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2024 DIGILAW 457 (GUJ)

Madhabhai Punjabhai Ghotadiya v. State Of Gujarat

2024-03-06

A.Y.KOGJE, SAMIR J.DAVE

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JUDGMENT : A.Y. KOGJE, J. 1. This application is filed through Jail seeking opinion under Section- 433A of Cr.P.C. for the purpose of remission. The applicant-convict is life convict bearing No.39864 Madhabhai Punjabhai Ghotadiay and at present is aged 70 years. The matter is placed before the Court upon the Communication dated 12-06-2023 submitted by the 3rd Additional Sessions Court, Surendranagar addressed to the Superintendent of Central Jail, Rajkot indicating in such Communication that the applicant-convict herein had faced conviction pursuant to the trial under Sessions Case No.68 of 2000 for offence under Section-302 of IPC and under Section-135 of Bombay Police Act and has been sentenced for life conviction upon being convicted. 2. The Communication also indicates that the applicant-convict herein had preferred Criminal Appeal No.283 of 2002, which came to be dismissed by this Court under its judgment and order dated 28-11-2008 thereby confirming the judgment and order of conviction and sentence dated 30-01-2002 passed by the Additional Sessions Judge at Surendranagar. 3. It is in view of the aforesaid judgment and order of this Court confirming the conviction of sentence, for remission and thereafter, for the purpose of opinion of the confirming Court, present application is listed. 4. The Jail report would indicate that the offence being FIR No.I-41 of 2000 was registered at Lakhtar Police Station for the offence under Section-302 of IPC and under Section-135 of Bombay Police Act. 5. Pursuant to the investigation, the charge-sheet came to be filed and Sessions was committed with the Additional Sessions Judge under Sessions Case No.68 of 2000. After due trial, the Sessions Court at Surendranagar was pleased to convict the applicant-convict herein under its judgment and order of conviction dated 30-01-2002 and since then the convict has continued to be in custody undergoing the life sentence. 6. It appears that the applicant-convict herein had preferred Criminal Appeal No. 283 of 2002, which came to be dismissed by this Court under its judgment and order dated 28-11-2008. 7. According to the Jail report placed along with the application through Jail, actual sentence undergone by the applicant is 20 years and 7 months as on 08-07-2023. He is entitled to set off 1 year, 7 months and 56 days between 05-05-2000 to 21-09-2002 and therefore, as on 08-07-2023, the applicant has undergone sentence of 22 years, 3 months and 26 days. 8. He is entitled to set off 1 year, 7 months and 56 days between 05-05-2000 to 21-09-2002 and therefore, as on 08-07-2023, the applicant has undergone sentence of 22 years, 3 months and 26 days. 8. The Jail report also indicates that the applicant has enjoyed 252 days of furlough leave and 60 days of Parole leave. His previous application for remission filed in the year 2020 and 2021 came to be rejected by the State Government in exercise of powers under Section- 433A on 14-02-2020 and on 26-08-2021 respectively. Nothing is placed on record with regard to the previous rejection of application for remission by the State Government despite the matter being adjourned from time to time. 9. From the record, the Court may observe that previous Criminal Misc. Application No.5407 of 2014 for direction was filed through Jail for the opinion of the Bench, as the Confirming Bench, which affirmed the sentence of life imprisonment of the applicant in terms of Section-433A of Cr.P.C. In the said application, this Court has passed the order dated 09- 05-2014 and had returned the matter back to the Jail Authority as to whether application by the convict was invoking Article-161 of the Constitution of India or whether the convict wants to approach the State Government in terms of Section-433A of Cr.P.C. The order also expressed opinion that if the convict desires to approach the State Government under Section-433A, only in such case, the Bench can be called upon to express its opinion. 10. The Court has taken into consideration the judgment and order recording the conviction convicting the applicant for offence under Section-302 for committing the murder of deceased; Jashabhai Gordhanbhai and Gordhanbhai Punjabhai with fine of Rs.5,000/- and conviction under Section-135 of Bombay Police Act to undergo sentence of six months and fine of Rs.1,000/-. 11. Vide Exh-8, the applicant and his wife (accused No.2) were charged for the incident, which took place at about 10-30 Hours on 05/05/2000, at Malika Village of Lakhtar Taluka of Surendranagar District, both the accused persons had acted in collusion in committing the offence. 11. Vide Exh-8, the applicant and his wife (accused No.2) were charged for the incident, which took place at about 10-30 Hours on 05/05/2000, at Malika Village of Lakhtar Taluka of Surendranagar District, both the accused persons had acted in collusion in committing the offence. Since there was grievance regarding the agricultural land, the accused No.1 had, with an intention to kill Gordhanbhai Punjabhai and Jasabhai Gordhan, beaten them on the road outside the house of the complainant and caused death by causing injuries by using a scythe and accused No.2 had abused by speaking vulgar words and had instigated accused No.1 by using provocative words ‘finish both of them’ and thereby has abated in this act. 12. The conviction and sentence was the subject matter of challenge in Criminal Appeal No.283 of 2002, which came to be disposed of by the judgment and order dated 28-11-2008 thereby confirming the judgment and order of conviction and sentence. 13. This Court while confirming the judgment and order of conviction and sentence has discussed the evidence of eye-witness; PW-1; Manjuben Jagabhai at Exh-21, who is also an informant and the sister in law of the applicant-convict. Upon appreciation of evidence in Para-12 of confirming the judgment and order, the Court has recorded in Para-12 as under: “12. In view of above, it appears that there were disputes between the two brothers about the the ancestral property and on account of such disputes accused Madhabhai assaulted the deceased with 'dhariya' without any grave and sudden provocation. Looking to the injuries, death of Jashabhai and Gordhanbhai were serious. The prosecution evidence is consistent and no infirmity is pointed out in the impugned judgment. Therefore, the learned trial Judge was justified in convicting the appellant and no interference is warranted in the impugned judgment.” 14. Looking to the injuries, death of Jashabhai and Gordhanbhai were serious. The prosecution evidence is consistent and no infirmity is pointed out in the impugned judgment. Therefore, the learned trial Judge was justified in convicting the appellant and no interference is warranted in the impugned judgment.” 14. The present proceeding appears to have emanated from and by the State Government, which is evident from the Communication dated 08-07-2023 addressed by the Superintendent of Rajkot Central Jail to the Registrar of High Court of Gujarat indicating that the proceedings are required to be initiated under Section-433A of Cr.P.C. by the State Government for remission and therefore, an opinion is required for which the correspondence was entered into with 3rd Additional Sessions Judge, Surendranagar, which has convicted the applicant and in response to such correspondence, the Court may refer to Communication dated 12-06-2023 by the 3rd Additional Sessions Judge, Surendranagar to the Superintendent of Jail indicating that as a subsequent development, the Appeal preferred by the convict before the High Court has been dismissed and thereby the High Court is the Confirming Court and hence, opinion required as such would be that of this Court and accordingly the proceedings are placed before this Court. 15. The Apex Court in the recent decision in case of Bilkis Yakub Rasool v/s. Union of India and others reported in AIR 2024 SC 289 has pronounced upon the powers under Section-432 of Cr.P.C. and has adumbrated the factors required to be taken into consideration. The Apex Court has thus, in Para-55, has held as under: “55. We however would like to indicate the factors that must be taken into account while entertaining an application for remission under the provisions of the CrPC, which are however not exhaustive of the tests which we have discussed above. They can be adumbrated as under: (a) The application for remission under Section 432 of the CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred. (b) A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. (b) A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A of the CrPC must be noted inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed. (c) The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted by us, namely, (i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the case; (iii) the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. (d) The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply. (e) While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar, namely,- (i) Whether the offence is an individual act of crime without affecting the society at large? (ii) Whether there is any chance of future recurrence of committing crime? (iii) Whether the convict has lost his potentiality in committing crime? (iv) Whether there is any fruitful purpose of confining this convict any more? (v) Socio-economic condition of the convict’s family. (ii) Whether there is any chance of future recurrence of committing crime? (iii) Whether the convict has lost his potentiality in committing crime? (iv) Whether there is any fruitful purpose of confining this convict any more? (v) Socio-economic condition of the convict’s family. (f) There has also to be consultation in accordance with Section 435 of the CrPC wherever the same is necessitated. (g) The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 of the CrPC. (h) Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order. (i) When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same. (i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii) that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness.” 16. The facts of the present case as is indicated in the preceding paras are that the incident is an outcome of private dispute pertaining to ancestral land between two brothers and therefore, even from narration of eye-witness on account of the dispute there ensued the scuffle resultantly the convict delivering blows of Dhariya inflicted four injuries on the chest, shoulder and mandible (near mouth) on the deceased; Jashabhai Gordhanbhai; and three sharp cutting wounds on the face and left shoulder on the body of the deceased; Gordhanbhai Punjabhai. The Postmortem report as well as the evidence of Doctors performing the Postmortem report are vide Exh-34 and Exh-37. 17. The Court has also taken into consideration the Jail Record. The Postmortem report as well as the evidence of Doctors performing the Postmortem report are vide Exh-34 and Exh-37. 17. The Court has also taken into consideration the Jail Record. As is mentioned in the preceding paras, particularly, the jail conduct of the applicant-convict being reportedly ‘Good’ and the age of the applicant-convict is now 70 years, on these facts, the Court is of the opinion that the case of the applicant-convict is a fit case for remission considering the following: (i) Overall facts of the case would indicate that offence is an outcome of personal rivalry on account of ancestral property dispute not affecting the society at large. (ii) Considering the age of the convict, now being 70 years and as having undergone more than 22 years of actual imprisonment. (iii) The Court sees that there is no chance of future recurrence of committing of similar crime, as the applicant-convict having lost potentiality to commit similar crime with an advanced age. (iv) No fruitful purpose would be served in confining the convict any further considering the factors like Socio-economic condition of the convict’s family and requirement of Section-435 of Cr.P.C. 18. The application thus placed before the Court through jail is disposed of in the aforesaid terms. Rule is made absolute to the aforesaid extent.