1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 250 OF 2010 Rajendra Himmatrao Borse, Prisoner No.3924, at present Paithan Open District Prison Aurangabad ...Petitioner Versus 1 The State of Maharashtra Through Secretary Home Department Mantralaya, Mumbai 32 2 The superintendent of District Prison, Paithan, Aurangabad Copy to be served on Public Prosecutor, High Court Bench at Aurangabad ...Respondents ..... Mrs. A.N. Ansari, advocate for the petitioner Mr. N. R. Shaikh, A.P.P. for respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATE OF RESERVATION OF JUDGMENT : 21.06.2010 DATE OF PRONOUNCEMENT OF JUDGMENT : 22.06.2010 2 ORAL JUDGMENT (PER SHINDE, J.):- 1 Heard counsel for the parties. 2 Rule. Rule made returnable forthwith. By consent of the counsel for the parties, petition is heard finally. 3 This writ petition takes exception to the order dated 10.9.2009 passed by the Section Officer, Home Department, Government of Maharashtra, Mantralaya, Mumbai i.e. Exh.A to the petition, thereby fixing the case of the petitioner under category 1(d) of the guidelines dated 11.5.1992. 4 It is the case of the petitioner that he was convicted for the offence punishable under section 302 of I.P.C. and sentenced to life imprisonment in Sessions Case No. 62 of 1995 and at present he is undergoing the sentence of life imprisonment. The prosecution case was that the petitioner and four others, who were his relatives were tried for the offences punishable under Section 498-A r.w. 34 of I.P.C. The petitioner alone was also tried for the offence punishable under Section 302 of I.P.C. The petitioner herein is convicted under Section 302 of I.P.C. and sentenced to life imprisonment. However, The other accused persons as well as the petitioner were acquitted for the offence punishable under section 498-A of I.P.C. Thus, the petitioner 3 is undergoing the life imprisonment as per the judgment and order passed in Sessions Case No. 62 of 1995 dated 17.7.1996 by the IInd Additional Sessions Judge, Malegaon Camp at Nashik. 5 It is the contention of the petitioner that the prosecution case is based on circumstantial evidence and there is no direct evidence in the case in hand. The prosecution has relied on circumstances that deceased had died in the house of the petitioner and there was some dispute between the deceased and her in laws. It is the further contention of the petitioner that there is no evidence brought on record by the prosecution that the petitioner set the deceased on fire. The contention of the petitioner is that by impugned order the case of the petitioner is fixed under category 1(d) of the guidelines dated 11.5.1992. According to the petitioner, the petitioner's case does snot fall under category 1(d). The fixing of category of petitioner under category 1(d) is not justifiable taking into consideration the judgment of the trial court. The judgment of the trial court is based upon circumstantial evidence and there is no direct evidence and moreover there is no finding recorded in the judgment that the offence is committed with premeditation. In absence of finding that the offence is committed with premeditation the fixing of case under category 1(d) of the guidelines is not proper and justifiable. 4 6 Counsel appearing for the petitioner submitted that if the evidence brought on record by the prosecution is considered and if the judgment of the trial court is perused carefully, it seems that the case of the petitioner falls under category 1(c) and not under category 1(d) of the guidelines, as has been held by the impugned judgment. The counsel for the petitioner invited our attention to the findings recorded by the IInd Additional Sessions Judge, Malegaon in Sessions Case No. 62 of 1995 and submitted that the act of the petitioner cannot be said to be with premeditation and therefore, his case is squarely covered under category 1(c) of the guidelines dated 11.5.1992. 7 On the contrary, the learned A.P.P. invited our attention to the affidavit in reply filed on behalf of the State. Learned A.P.P. submitted that at the relevant time when the incident in question took place, deceased Pushpa was carrying pregnancy. Learned A.P.P. also invited our attention to para 8 of the affidavit in reply and contended that the act of the accused was with premeditation and rightly his case is fixed under category of 1(d) of the guidelines 1992 and therefore, no infirmity can be attributed to the impugned order. 8 We have heard counsel appearing for the petitioner and the learned A.P.P. for the respondent at length. We have also perused the judgment and order passed by the IInd Additional Sessions Judge, Malegaon camp at Nashik in Sessions Case No. 62 of 1995. It is not 5 in dispute that in pursuance to the judgment and order dated 17.7.1996, the petitioner is undergoing the sentence of life imprisonment. It is also not in dispute that the Home Department of Government of Maharashtra has considered the case of the petitioner by the impugned order holding that the case of the petitioner falls under category 1(d) of the guidelines. The only question which requires to be answered in this petition is whether the case of the petitioner falls under category 1(c) or 1(d) of the guidelines dated 11.5.1992. Clause 1(d) of the said guidelines is reproduced herein below;- 1 Murders relating to sexual mattes or arising out of relations with women dowry death and other form or bride killing etc. (a) ..... (b) .... (c) .... (d) Where the crime is committed against the aggrieved person with premeditation 26 years 9 With the assistance of the counsel appearing for the petitioner and the learned A.P.P. we have perused the judgment and order passed by the Additonal Sessions Judge, Malegaon. In para 32 and 6 33 of the said judgment, the trial Court has considered that whether deceased died homicidal death on account of the act of setting her ablaze by the petitioner. Learned Judge has observed that it is established on record that immediately before the actual incident, there was quarrel between the accused No.1 and Pushpa in which he denied the paternity of her foetus and this has led the incident of assault. It is obvious that intention is a question of fact which is to be gathered from acts of the parties. It is further observed by the learned Judge that intention is natural results of a man’s act and not the condition of his mind. The act of the accused in this case viz. Pouring of kerosene oil from the house on the person of Pushpa while she was asleep, setting her ablaze by means of a match-stick, leaving her alone in the house without making any attempt to extinguish the fire by repenting as to what he had done, clearly show the intention on the part of the accused to end the life of Pushpa. Learned Judge further observed in para 33 that the C.A. Report, which is at Exh.68, shows that kerosene residues were detected on the partially burnt clothes of Pushpa and also in the seized iron stone and plastic can from the house of the accused No.1. Learned Judge has concluded that said Pushpa ablaze by using kerosene oil beyond all doubts. We have also perused other parts of the judgment. We do not find any perversity in the impugned order passed by the State Government. Mere perusal of para 32 and 33 of the judgment of the 7 trial court, would clearly demonstrate that act of the accused was with premeditation. We are conscious of the fact that we are not sitting in appeal to test the correctness of the judgment of the trial Court. After considering the rival submissions we are of the considered opinion that the act of the accused was with premeditation and by the impugned order the State Government has rightly fixed the case of the petitioner under category 1(d) of the said Guidelines. The writ petition is devoid of any merits and the same is dismissed. Rule discharged. *****