- (1.) HEARD learned Counsel for the petitioner and Mr. Janardhan Singh, learned Additional Government Advocate.
(2.) IN short, it may be stated that Raj Kumar Gupta, the petitioner of this case, was convicted under Section 302 I. P. C. for having killed his wife and was awarded death penalty by the Court of VI Additional Sessions Judge, Lucknow. However, in the Criminal Appeal No. 191/565 of 1988, this Court, while maintaining the conviction, converted the sentence of death penalty into imprisonment for life. The petitioner, as alleged, has completed 16 years 2 months imprisonment without remission and 20 years 10 months 15 days with remissions. These facts are not disputed by the State and in Para 7 of the counter-affidavit, Sri Anil Tyagi, Deputy Jailor, Model Jail, Lucknow has conceded that the petitioner has served more than 16 years in jail without remission. If remission of 5 years 10 months and 24 days is allowed and calculated accordingly, the petitioner would be deemed to have been in jail for about 22 years. As the petitioner became eligible to be released on probation, the Jail Authorities have issued Form 'a' on 28th April, 2003 for consideration of his premature release. The District Magistrate made an endorsement in favour of the petitioner and his case for premature release was also recommended by the Probation Board. However, his claim for release on probation under U. P. Prisoners' Release on Probation Act, 1938 has been rejected by the Government on the ground that the petitioner has been convicted and sentenced to imprisonment for life on the charge of killing his wife for dowry. We have carefully scruitinized the record including the judgment of the Sessions Court. There is no whisper of an allegation anywhere in the prosecution story or the judgment of the trial Court as well as of this Court in appeal that the petitioner was convicted on the charge of having killed his wife because she failed to arrange for dowry. In other words, it may clearly be mentioned that neither there was a charge of causing dowry death against the petitioner nor the latter had been convicted under Section 304-B I. P. C. or Sections 3/4 Prohibition of Dowry Act. It is surprising to note as to on what basis the Government had rejected the petitioner's prayer for release on an untenable and wholly irrelevant ground. The prosecution case against the petitioner was that he killed his wife as she was opposed to his habit of taking liquor and on the fateful day, she woke him up from his sleep with a view to enable him to go for work but having got infuriated, he poured kerosene oil on her and set on blaze. It is, thus, borne out from these facts and circumstances that the petitioner's petition for release on probation of good conduct has been turned down on a groundless reasoning.
(3.) IN these circumstances, we find it appropriate to set aside the impugned order dated 11th December, 2004, which is Annexure 1 enclosed with the counter-affidavit of the Government and refer the matter back to the Government for consideration of the petitioner's petition for release afresh. The authority, who had incorporated the ground of dowry, must be advised and warned not to take things in casual manner and put the Governmental functioning and performance to an embarrassing and awkward situation.;