Partly allowed

Sandip Shamrao Satpute Adn Ors. v. the State of Maharashtra and Ors.

Bombay HC21 Feb 2019APEAL/544/2010

Case brief

AI extract

What is this about?

In a murder appeal, the High Court held the trial court's conviction under Section 302 IPC unsustainable, setting it aside for culpable homicide not amounting to murder under Section 304(2) IPC. The court applied Exception 4, stating the assault lacked premeditation. Sentences were ordered to run consecutively.

What did the court decide?

Conviction under Section 302 IPC set aside; convicted under Section 304(2) IPC with 10 years RI; section 326 conviction maintained with sentence reduced to 8 years; sentences ordered to run consecutiv

Sandip Shamrao Satpute Adn Ors. Vs the State of… — Murder and Culpable Homicide | Bombay HC (2019)

apeal544.doc

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.544 OF 2010

¶5

Sandip Shamrao Satpute & Ors....Appellants
vs.
The State of Maharashtra
and others...Respondents

¶6

Mr.S.A.Masal for the Appellant
Ms P.P.Shinde, APP for the respondent-State

¶7

CORAM : A.S.OKA AND A.S.GADKARI, JJ.
DATE ON WHICH JUDGMENT IS RESERVED: FEBRUARY 1, 2019
DATE ON WHICH JUDGMENT IS PRONOUNCED:FEBRUARY 21,2019

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JUDGMENT: (PER A.S.OKA,J.)

¶9

1Being aggrieved by the Judgment and Order dated
29th June 2010 passed by the learned Sessions Judge,
Satara in Sessions Case No.172 of 2004, the
appellants-accused have preferred this Appeal. The
appellants have been convicted for the offences
punishable under section 302 read with section 34 of
the Indian Penal Code (for short “IPC”) for
committing murder of one Subhash Dhondiram Satpute
(for short “the deceased”). They have been also
convicted for the offence punishable under section
324 read with section 34 of the IPC for voluntarily
causing grievous hurt to Bhairavnath Satpute
(P.W.No.1) and Chandrabhaga Satpute (P.W.No.9)
(injured witnesses). For the first offence under
section 302 read with section 34 of the IPC, they
have been sentenced to undergo life imprisonment and
for the second offence, they have been sentenced to

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undergo R.I for 10 years.

¶13

2The prosecution case in brief is that the
deceased and the P.W.No.1-Bhairavnath were real
brothers. The case of the prosecution is that
Chandrabhaga (P.W.No.9) who also sustained injuries
is their mother. It appears that the appellants-
accused are related to the victims of the offence.
Both of them were having landed property in village
Dhankavadi (Shenwadi), Taluka Khatav, District
Satara. The said property is known as Malvi The
appellants on the one hand and the victims and their
family on the other hand were having disputes and
they were on cross terms. Three to four years prior
to the date of incident, the appellants-accused were
prosecuted at the instance of the victims for the
offence for setting ablaze the roof of their house.
The case ended in acquittal. It is an admitted
position that the appellants and the family of the
victims were having a dispute over the land known as
Malvi.

¶14

3On 7th August 2004, P.W.No.9 Chandrabhaga was
working in the field known as Malvi. P.W.No.1
Bhairavnath was grazing cattle and the deceased was
looking after she-goats. At about 4.00 p.m., the
accused No.1 Sandeep and the accused No.3 Namdeo
along with the accused No.2 Ankush (present
appellants) entered the said field. While the
accused Nos.1 and 3 were holding axes in their
hands, the accused No.2 was holding a stick. It is

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the prosecution case that in the morning of the same
day, there was a quarrel between the accused No.1
and P.W.No.1-Bhairavnath. It was alleged that the
accused had broken the pipeline in the field. The
case of the prosecution is that after the accused
arrived at the field at 4.00 p.m on 7th August 2004,
the accused No.1 assaulted P.W.No.1-Bhairavnath on
his head by an axe in his hand and the accused No.3
assaulted the P.W.No.1- Bhairavnath by using buttock
side of the axe on his both legs and below the
waist. At the same time, accused No.2 Ankush
assaulted P.W.No.1-Bhairavnath with stick on his
hands, head and back. At that time when P.W.NO.9-
Chandrabhaga tried to intervene, the accused No.1
gave a blow of axe on her head. The Accused No.3
assaulted P.W.No.9-Chandrabhaga on her head with the
handle of the axe. After noticing the scuffle, the
deceased Subhash rushed to the spot to rescue his
mother and brother. The allegation of the
prosecution is that the accused No.1 gave a blow of
axe on the head of the deceased Subhash as well as
on his right eyebrow. The Accused No.3 assaulted the
deceased by axe on right leg and right arm while the
accused No.2 gave blows of sticks on the person of
the deceased. The deceased Subhash fell down on the
ground while shouting that he was dying.

¶18

4P.W.No.9-Chandrabhaga went to the village and
informed about the incident. P.W.No.3-Dinkar Satpute
rushed to the field along with one Aadhik Waghmare.
Some villagers gathered there and thereafter,

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Chandrabhaga and Bhairavnath were taken to the
Cottage Hospital at Karad by a jeep. P.W.No.3
Dinkar filed a report at about 10.30 a.m to the
police station at Aundh about the incident on the
basis of which FIR was registered. After completion
of investigation, charge sheet was filed. The
prosecution examined 12 witnesses including
P.W.No.1-Bhairavnath and P.W.No.9-Chandrabhaga who
are injured witnesses.

¶21

5The learned counsel for the appellants have
taken us through the notes of evidence of material
prosecution witnesses. He submitted that the
prosecution has failed to bring home the guilt of
the appellants. Inviting our attention to the
evidence of prosecution witnesses and injured
witnesses, he submitted that in any event, there was
never any intention on the part of the appellants to
kill the deceased Subhash. He submitted that the
assault on the deceased Subhash is without any
premeditation in as much as on the background of
history of quarrel between the parties, at the spur
of moment, the appellants seem to have attacked the
deceased Subhash. He would, therefore, submit that
Exception 4 to section 300 of the IPC is attracted
and therefore, at highest, the offence under the
second part of section 304 of IPC is made out. He
would urge that as the appellants have already
undergone sentence for 17 to 19 years (inclusive of
all remissions), substantive sentence under part-II
of section 304 and section 326 be ordered to be run

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concurrently. He relied upon various decisions.
The learned APP supported the impugned Judgment and
Order and contended that the none of the exceptions
under section 300 of IPC are attracted.

¶25

6We have carefully perused the evidence adduced
by the prosecution. There is no dispute that the
appellants-accused and three victims of the offence
were closely related. The Accused No.1 is the nephew
of P.W.No.1-Bhairavnath. The Accused Nos.2 and 3 are
his cousins. It is an admitted position that there
was an ongoing dispute between the appellants and
the family members of the victims regarding the
fields held by the parties in the same village.
P.W.No.1 had lodged a complaint against the
appellants-accused four years prior to the incident
which ended in acquittal. P.W.No.1-Bhairavnath in
paragraph 2 of his deposition has stated thus:

¶26

“2On 7/8/2004 the said accused had come
in my field at about 16.00 hours. The
accused no.1 Sandip was having axe in his
hand. The accused No.3 Namdev was having
custody of weapon axe in his hand. The
accused No.2 Ankush was having a stick in
his possession. Thereafter, the said
accused No.1 Sandip had assaulted me on my
head by axe. There was injury by that
assault where said axe was hit. The
accused No.3 Namdev had assaulted me with
the said axe on both the legs, by back
side of the axe. The accused No.2 Ankush
Satpute had assaulted me by stick on my
back, hand and also on my legs he had
beaten me. The said accused No.2 Ankush
had also beaten me by the said stick on my

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head. My mother had come at that time in
the field and had asked that the accused
not to beat me. The accused No.1 Sandip
had also beaten on the head of my mother
and therefore there was bleeding injury on
the head of my mother. The accused No.2
Ankush Satpute had assaulted by stick on
the head, back and on the hands to my
mother. With the stick of axe the accused
No.3 Namdev had assaulted to my mother on
her shoulder, on head and on legs.
Thereafter my brother Subhash Satpute came
in the said field. The said Subhash
Satpute had requested accused not to beat
me and my mother to the accused. The said
accused No.1 Sandeep Satpute had assaulted
by sharp aged axe on the head of Subhash
Satpute and also on the eye leads. The
said accused Namdev Satpute had assaulted
to Subhash Dhondiram Satpute by axe on his
head, right leg. The accused No.2 Ankush
had assaulted by stick on the head of
Subhash Satpute and on back and on
shoulders and on legs. The said Subhash
had said “Melo Melo” and he has falled
down and died on the spot.”

¶30

(emphasis added)

¶31

7The version of P.W.No.9-Chandrabhaga is the
same. Perusal of cross examination of both the
witnesses shows that the said version is hardly
shaken in the cross examination.

¶32

8The evidence of P.W.No.10-Dr.Arjun who
medically examined both the witnesses also supports
the prosecution case.He examined the P.W.No.1-
Bhairavnath when he was brought to the hospital. He
noted 9 injuries on his person. He opined that CLW
on right parietal area of head having size of 6 cm X

¶33

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4 cm X 1 cm which was scalp deep having sharp
edges is possible by an axe and rest of the injuries
are possible by a stick and handle of an axe as well
as buttock of an axe. The said witness examined
injured witness Chandrabhaga (P.W.No.9) and stated
that the first injury out of four injuries noticed
on her person viz; CLW on occiput area of the head
admeasuring 4 cm X 4 cm X 1 cm could be possible by
an axe. The witness admitted that both the injured
witnesses did not suffer any incise wound.

¶36

9The evidence of Dr.Sunder Sadamate who
conducted autopsy on the dead body of the deceased
Subhash also supports the prosecution case in as
much as he opined that the injuries on the person of
the deceased could be caused by the weapons of
assault as per the prosecution case. Moreover, there
is a discovery of an axe at the instance of the
accused No.1. Even at the instance of the accused
No.3, there was recovery of an axe. A stick was
seized from the scene of offence.

¶37

10The evidence of P.W.No.2 and P.W.No.9 is
consistent about the incident which is not shaken in
the cross examination. Both the witnesses have
suffered head injuries. As regards assault on the
deceased, we may note that the deceased Subhash came
to the field when the accused were assaulting the
two prosecution witnesses and there was an ongoing
fight. He tried to intervene. Perusal of the
evidence of P.W.No.2 and P.W.No.9 shows that there

¶38

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was prior enmity between the family of the injured
and deceased on one hand and the family of the
accused on the other hand. On 7th August 2004, the
present appellants came armed with weapons such as
axes and stick to the field of the injured
witnesses. They assaulted the first injured witness
Bhairavnath. At that time, the second injured
witness Chandrabhaga came to the spot of the
incident and even she was assaulted. Thereafter, the
deceased Subhash came and he tried to intervene.
On his entry, the appellants assaulted Subhash.
Thus, there was no premeditation on the part of the
appellants to kill the deceased Subhash. There was
absence of any intention to kill Subhash. The
deceased Subhash came to the field obviously after
he must have learnt about the assault by the
appellants on his brother and mother. The evidence
on record indicates that his appearance at the scene
of offence must have led to a sudden fight. Assault
on the deceased appears to be in the heat of
passion. Therefore, exception 4 of section 300 of
the IPC will be applicable to the facts of the case
and the offence committed by the appellants is of
culpable homicide not amounting to murder. It
will attract the second part of section 304.

¶41

11Now, the question is whether sentences for the
offence punishable under section 304 Part II and
section 326 should be ordered to run concurrently or
consecutively.The learned counsel for the appellants
relied upon the decision of this Court in the case

¶42

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of Hitesh Pravinchand Shah vs. State of Maharashtra
and another1. This was a case where the Court
imposed two life sentences which were to run
consecutively. Considering the fact that the accused
was already undergoing life imprisonment, the Court
held that the second sentence must run concurrently.
The learned counsel for the appellants relied upon
the decision of the Apex Court in the case of Mohd.
Akhtar Hussain Alias Ibrahim Ahbd Bhatti vs.
Assistant Collector of Customs (Prevention),
Ahmedabad2. The Apex Court noted that the basic rule
of thumb over the years has been the so-called
single transaction rule for concurrent sentences. If
a given transaction constitutes two offences under
two enactments, generally it is wrong to have
consecutive sentences.

¶45

12In the facts of the case, the appellants came
to the field of the injured witnesses. Two of them
were carrying axes and one was carrying stick. They
assaulted the first injured witness. When the
second injured witness entered the field, she also
suffered in the same fate. Subsequently, when the
deceased entered the field perhaps with a view to
save his brother and mother, he was assaulted by the
appellants and as a result of the injuries sustained
by him, he succumbed to death. Therefore, this is a
fit case where the sentences will have to be ordered
to run consecutively.

¶46

2 1988 DGLS (SC) 523 (SC)

¶47

1 2004 (1) Bom.C.R. (Cri.) 4

¶48

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13This is a fit case where for the offence
punishable under the second part of section 304,
sentence of 10 years will have to be imposed. As we
are imposing sentence of 10 years for this offence,
and as we are ordering consecutive running of
sentences, we propose to reduce the sentence for the
offence punishable under section 326 read with
section 34 of 8 years of R.I. We may note here that
the Nominal Roll signed by the Jail Superintendent
which are of January 2019 show that the appellant
No.1 has undergone sentence for 18 years, 2 months
and 13 days upto 31st December 2018 including
remissions. The Accused No.2 Ankush has undergone
sentence for 17 years, 8 months and 11 days which is
including remission till 31st December 2018 and the
accused No.3 was released on undergoing sentence for
19 years and 7 months including remissions.

¶51

14Hence, we dispose of the appeal by passing the
following order:

¶52

(I) Conviction and sentence of the appellants-
1)Sandip Shamrao Satpute, 2)Ankush Ramchandra
Satpute and 3)Namdeo Ramchandra Satpute for the
offence punishable under section 302 read with
section 34 of IPC is hereby set aside. They are
convicted for the offence punishable under second
part of section 304 read with section 34 of the IPC.
They are sentenced to suffer rigorous imprisonment
for 10 years and to pay fine of Rs.5000/- (Rupees
five thousand) each. In default, they shall suffer

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further R.I for two years each;

¶55

(II) The conviction of the appellants for the
offence punishable under section 326 read with
section 34 of the IPC is maintained. However,
substantive sentence of 10 years is brought down to
8 years. The order regarding fine is maintained.
(III)The direction under clause 3 of the operative
part of the Judgment is also maintained;

¶56

(IV) The sentences for the aforesaid two offences
shall run consecutively;

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(V) The appellants will be entitled to set off as
directed under the impugned Judgment and order;

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(VI) Appeal is partly allowed on above terms.

Sandip Shamrao Satpute Adn Ors. v. the State of Maharashtra and Ors.

Case brief

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Sandip Shamrao Satpute Adn Ors. v. the State of Maharashtra and Ors.

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