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:- 2 Conviction of ap- pellant No. 1 Bhagatram Ton- don Sentenced to u/s Section 302 of IPC R.I. for Life Imprisonment (on two 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- pellant No. 2 Ramsahay Ton- don Sentenced to u/s Section 302/109 of IPC R.I. for Life Imprisonment with fine of 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 3 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 OfÏcer 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. 4 (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 5 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 6 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 7 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 8 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 afÏrm 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 9 deceased 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 10 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 11 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 12 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 13 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 14 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