra. Under the impugned order passed by the State, the petitioner was placed in category 2(c) of the guidelines issued by the Government of Maharashtra, Home Department, on 15.3.2010 under a resolution. 4] The learned counsel for the petitioner submits that considering the facts of the case and the reasoning adopted by the trial Court, the petitioner has to be placed in category 1(c) of the old guidelines of the year 1992. The learned counsel places reliance on two judgments of Division Bench of this Court delivered in Criminal Writ Petition No.1030/2011 on 13.2.2012 and another in Criminal Writ Petition No.630/2010 on 21.9.2010. The learned counsel submits that considering facts of the case and the evidence brought on record, the petitioner did not commit the offence with premeditation. There was no prior preparation for commission of the offence. In a moment of sudden fight between husband and wife, the petitioner poured kerosene on the person of the deceased wife due to which she suffered burn injuries and succumbed to the same. The petitioner has suffered so far more than 14 years of sentence and after completion of 14 years of sentence, a proposal came to be forwarded to the State. 5] The learned APP submits that the petitioner had used the axe and showed his anger while assaulting with the axe on the wooden cot. Thereafter, while the wife was sleeping, the petitioner poured kerosene on her person and set her on fire. It is further submitted that when the quarrel ensued between the petitioner and deceased wife, there was no reason for the petitioner to assault the deceased by pouring kerosene on her person and setting her on fire. 6] The petitioner has committed a heinous crime, which is required to be condemned. It is an offence against society at large. 7] We have perused the record placed before us and the judgments of Division Bench of this Court cited supra. We have also perused the judgment of the trial Court. The deceased had suffered 52% burn injuries. 6] The petitioner has committed a heinous crime, which is required to be condemned. It is an offence against society at large. 7] We have perused the record placed before us and the judgments of Division Bench of this Court cited supra. We have also perused the judgment of the trial Court. The deceased had suffered 52% burn injuries. Paragraph no.52 of the judgment of trial Court reads as under:- "Now the question is whether the injuries sustained by the deceased were sufficient to cause her death. For that purpose, the evidence of PW 3 Dr.Uttam Jadhav is there. This witness has conducted the post-mortem and according to this witness, Sunanda sustained 56% of burn injuries. The cause of death is Cardio Respiratory arrest with septicemia. Dr.Jadhav has deposed that 56% of burn injuries were sufficient to cause death, even-if timely proper medical aid was provided to the patient." 8] The petitioner's conduct prior to the incident of burning is worth noticing. The petitioner had taken a plea of alibi, which he could not establish. The dying declaration of deceased wife of the petitioner was recorded. The deceased had blamed the petitioner for causing her burn injuries. 9] We have perused the old guidelines of the year 1992. We find that in the guidelines dated 15.3.2010, a specific category is included under the head "Offences relating to crime against women and minors". This category is included in the guidelines with a specific purpose. Under the guidelines for premature release of prisoners framed in the year 1992, category No.1 reads as under:- (1) MURDERS RELATING TO SEXUAL MATTERS OR ARISING OUT OF RELATIONS WITH WOMEN, DOWRY DEATHS AND OTHER FORM OF PRIDE KILLING ETC.: 10] Under the guidelines framed under the Government resolution dated 15.3.2010, category No.2 specifically framed as "OFFENCES RELATING TO CRIME AGAINST WOMEN AND MINORS" reads as under:- "(2) OFFENCES RELATING TO CRIME AGAINST WOMEN AND MINORS:- (a) Where the convict has no previous criminal history and committed the murder in an individual 20 capacity in a moment of anger and without premeditation. (b) Where the crime as mentioned 22 above committed with premeditation. (c) Where the crime is committed with exceptional violence and or with 26 brutality or death of victim due to burns. (d) Murder with rape. (b) Where the crime as mentioned 22 above committed with premeditation. (c) Where the crime is committed with exceptional violence and or with 26 brutality or death of victim due to burns. (d) Murder with rape. 28 " 11] Perusal of the guidelines of the year 1992 would show that under category 1(c), if crime is committed against aggrieved person without premeditation, the convict could be released after period of 24 years. Whereas under the same category in clause (e), where the crime is committed with exceptional violence or with perversity, the period of sentence would be 28 years. 12] Category 2(c) framed under the Government resolution dated 15.3.2010 refers to crime committed with exceptional violence and/or with brutality or death of victim due to burns, for which 26 years sentence is prescribed. 13] In both these classes of categories, exceptional violence is referred. Considering the facts of the case and the evidence brought on record, we are of the view that the decision by the State Government in placing the petitioner in category 2(c) of the guidelines framed on 15.3.2010 would be appropriate. 14] We may refer to paragraph no.27 of the decision in State of Haryana V/s Jagdish reported at AIR 2010 SC 1690 , which reads as under:- "27. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfillment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433-A, Cr.P.C. may have a different flavour in the statutory provisions, as short sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself." 15] In the light of peculiar facts, defence adopted by the petitioner and the reasoning of the trial Court, we find that the decision of the State in placing the petitioner in category 2(C) of the guidelines contained in the Government resolution dated 15.3.2010 is appropriate. Burning of bride is a serious social offence. In spite of stringent provisions of law and deterrent steps taken, we find that incidents of violence against women could not be curbed. 16] Considering the matter in its entirety, we are of the view that no fault can be found with the decision taken by the State. There is no merit in the petition. The petition is dismissed. Rule is discharged. 17] The Secretary, Legal Services Authority at Aurangabad Bench is directed to pay fees to the learned counsel appointed for the petitioner.