Shishpal alias Pala vs State of Haryana

V.K. Jhanji, J. (Oral)

The present petition under Section 482, Cr.P.C. read with Articles 226/227 of the Constitution of India, has been filed for a direction to the respondents to release the petitioner prematurely on the basis of instructions dated 19.11.1991.

It has been stated in the petition that the petitioner was tried for the offence of murder by Sessions Judge, Jind and was convicted under Section 302 read with Section 34, Indian Penal Code and sentenced to undergo life imprisonment along with a fine of Rs. 100/ and in default of payment of fine, further R.I. for one month. Criminal Appeal No. 504DB filed against the aforesaid conviction and sentence, was dismissed by this Court on 12.8.1985. Special leave petition preferred by the petitioner too was dismissed by the Supreme Court. Petitioner then filed Cr. Misc. No. 11459M of 1993 and on 25.11.1993, this Court directed the respondents to treat the petition as representation and dispose of the same by passing a speaking order. Further, according to the petitioner, his case was required to be considered decided by passing a speaking order within a period of three months, but the same has been rejected by the Authorities on the ground that the petitioner is required to undergo 14 years'' actual sentence and 20 years'' sentence including remissions as provided under para 2(a) of instructions dated 19.11.1991.

Notice of the petition was given to the respondents who have filed reply. In the reply, it has been stated that case of the petitioner falls under para 2(a) of the 1991 instructions and, therefore, his case would be considered only after completion of 14 years of actual sentence and 20 years sentence including remissions.

After bearing learned counsel for the parties, I am of the view that the petition deserves to succeed. The matter regarding premature release of a life convict has been considered by the Government and in supersession of all previous instructions, instructions dated 19.11.1991 are in force. Para 2(a) of the said instructions provides as follows :

"(a) Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime, such as murder with wrongful confinement, for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D. Act, 1987, murder with Untouchability (Offences) Act, 1955, murder in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant woman or murder after abduction or kidnapping, murder on professional/hired basis, murder exhibiting brutality such as cutting the body into pieces or burning, dragging the body as evident from judgment of sentence, persistent bad conduct in the prisons and those who cannot for some definite reasons be prematurely released without danger to public safety or convicts who have been imprisoned for life under Section 120B of IPC or life convicts who have been awarded life imprisonment a second time under N.D.P.S. Act or life convicts who have been imprisoned for life second time under any offence." Their case may be considered after completion of 14 years actual sentence including undertrial period and after earning at least 6 years remission.

The case of the petitioners, to my mind, does not fall in para 2(a) of 1991 instructions because as per the prosecution story recorded in the judgment of conviction/sentence, the petitioner along with two other persons killed deceased, Amar Singh, with jaili and lathies. The prosecution story of the case is that on 20.7.1983 when Amar Singh, deceased was going to look after his fields and had reached Bus Adda Dhamtan Sahib, Kapura, accused, met him who was under the influence of liquor. There was an altercation between them, but certain people separated them. Kapura told Amar Singh that he was allowing him on that day, and further told that since he (Amar Singh) always insulted him, he would teach him a lesson for this at some other time. It is further stated that Amar Singh, deceased and his nephew, Ram Dia, went to the fields and slept there and when at about 4.00 a.m., he was sitting on a cot, enjoying Hukka while Ram Diya had gone to answer the call of nature, Kapura, accused, armed with Jaili, Shishpal @ Pala armed with a Gandasi and Satbir @ Bhira armed with a Lathi came there and then Kapura, accused, told Amar Singh, deceased, that they would not allow him to escape on that day as he always insulted them, whereafter Bhira accused gave a Lathi blow on his head, while Kapura gave a blow on his head. During this period when Amar Singh, deceased, was laying on the cot, Shishpal accused, gave him a Gandasi blow. It is a case of murder and not of such a kind as described in para 2(a) of 1991 instructions. In para 10 of the petition, some of the instances, wherein such like cases, of the convicts therein, were considered under para 2(b) of 1991 instructions. Accordingly, I am of the view that the case of the petitioner does not fall in any of the cases mentioned in para 2(a) of 1991 instructions and his case deserves to be considered in view of para 2(b) of 1991 instructions.

Consequently, this petition shall stand allowed. The respondents are directed to consider the case of the petitioner for premature release, in the light of the aforesaid observations, within two months from the date of receipt of this order.