J.B. Pardiwala, J.:— The registry is in receipt of a letter dated 17 October 2019 addressed by the Jail Superintendent, Rajkot Central Jail, to the Registrar of this High Court, seeking the opinion of this Court for the purpose of granting benefit to a convict by name Dhirubhai Somabhai Chamar for the purpose of remission of sentence under the provisions of Section 433A of the Code of Criminal Procedure, 1973.
2. It appears from the materials on record that the convict namely Dhirubhai Somabhai Chamar was put on trial in the court of the Additional Sessions Judge, Surendranagar, for the offence of murder punishable under Section 302 of the Penal Code, 1860. Dhirubhai Somabhai Chamar came to be convicted by the trial court for the offence of murder and was sentenced to undergo life imprisonment with a fine of Rs. 10,000,00. Dhirubhai Somabhai Chamar preferred the Criminal Appeal No. 662 of 2000 in this High Court questioning the legality and validity of the judgment and order of conviction passed by the trial court dated 28 June 2000 in the Sessions Case No. 35 of 1999. The Criminal Appeal No. 662 of 2000 came to be dismissed by this Court vide judgment and order dated 8 October 2001. While dismissing the Criminal Appeal, this Court observed as under:
“4. Considering the submissions and on going through the evidence of the prosecution, it transpires that the incident in question had occurred on 5.4.99 at night. As per the complaint filed by the complainant Shantuben, she and her husband Chhanabhai and her son Ramesh, after taking their dinner, went to sleep in a Falia on a cot. Her husband Chhanabhai and his son Ramesh were sleeping in the same cot, while the complainant had also slept in the nearby cot and there was a light from the electric lamp, which was kept in the Ossari. At about 11.30 to 11.45 at night, her husband had raised cries and accordingly Shantuben and her son Ramesh had awaken and they saw the accused Dhirubhai running away from the place with a sword in his hand and Chhanabhai was trembling and he had a bleeding injury on the chest and his shirt was stained with blood. Shantuben and her son Ramesh have also raised cries and neighbours, namely, Manga Raja, Vadha Raja, Badha Bhala and Jahuben Rajabhai came there and Chhanabhai was found dead. Shantuben has filed complaint before the Police on 6.4.99 disclosing the name of the accused and the motive for crime was highlighted by narrating that four to five days prior to the incident, the cattle of the accused came to their field and Ramesh had beaten the said cattle and accordingly the accused Dhirubhai was excited and pressed the neck of her son. This incident was informed by Ramesh to his father Chhanabhai and Chhanabhai has scolded the appellant - accused and accused has uttered that, “I will not leave you”. Even prior to two days of the incident, accused has an altercation with Chhanabhai and he tried to assault Chhanabhai and it is only because of the intervention of other people residing in the Vas, accused has left the place. During investigation, the statements of witnesses were recorded and the Panchanama of the scene of offence as well as Inquest Report were drawn. The dead body of Chhanabhai was sent for post mortem in the Hospital. The accused was arrested on 7.4.99. The accused was placed for trial before the learned trial Judge for the offence under Section 302 of the I.P.C. as well as under Section 135 of the Bombay Police Act.
5. As found from the evidence of complainant Shantuben, she has highlighted the way in which the incident has occurred, in which the accused has assaulted her husband Chhanabhai and she saw the accused running away with the weapon like sword. Ramesh, the son of the deceased, was also sleeping with Chhanabhai in the same cot and he had also seen the accused with the sword when he heard shouts of his father. Other witnesses also, on hearing the shouts raised by the complainant and Ramesh, had immediately gathered at the place and they saw Chhanabhai was dead. It is further found from the record that the accused was arrested on 7.4.99 and the sword, having blood stains, was recovered. The shirt of the accused was also found having a blood stain. As per the report of the Serologist, there was a human blood with ‘O’ Group. There was no blood group on the sword but it was found to contain human blood. As found from the evidence of the complainant Shantuben and her son Ramesh, whose presence is natural, the incident in question has occurred in the Falia at night and as found from the Panchanama, there was a light on the Falia. Accordingly the learned trial Judge has accepted the evidence of these two eye witnesses by holding that the prosecution has proved that the accused is guilty for the offence under Section 302 of the I.P.C. On considering the submissions and on going through the evidence, it is difficult for us to accept the submission of Mr. Bhatt that the learned trial Judge has committed error in accepting the evidence of complainant Shantuben as well as her son Ramesh. Their evidence is also further corroborated by medical evidence and in our view, the learned trial Judge has rightly accepted the evidence of the prosecution witnesses, while convicting the accused. In our view, the finding recorded by the trial court is based on evidence and no error is committed by the learned trial Judge requiring our interference with such findings. Accordingly the judgment and order of conviction recorded by the learned trial Judge deserves to be confirmed. Appeals are accordingly summarily dismissed.”
3. It appears from the jail report that Dhirubhai Somabhai Chamar has undergone more than 14 years of imprisonment. The State Government is considering his case for remission of the sentence under Section 433A of the Code. In such circumstances, the State Government is seeking the opinion of this Court in this regard.
4. The Supreme Court, in the case of Sangeet v. State of Haryana, reported in (2013) 2 SCC 452, has observed that:
“Before actually exercising the power of remission under Section 432 Cr.PC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remission can, therefore be given only on a case-by-case basis and not in a wholesale manner”
5. We quote the relevant observations of the Supreme Court made in the case of the Sangeet (supra) as contained in paras 77.5, 77.6, 77.7 thus:
“77.5 The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in statue. These need to be faithfully enforced.
77.6 Remission can be granted under Section 432 CrPC in the case of a definite term of sentence. The power under this Section is available only for granting “additional” remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
77.7 Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.”
6. Having regard to the dictum as laid by the Supreme Court in the above referred decision, the matter has been referred to us so that we can express our opinion whether the sentence of life imprisonment deserves to be remitted or not.
7. The Constitution Bench of the Supreme Court, in the case of Union of India v. V. Sriharan alias Murugan, (2016) 7 SCC 1, per majority view, held that:
“Life imprisonment in terms of Sections 53 read with 45 IPC means the entirety of the life of the prisoner unless it is curtailed by remissions validly granted under Section 432 CrPC or Articles 72 or 161 of the Constitution. A life convict only has the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State or under Section 432 CrPC.”
8. There is nothing to indicate that the convict herein is a hard-core criminal and may prove to be a menace or a threat to the society at large if the benefit of remission is granted. He has, by now, undergone almost more than 14 years of sentence.
9. Having regard to the genesis of the occurrence, the period undergone by the convict in jail and his overall conduct, we are of the view that the sentence of life imprisonment deserves to be remitted. The State Government may accordingly do the needful in accordance with law.
10. However, we take notice of the fact from the jail report that while undergoing the life imprisonment, the convict was released on furlough sometime in the year 2004. He did not surrender in time and was absconding for 2038 days. If it is the policy of the State Government that a convict who has absconded and has committed any offence under the Prisons Act or any other Act and not entitled to the benefit of remission, then it is upto the State Government to take appropriate decision in this regard.