Chattisgarh High Court
Bhagatram Tondon vs State Of Chhattisgarh on 2 April, 2025
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2025:CGHC:15422-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1573 of 2024
1 - Bhagatram Tondon S/o Ramsahay Tondon Aged About 44 Years R/o Pu-
rani Basti, Achholi, Police Station - Urla, Raipur, District - Raipur, Chhattis-
garh.
2 - Ramsahay Tondon S/o Late Mangalram Tondon, Aged About 83 Years R/o
Purani Basti, Achholi, Police Station - Urla, Raipur, District - Raipur, Chhattis-
garh.
... Appellant(s)
versus
1 - State Of Chhattisgarh Through Sho, Police Station - Urla, Raipur, District -
Raipur, Chhattisgarh. ---- Respondent
----------------------------------------------------------------------------------------------
For Appellant : Mr. Mateen Siddiqui, Advocate along with
Mr. Ghanshyam Kashyap, Advocate
For Respondent/State : Mr. Shashank Thakur, Dy. A.A.
———————————————————————————————-
Hon’ble Shri Ramesh Sinha, Chief Justice and
Hon’ble Shri Arvind Kumar Verma, Judge
Per Arvind Kumar Verma, Judge
02.04.2025
1. This criminal appeal preferred under Section 415(2) of Bhartiya
Nagrik Suraksha Sanhita 2023 is directed against the impugned
judgment of conviction and order of sentence dated 27.07.2024
passed by the learned Additional Sessions Judge, Raipur in
Sessions Trial No. 395/2021 whereby the appellants have been
convicted and sentenced as follows:-
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Conviction of ap- Sentenced to
pellant No. 1
Bhagatram Ton-
don
u/s Section 302 R.I. for Life Imprisonment (on two
of IPC counts) with fine of Rs. 500/- Rs.
500/- in default of payment of fine, ad-
ditional R.I. for 3-3 months.
Conviction of ap- Sentenced to pellant No. 2 Ramsahay Ton- don u/s Section R.I. for Life Imprisonment with fine of 302/109 of IPC Rs. 500/- in default of payment of fine, additional R.I. for 3 months.
2. Case of the prosecution, in brief, is that on 06.03.2021 at about
08:00 AM Fatte Chand Jangde (village kotwar) (PW-1) has given
oral information in the police Urla, District Raipur, when he was
returning from his field he saw that, in front of Badi of appellant of
appellant No. 1, few labours were digging a pit and which was
being objected by the appellant No. 2 and called his son i.e.
appellant No. 1. It is also informed that, at that time deceased
Sunita Tondon came there and she said that, the pit is being
digged at her instance and she is constructing septic tank over
there. Upon hearing the same, the appellant No. 2 asked the
appellant No. 1 to assault her, he will take care about the
consequences of it and thereafter, appellant No. 1 picked up a
spade which was lying there and he assaulted on the head of the
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deceased Sunita. Thereafter, mother of the deceased Sunita,
namely Kamla Bai Gendre came there and she too was assaulted
by the appellant No. 1 and thereby, appellant No. 1 committed
murder of Sunita and Kamla Bai Gendre. On the report of the
applicant, Dehati Merg Information was registered by Urla Police
Station (Exp- 2 & 3), and the Police has registered First
Information Report as Crime No. 75/2021 under Section 302 of
IPC. Thereafter, Investigation Officer left for scene of occurrence
and after summoning the witnesses (Ex. P-17 & 18), inquest report
was prepared (Ex. P-35). During the investigation, Spot map was
prepared vide Ex.P-05, memorandum statement of the appellant
No. 1 was recorded, and thereafter spade and blood stained
clothes of the appellant No. 1 was recovered, 161 and 164 of
Cr.P.C. statements were recorded, articles were sent for FSL.
3. Dead body of the deceased Sunita was sent for autopsy to Dr.
Bhimrao Ambedkar Hospital, Raipur vide Ex.P-28. Dr. Utkarsh
Tripathi (PW-14) conducted autopsy vide Ex.P-34 and found
following injuries :-
(i) Lacerated wound of size 5cm x 1 cm x bone deep
extending over left parietal region antero-posteriorly
present 12 cm above left ear, with underlying open
displaced fracture of left parietal region of cranium,
margins contused.
(ii) Lacerated wound of size 4cm x 1 cm x bone deep
extending over left temporal region antero-posteriorly
present 4 cm above left ear, with underlying open
displaced fracture of left temporal region of cranium
margins contused.
(iii) Lacerated would of size 5cm x 2 cm x bone deep
extending over left temporal region antero posteriorly
present 1 cm behind left ear, with underlying open
displaced fracture of left frontal region of cranium,
margins contused.
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(iv) Lacerated wound of 5 cm x 1.5 cm x bone deep
present vertically just lateral to left eye, with underlying
open displace fracture of zygomatic bone, margins
contused.
(v) Lacerated would of 3cm x 1cm present horizontally at
chin 3cm below left angle of mouth, margins contused.
(vi) Patterned abrasion wound of 2 cm x 0.5cm present
horizontally in form of 3 beads, 1 cm lateral to left angle
of mouth of dark reddish colour.
(vii) Lacerated would of 1.5 cm x 0.5 cm x bone deep
present 1 cm lateral to injury No. 6 margins contused.
All the injuries were ante-mortem in nature
caused by sharp and hard object. It has been
opined by the Doctor that the cause of death due
to Craniocerebral Injury and the death was
homicidal in nature.
4. Dead body of the deceased Kamla Bai was sent for autopsy to Dr.
Bhimrao Ambedkar Hospital, Raipur vide Ex.P-29. Dr. Utkarsh
Tripathi (PW-14) conducted autopsy vide Ex.P-33 and found
following injuries :-
(i) Lacerated wound of size 5cm x 2cm gaping x
bone deep extending over right frontal and parietal region
antero-posteriorly and obliquely present 10 cm above
right eyebrow, with underlying open displaced fracture of
right frontal region of cranium, margins contused.
(ii) Lacerated wound of size 14 cm x 11 cm x brain
deep extending over left frontal, parietal and temporal
region present 6cm above left eyebrow, with underlying
commuted fracture of complete skull vault, with brain
lacerated at multiple sites and pouting out from wound,
tearing meninges, margins contused.
(iii) Lacerated wound of 3 cm x 1 cm x bone deep present
horizontally along right eyebrow, margins contused.
All the injuries were ante-mortem in nature
caused by sharp and hard object. It has been
opined by the Doctor that the cause of death due
to Craniocerebral Injury and the death was
homicidal in nature.
5. After investigation, it was found that Sunita and Kamla Bai died on
account of injuries sustained on parietal region and temporal
region by the accused/appellant No. 1 Bhagatram. The
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accused/appellants were arrested for offence under Section 302 of
the IPC and arrest/court surrender memo was prepared vide Ex.P-
20. Thereafter, charge-sheet was filed before the learned JMFC,
Raipur (C.G.) for hearing and disposal in accordance with law.
6. In order to bring home the offence, the prosecution examined as
many as 15 witnesses and exhibited 41 documents. The accused
has not examined witness in his defence.
7. The trial Court upon appreciation of oral and documentary
evidence on record and considering that it is the appellants No. 1
who have committed the murder of his younger brother’s wife and
mother and the appellant No. 1 was instigated by the appellant No.
2 Ram Sahay to cause the death, convicted and sentenced them
under Section 302 of the IPC, against which the instant appeal
under Section 415(2) has been preferred.
8. Learned counsel for the appellant vehemently argued that
deceased Sunita was the aggressor as at her instance the labours
were digging the pit in front of gate of the badi of the appellants
and if the tank would have been constructed, it would have
obstructed the way of the appellants and therefore under the given
circumstances, incident has taken place in spur of moment. It is
submitted that septic tank was being constructed and for obvious
reasons, the appellants were objecting to it, but the deceased as
adamant in constructing the tank, in front of badi of the appellants
and this action of the deceased has provoked the appellant,
therefore in order to protect their property, the incident took place
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and thus, no offence under Section 302 is made out and same will
fall in exception carved out under Section 300 of IPC.
9. Learned counsel for the appellant further submits that even day
prior to the incident, JCB was called by the deceased in order to
dig the pit, and that too was objected by the appellants. The entire
series of the act goes to show that, the deceased was continously
provoking the appellants by her conduct and ultimately, the mishap
has taken place. There was no premeditation and even the weapon
allegedly used i.e. spade, does not belong to the appellants and
same was lying there on the spot, because the digging work was in
progress and there are as many as 4 eye witnesses, but except for
PW-1 Fatte Chand, no other eye witness says that, the appellant
No. 2 has instigated the appellant No. 1 to commit murder of the
deceased Sunita, the accused was not directly involved in
causing the incident but rather he himself is the aggrieved party.
Evidence adduced on behalf of the prosecution is suspicious in
nature and same is not safe for placing reliance that too for
conviction of the appellants for commission of heinous offence of
murder, therefore, the appellant is entitled for benefit of doubt.
10. In support of his contention learned counsel for the appellant
referred to a decision of the hon’ble Supreme Court in the case of
Ranganayaki Vs. State by Inspector of Police reported in
(2004) 12 SCC 521.
11. On the other hand, learned State Counsel supports the impugned
judgment and submits that the deceased Sunita Tandon was
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getting a pit dug by the labourers and accused Ramsahay was
objecting from digging the pit to the sunita and when she did not
listen, the appellant No. 2 Ramsahay told to his son Bhagatram
Todon to assault her and he will take care about the
consequences. On this accused Bhagatram hit deceased Sunita
on the head with a spade, due to which she fell down there. At the
same time, deceased’s mother Kamala came to save her, then
accused Bhagat Ram Tandon hit her also with a spade, due to
which she also fell near the pit and died on spot.
12. Learned State Counsel submits that there are four eye witnesses,
Fatte Chand Jangde (PW-1), Priya Tondon (PW-2), Sheetal
Kumar Chaturvedi (PW-5), Shatrughan Gaikward,(PW-6) who
stated against appellants and support of the prosecution case.
Moreover it is a pure and simple case of committing murder of two
persons by the appellant No. 1 which has been established beyond
reasonable doubt by the prosecution. He would thus submit that
the case of the appellant would not fall under grave and sudden
provocation or for that matter sustained provocation under
Exception 1 to Section 300 of IPC and the Trial Court has rightly
convicted the appellant for the offence under Section 302 of the
IPC and therefore, the appeal deserves to be dismissed.
13. We have heard learned counsel for the parties and considered their
rival submissions made herein-above and also went through the
original records of the trial Court with utmost circumspection and
carefully as well. In order to appreciate the arguments advanced on
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behalf of the parties, we have to examine the evidence adduced on
behalf of the prosecution.
So far as conviction of the appellant No. 1 Bhagatram
Tondon for the offence under Section 302 of IPC is
concerned.
14. The first question for consideration would be, whether the trial
Court was justified in holding that death of deceased Sunita
Tandon and Kamla Bai was homicidal in nature ?
15. The trial Court, relying upon the statement of Dr. Utkarsh Tripathi
(PW-14), who has conducted postmortem of the deceased- Kamla
Bai and Sunita Tandon vide Ex.P-33 and Ex.P-34, clearly came to
the conclusion that the death of deceased- Sunita and Kamla were
homicidal in nature due to injury sustained by them. The said
finding recorded by the trial Court is a finding of fact based on
evidence available on record, which is neither perverse nor
contrary to record. Even otherwise, it has not been seriously
disputed by the learned counsel for the appellant. We hereby affirm
the said finding.
16. The next question for consideration would be, whether the trial
Court has rightly held that the appellant No. 1 is author of the crime
by relying upon the following circumstances:-
(i) Homicidal death was proved by the prosecution as per
postmortem report (Ex.P-33 and 34) of Dr. Utkarsh
Tripathi (PW-14) who conducted autopsy.
(ii) As per the case of the prosecution, the fact of death of
9deceased Sunita and Kamla Bai was within the knowledge
of the appellant No. 1, however, there was no any
explanation given by the appellant No. 1 in his statement
recorded under Section 313 of the CrPC. Thus, onus of
proof was on the appellant No.1 to explain such
circumstance but he failed to explain the same.
17. In the present case, homicidal death as a result of injury on the
Parietal region and temporal region of the deceased Sunita and
Kamla Bai has not been substantially disputed on behalf of the
appellant. On the other hand, it is also established by the evidence
of Fatte Chand Jangde (PW-1), Priya Tondon (PW-2), Sheetal
Kumar Chaturvedi (PW-5), Shatrughan Gaikward,(PW-6), Dr.
Utkarsh Tripathi (PW-14) and autopsy report (Ex.P-33 & 34) that
the death of deceased Sunita and Kamla Bai were homicidal in
nature.
18. As regards complicity of the appellant in crime in question,
conviction of the appellant is substantially based on the evidence of
Fatte Chand Jangde (PW-1), Priya Tondon (PW-2), Sheetal
Kumar Chaturvedi (PW-5), Shatrughan Gaikward,(PW-6), and Dr.
Utkarsh Tripathi (PW-14).
19. Fatte Chand Jangde (PW-1) has stated in his evidence who is eye
witness and who is the village kotwar that on 06.03.2021 at around
08:00 pm, he was returning from his gram field and when he
reached the house of the accused, he saw that the accused-
appellants were standing in their Badi and the deceased Sunita
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Tandon was getting a pit dug by the labouers. Accused Ramsahay
stopped deceased Sunita from digging the pit and when she did
not listen, he said to his son accused Bhagatram “Beat her,
whatever happens will be seen, I will save you”. On this accused
Bhagatram hit deceased Sunita on the head with a spade, due to
which she fell down there, At the same time, deceased’s mother
Kamala came to save her, then accused Bhagat Ram Tandon hit
her also with a spade, due to which she also fell near the pit. After
seeing the incident, he has given oral information in the Police
Station.
20. Priya Tondon (PW-2) has stated in his evidence who is eye witness
and who is daughter of deceased that on 05.03.2021 at around 7-
8:00 am, her mother (Sunita) had called a JCB machine to dig the
pit, but the accused and their family members created a ruckus
and the pit was not dug. The next day morning she was getting
ready to go to school and her mother called labourers to dig the pit.
As soon as the labourers started digging the pit, the accused and
their family members came and started arguing and stopped them
from digging the pit. At the same time, accused Ramsahay told
accused Bhagat Tandon to kill her, whatever happens will be seen.
After that accused Bhagat Tandon hit her mother on the head with
a spade kept nearby, due to which she fell unconscious, after that,
when nani (Kamla Bai) came to intervene, she was also hit on the
head and injured. Seeing above incident, she and her three
siblings came there to intervene, then the accused and their family
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members surrounded them too and accused Bhagat Tandon three
her into the pit. Somehow, they ran and reached the road, when a
police patrolling vehicle was coming, they stopped them and
informed them about the incident, then the police came to the spot.
21. Sheetal Kumar Chaturvedi (PW-5), Shatrughan Gaikward,(PW-6)
who are the eye witnesses of the case and who are the labourers
and were present from the place of incident, have made similar
statement.
22. Dr. Utkarsh Tripathi (PW-14) conducted autopsy vide Ex.P-33 and
Ex.P-34 and found above stated injuries on the body of the
deceased and opined that cause of death was due to
Craniocerebral Injury and as a result of hard and blunt edge force
trauma and the death was homicidal in nature.
23. Now, the question is, whether the prosecution has discharged its
initial or general burden or primary duty of proving the guilt of the
accused/appellant No. 1 beyond reasonable doubt?
24. In this regard, the findings of the trial Court observed in the
operative part of the judgment that it is proved that the deceased
Sunita and Kamla died due to the injury caused by Bhagat Ram
Tandon with a spade, which is of homicidal nature. Thus it is
proved that the death of the deceased was caused by the accused
Bhagat Ram Tandon and that the accused Ramsahay instigated
him to cause death. The death of the deceased by the accused
does not fall under any of the exceptions 1 to 5 of Section 300 of
IPC. Therefore, it is proved that the accused Bhagat Ram Tandon
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injured the deceased by hitting them with a spade with the intention
of causing their death, regarding which he knew that his said act
would result into the death of the deceased. Thus, the prosecution
has succeeded in proving that on the date of the incident, the
accused Bhagat Ram Tandon killed the deceased by hitting them
with a spade with the intention of killing them
25. A careful perusal of the aforesaid findings recorded by the trial
Court would show that the prosecution has established that,
1. death of deceased Sunita and Kamla Bai was homicidal in
nature;
2. It is the appellant No. 1 Bhagatram who has murdered sunita
and Kamla bai by hitting on their parietal region and temporal
region with a spade.
26. Considering the statements of the prosecution witnesses, the
finding recorded by the trial Court in operative part of its judgment,
the fact that the appellant No. 1 Bhagatram Tondon has not offered
any explanation under Section 313 of the CrPC and considering
the statement of Fatte Chand Jangde (PW-1), Priya Tondon (PW-
2), Sheetal Kumar Chaturvedi (PW-5), Shatrughan Gaikward,
(PW-6), and Dr. Utkarsh Tripathi (PW-14) who have clearly stated
that Sunita and Kamla bai were killed by appellant No. 1
Bhagatram Tondon, we are of the considered opinion that the
prosecution has proved its case beyond reasonable doubt and the
trial Court has rightly convicted the appellant No. 1 Bhagatram
Tondon for offence under Section 302 of the IPC. We do not find
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any illegality or irregularity in the findings recorded by the trial
Court. Accordingly, the criminal appeal so far as appellant No. 1
Bhagatram Tondon is concerned, is hereby dismissed. It is
stated at the Bar that the appellant No. 1 is in jail, he shall serve
out the sentence as ordered by the learned trial Court.
So far as conviction of the appellant No. 2 Ramsahay
Tondon for the offence under Section 302/109 is concerned.
27. So far as conviction of the appellant No. 2 Ramsahay Tandon for the
offence under Section 302/109 for instigation of appellant No. 1 is
concerned, abatement has been defined under Section 107 of IPC. For
ready reference, the Section 107 of IPC is reproduced below:-
“Section 107. A person abets the doing of a thing, who –
First. – Instigates any person to do that thing; or
Secondly – Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an
act or illegal omission takes places in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly.- Intentionally aids, by any act or illegal omission,
the doing of that thing.
Explanation 1. – A person who, by willful
misrepresentation, or by willful concealment of a material
fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.
Explanation 2.- Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the
doing of that act.”
28. If we see the definition of abetement, it clearly stipulates that, firstly,
there has to be an instigation by a person to do a thing; secondly,
the person must engage himself with one or more than one person
conspiring to do something and, thirdly, there should be an
intentional aid by the said person or an illegal omission on the part
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of the said person for doing of that thing.
29. On perusing the statement of Fatte Chand Jangde (PW-1), who
have stated in his cross examination of Paragraph 12 that it is
correct to say that the statement “Beat her, whatever happens will
be seen, it will save you” is not mentioned in the Dehati Nalsi and
Dehati Merg Intimation i.e. (Ex.P-1 and Ex.P-2), in the police
statement I.e Ex. D-1 and in the 164 statement. Also on perusing
the statement of Mukesh Tiwari (PW-9), he stated in paragraph 17,
he denied the statement that “Beat her, whatever happens will be
seen, it will save you”
30. From the evidence which has come before the Court below,
nowhere does it disclose that the appellant on the date of incident,
had instigated the appellant No. 1 or had intentionally aided the
appellant No. 1. There was no occasion or act on the part of the
appellant No. 2 or the behavior of the appellant No. 2 by which it
could be said that the appellant No. 2 had instigated or for that
matter intentionally aided the appellant No. 1 to the extent to which
the appellant No. 1 was pushed into a position of having no other
option but to take a decision of ending their life by hitting the
deceased with a spade.
31. No evidence has come on record to show that the appellant No. 2
has instigated the appellant No. 1 to commit murder of the
deceased.
32. Looking to the role played by the appellant No. 2 as he has not
instigated the appellant No. 1 to commit murder and he has not
15
made any assault or participated in the said crime and further
considering the age of the appellant at present is 83 years old, we
are of the considered view that the prosecution has not proved its
case beyond reasonable shadow of doubt against the appellant
No. 2 for the offence punishable under Section 302/109 of IPC.
Thus, the appellant No. 2 is acquitted of the offence punishable
under Section 302/109. He is in jail. He shall be set at liberty
forthwith if not required in any other criminal case.
33. In the result, as regards criminal appeal in respect of the appellant
No. 1 Bhagatram Tondon is dismissed and as regards criminal
appeal in respect of the appellant No. 2 Ramsahay Tondon is
allowed.
34. Accordingly, the present Criminal Appeal is partly allowed.
35. Let a copy of this judgment and the original record be transmitted
to the trial court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(Arvind Kumar Verma) (Ramesh Sinha)
Judge Chief Justice
Jyoti