1 Cri. W.P. 881.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 881 OF 2009 Mohammed Gulab Hundekari Age : 49 years, Occu.: Prisoner, Resident of at present Paithan Jail, Paithan District Aurangabad ... Petitioner V E R S U S 1] The State of Maharashtra through Secretary Home Department Mantralaya, Mumbai – 400 032 To be served on Public Prosecutor, High Court, Aurangabad 2] The Superintendent of Open Prison, Paithan, Taluka Paithan, District Aurangabad ... Respondents ... Ms. A.N. Ansari, Advocate for Petitioner. Mr. K.G. Patil, A.P.P. for respondent-State. ... CORAM : P.V.HARDAS AND A.V.NIRGUDE,JJ DATED : 9TH NOVEMBER,2009 ORAL JUDGMENT (PER : P.V. HARDAS, J.):- 1] Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties this Petition is heard finally at this stage. 2 Cri. W.P. 881.2009 2] By this petition under Article 226 of the Constitution of India the petitioner prays for quashing and setting aside the impugned order dated 11.8.2009 passed by the respondent no.1 and also prays for holding that the case of the petitioner falls under guideline no. 1(c) dated 11.5.1992. 3] The aforesaid impugned communication dated 11.8.2009 relates to fitment of the petitioner in the category known as 1(d). The guidelines which are framed for fitment of the prisoners in the aforesaid category with variable periods of imprisonment to be undergone inclusive of remission etc. reads as under:- Categorization of crime Period of imprisonment to be undergone including remissions subject to the minimum of 14 years of actual imprisonment including set-off period 1] Murders relating to sexual matters or arising out of relations with women dowry deaths and other form of bride killing etc. d] Where the crime is committed against the aggrieved person with premeditation 26 years 3 Cri. W.P. 881.2009 4] In respect of 1(d) the period of imprisonment to be undergone by the prisoner is stated to be 26 years and 1(d) provides for fitment in that category where the crime is committed against the aggrieved person with premeditation. Category 1(c) which provides for imprisonment for 24 years is in respect of the crime being committed against the aggrieved person without premeditation. The sole question which is raised in the present petition for our consideration is whether case of the petitioner falls under category 1(c) or 1(d)? 5] The learned APP while filing affidavit in reply on behalf of the respondents has also annexed a copy of the judgment of the trial Court. The trial Court at paragraph no.8 while marshaling the facts has stated that the accused had entered the house of the deceased Chhaya and had demanded Rs.10/-. Chhaya had replied in the negative and the applicant being angered on account of the said refusal, had dragged Chhaya to a adjacent room and had forcibly poured kerosene on her person and had 4 Cri. W.P. 881.2009 set her ablaze. Mere perusal of the facts as are narrated by the trial Court in paragraph no.8 of the judgment would reveal that though the act complained of against the accused is a heinous offence, the aforesaid act was not a pre-meditated act. The trial Court has also not recorded any finding that the accused had gone to the house of the deceased Chhaya carrying a can of kerosene and/or a match-box. 6] In the light of the aforesaid fact and as recorded above that the accused had not gone to the house of Chhaya carrying a can of kerosene, according to us, it can not be said that the offence was done in a pre-meditated manner. In the light of that therefore, according to us the Petition deserves to be allowed and the fitment of the petitioner which falls in category 1(d) deserves to be quashed and set aside and the accused deserves to be placed in category 1(c). It is needless to state that on account of such fitment, the accused/petitioner would be entitled for all the consequential benefits. 5 Cri. W.P. 881.2009 7] Petition is thus allowed. Rule is made absolute on the above terms with no order as to costs. Sd/- Sd/- (A.V.NIRGUDE, J.) (P.V.HARDAS, J.) arp