Bombay High Court Smt. Prayagbai-vs-State Of Maharashtra And Anr. on 10 September, 1999
Equivalent citations:2000 CriLJ 667, I (2000) DMC 72
Author: J Patel
Bench: J Patel, S Gundewar
J.N. Patel, J.
1. The petitioner has approached this Court by invoking its writ jurisdiction to seek her release from prison on the ground that she has already undergone the sentences imposed on her by the Additional Sessions Judge, Yavatmal, under this Judgment dated 6.8.1985 in Sessions Case No. 23 of 1985 and the respondents have still not ordered her release.
2. The petitioner, Smt. Prayagbai wd/o Sakharam Kamble came to be prosecuted alongwith Sarubai Ramaji Hanwate, for committing offence punishable under Sections 302, 498A read with Section 34 of the Indian Penal Code. It was the prosecution’s case that the petitioner alongwith Sarubai had burnt to death Shobha, wife of Shankar, by pouring kerosene on her and setting her on fire on 28.12.1984 at about 8 a.m. This was in the background that the deceased Shobha was treated with cruelty by her mother-in-law Sarubai and the petitioner – Prayagbai who was related to the deceased as sister-in-law, due to which deceased Shobha alongwith her husband started residing separately in one portion of their house. On the day of the incident, Shobha had gone to the portion of the house where accused persons were residing in the morning at about 7.30 a.m., some altercation to ok place between Shobha, Sarubai – her mother-in-law, and Smt. Prayagbai (sister-in-law) who was at the relevant time residing with Sarubai. On this, the petitioner poured kerosene on the person of Shobha and Sarubai set her on fire. As soon as Shobha caught fire, she came out and raised an alarm due to which neighbours rushed to the spot and extinguished the fire. She was taken to the hospital at Sawana where she was given treatment and thereafter she was referred to General Hospital, Yavatmal. In the course of investigation, her dying declaration came to be recorded which was in conformity with the prosecution case. Subsequently Shobha succumbed to her injuries. Therefore, the petitioner alongwith Sarubai were prosecuted for having committed offence under Sections 302, 498A read with 34 of IPC and were sentenced to suffer R.I. for life and to pay a fine of Rs. 100/- in default to suffer R.I. for three months for the offence punishable under Section 302 read with 34 of IPC. They were” convicted under Section 498A of IPC. and sentenced to suffer R.I. for six months and to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for two months. As the petitioner as well as Sarubai were in jail since 29.12.1984, the learned Trial Court also ordered set-off for the period of detention as contemplated under Section 428, Cr.P.C.
3. An appeal was preferred by the accused persons before this Court, which came to be registered as Criminal Appeal No. 255 of 1985, and came to be dismissed on 2nd December, 1989, against which SLP was preferred before the Apex Court, which also came to be dismissed on 19.1.1990.
4. While undergong the sentence, Sarubai died in jail.
5. It is the contention of the petitioner that the respondent/State has wrongly decided her case considering the same to fall in the category 1(d) of the Guidelines for Premature Release for Prisoners sentenced to Life Imprisonment or to death penalty converted to life imprisonment after 18th December, 1973. It is further submitted that the crime committed by the petitioner was without premeditation and, therefore, her case would not fall in category 1(d), but in the category 1(c). It is, therefore, submitted that in case the category of the crime committed by the petitioner falls in category 1 (c) of the guidelines, then she is entitled for release after completing period of imprisonment for 24 years which would reduce her incarceration by two years.
6. Another contention of the petitioner is that she is also entitled for the benefit provided under the Guidelines for Prisoners with normal features and having good behaviour in prison. As the guidelines clearly provide that the prisoner having exceptionally good behaviour or possessing factors, which justify a sympathetic consideration, may be released earlier by a period up to one year than that specified in the guidelines and for this purpose, her case has not been considered by the Advisory Board.
7. According to the petitioner, the respondent/State, by its order dated 1st of December, 1998 has wrongly categorised the petitioner in the category 1(d) of the guidelines issued by the Government of Maharashtra vide letter No. QLP-1092/30/ 282/PRS-3 dated 11th May, 1992 and the petitioner’s case has not been considered for review under Section 432(4) of the Criminal Procedure Code as the petitioner’s conduct in the jail is good and she is entitled for consequential remission as provided under the Act and if this is taken into consideration, then the petitioner has already undergone the imprisonment and she deserves to be released forthwith.
8. On behalf of the respondents, it is submitted that the petitioner is entitled for being released on 11 /10/2003 i.e. after completing 26 years, including remission and she is not due for immediate release as contended by the petitioner. It is submitted that the case of the petitioner would fall under category 1(d) and she has to undergo imprisonment for the period of 26 years itself. According to the respondents, as per the conviction and sentence imposed on the petitioner, she would be entitled to be released on 28/3/2011, but considering the remission which is of 7 years 5 months and 17 days, her date of release is 11/10/2003 and, therefore, the case of the petitioner deserves to be dismissed as she has only completed 22 years and she is not due for release.
9. It is further submitted that as per the guidelines, there is no provision of additional remission of one year, but insofar as this benefit of remission as regards normal good conduct, remission is already granted to the petitioner and, therefore, in absence of any provisions, her case cannot be considered for such remission as claimed in terms of the new guidelines and, therefore, it is submitted that the petitioner has no case on merits.
10. In order to ascertain whether the case of the petitioner would fall in category 1 (d) or in 1 (c) of the guidelines, it is the Judgment of the Trial Court which has been confirmed by the High Court as well as the Apex Court, can only be taken into consideration. What has been proved against the petitioner is that she in furtherance of her common intention alongwith Sarubai, committed murder of deceased Shobha by pouring kerosene on her and setting her on fire. Whether this crime was committed with premeditation or without premeditation would go to decide whether the petitioner’s case would fall under category 1(d) or 1(c). On examining the fact we find that the respondent/State have committed an error in placing the case of the petitioner in category 1(d). Category 1 provides for cases of murder relating to sexual matters or arising out of relations with women, dowry deaths and other forms of bride killing, etc. a case will fall in sub-category (d) where the crime is committed against the aggrieved person with premeditation, the period of imprisonment to be undergone including remissions subject to a minimum of 14 years of actual imprisonment including set-off period, is 26 years, whereas in sub-category (c) where the crime is committed against the aggrieved person without premeditation, the period of imprisonment to be undergone is 24 years. We do not find that the crime committed by the petitioner and co-accused Sarubai was with premeditation as on the day of the incident i.e. on 28.12.1984, the deceased Shobha had gone to house where the accused were residing and had quarrelled with them and crime is committed as an outcome of that quarrel and, therefore, we do not find any likelihood of premeditation on the part of the petitioner and, therefore, the order dated 18th December, 1998 in respect of the petitioner wherein the Government has decided that the prisoner No. C-2288, Prayagbai Sakharam Kamble confined in Nagpur Central Prison should be released on completion of 26 (twenty-six) years of imprisonment including all remission, subject to the completion conduct in the prison up to the aforesaid time of her release, will have to be quashed and set aside and instead of 26 years of imprisonment, 24 years of imprisonment will have to be substituted as the case of the petitioner falls in category 1(c) of the guidelines relating to categorisation of crimes issued by the State of Maharashtra.
11. As regards the contention of the petitioner that she is entitled for special remission in addition to the usual remission in jail, it is already contended by the respondents that no such special remission is available to the convicts as per the guidelines notified by the State on 19.5.1992 and the case has been duly considered by the Advisory Board and the prisoner has been granted remissions for good conduct to which she was entitled. In absence of any such resolution of the State, it will not be possible for us to issue any directions to the respondent/State to consider the case of the petitioner for special remission as claimed. We make it clear that if any such policy is in vogue and applicable to the case of the petitioner, the respondent/State would consider the case of the petitioner as per those guidelines and give her benefit of such special remission if she is so entitled. We, therefore, hold that the crime committed by the petitioner falls in category 1(c) of the guidelines issued by the respondent/State on 19.5.1992 on the subject and we direct the State to accordingly change its record and extend all the benefits to the petitioner in calculating her period of imprisonment by counting 24 years as period of actual imprisonment required to be undergone by the petitioner including all remission to which she is entitled under the rules and on such calculation, order the release of the petitioner when her case matures for such release. Rule is made absolute in the aforesaid terms.