Bombay High Court
Dattu @ Datta Bhika Tongare vs The State Of Maharashtra on 7 April, 2025
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
NISHA
2025:BHC-AS:16030-DB Digitally signed by NISHA
SANDEEP CHITNIS
SANDEEP Date: 2025.04.07
CHITNIS 18:02:12 +0530
1-appeal.798.2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.798 OF 2018
(APPEAL AGAINST CONVICTION)
Dattu @ Datta Bhika Tongare
C - 9491,
R/o, Janori, Taluka Dindore,
Dist. Nashik
Ramjinagar, Gangapur Canal, Ozar Shivar,
Taluka Niphad, Dist.: Nashik.
Presently lodged at NASHIK CENTRAL PRISON
NASHIK. ...Appellant
Versus
The State of Maharashtra ...Respondent
Mr. Kavin Bookseller i/b Mr. Rohan J. Dave for the Appellant
Mr. K. V. Saste, Addl. P.P. for the Respondent-State.
CORAM : REVATI MOHITE DERE &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 26th MARCH 2025
PRONOUNCED ON : 7th APRIL 2025
JUDGMENT (Per Revati Mohite Dere, J.) :
-
1. By this appeal, the appellant has assailed the judgment
and order dated 25th September 2014, passed by the learned
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Additional Sessions Judge, Niphad, in Sessions Case No.47 of 2012,
convicting and sentencing him, as under:-
- for the offence punishable under Section 302 of the Indian Penal
Code ('IPC') to suffer imprisonment for life and to pay a fine of
Rs.2,000/- in default, to suffer rigorous imprisonment for one year.
2. A few facts as are necessary to decide the aforesaid appeal
are set out hereinunder :-
The appellant was in a relationship with the deceased and
had introduced the deceased to PW1 - Balkrushna Chaudhary, as his
wife. It is the prosecution case that 15 days prior to the incident, the
appellant and the deceased alongwith two kids (kids from deceased's
first marriage) had come to PW1 - Balkrushna Chaudhary's house for
a job. According to PW1 - Balkrushna, one day prior to the incident,
the appellant took a sum of Rs.2,000/- from him and went to attend
the market at Ozar alongwith his wife and children; that on the next
day when PW1 went to his field at about 6:30 a.m. to start the pump
set and went to the shed where the appellant was residing, he found
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the deceased lying with a blanket on her body. On removing the
blanket PW1 noticed some blood, pursuant to which he reported the
same to Ozar Police Station. Pursuant thereto, PW1 - Balkrushna
lodged an FIR, which was marked as Exhibit - 15. The appellant was
arrested on 23rd May 2012.
During the course of investigation, the police recorded the
statement of witnesses, drew the panchanama and after investigation,
filed a charge-sheet against the appellant in the said case, in the
Court of the learned Judicial Magistrate First Class, Pimpalgaon (B),
Niphad, for the offence punishable under Section 302 of the IPC. As
the case was sessions triable, the case was committed to the Court of
Sessions.
The learned Additional Sessions Judge-2, Niphad, framed
charge (Exhibit - 7), as against the appellant for the offence
punishable under Section 302 of the IPC, to which the appellant
pleaded not guilty and claimed to be tried.
The prosecution in support of its case examined 8
witnesses. PW1 - Balkrushna Rangnath Chaudhary, the complainant,
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who had employed the appellant on his field; PW2 - Eknath Nana
Chaudhary, panch to the spot panchanama; PW3 - Lalita Dattu
Tongare (daughter of the accused and the deceased), aged about 6
years (aged about 4 years at the time of the incident). Her evidence
was not recorded and whatever little that was recorded, she said
nothing incriminating against the appellant; PW4 - Sindhubai
Somnath Sitan, mother of the deceased; PW5 - Manoj Bhagwan
Khairnar, the photographer; PW6 - Arjun Kacharu Mondhe,
brother-in-law of the accused (hostile); PW7 - Dr. Rekha Malhari
Sonawane, Medical Officer attached to Pimpalgaon Baswant Primary
Health Centre and, PW8 - Gulabrao Parashram Wagh, Police
Inspector attached to the Ozar Police Station.
The defence of the appellant was that of total denial and
false implication.
After recording the 313 statement of the appellant and after
hearing the learned counsel for the parties, the learned Additional
Sessions Judge, Niphad, was pleased to convict and sentence the
appellant as aforesaid in paragraph No.1 of this Judgment.
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3. Learned counsel for the appellant submitted that the
prosecution had not proved its case beyond reasonable doubt and as
such the appellant be acquitted of the offence, for which he was
convicted. He submitted that the circumstances on record were far
from sufficient to convict the appellant for the said offence. He
submitted that the appellant has primarily been convicted, having
regard to Section 106 of the Evidence Act i.e. as the appellant had not
explained the circumstances against him or discharged the burden cast
on him under Section 106 of the Evidence Act. He submitted that the
last seen evidence of PW1 cannot be termed as last seen having regard
to the evidence that has come on record. He further submitted that
apart from the said evidence, there is no other evidence to connect the
appellant with the alleged offence.
4. Learned Additional Public Prosecutor supported the
impugned judgment and order of conviction and sentence passed by
the trial Court and submitted that no interference was warranted in
the same.
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5. Perused the evidence and the relevant documents with the
assistance of the learned counsel appearing for the appellant and the
learned Additional Public Prosecutor for the respondent - State.
Admittedly, the prosecution case rests on circumstantial evidence. The
law with respect to circumstantial evidence is well settled.
6. In Sharad Birdhichand Sarda v/s State of Maharashtra 1
the Apex Court laid down the five golden principles (Panchsheel),
which govern a case based only on circumstantial evidence. Para 153 of
the said judgment is reproduced hereinunder:-
"153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal
distinction between 'may be proved' and "must be or should be
proved" as was held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra2 where the following observations were
made: [SCC para 19, p. 807 : SCC (Cri) p. 1047]
1 (1984) 4 SCC 116
2 (1973) 2 SCC 793
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Certainly, it is a primary principle that the accused must
be and not merely may be guilty before a court can convict
and the mental distance between 'may be' and 'must be' is long
and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused."
7. Keeping in mind the aforesaid, we now proceed to deal
with the circumstances adduced by the prosecution qua the appellant,
(i) The evidence of last seen;
(ii) The C.A report which shows that there was blood group of the
deceased on the appellant's shirt and lower part of the pant; and
(iii) The appellant had not given any plausible explanation under
Section 106 of the Evidence Act.
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8. The fact, that the deceased died a homicidal death is not in
dispute. The cause of death of the deceased as per the postmortem is
stated to be 'Death due to shock due to injury to multiple vital organs '.
The question that arises for consideration is, whether the appellant is
the author of the said injuries, keeping in mind the evidence adduced
by the prosecution against the appellant.
9. As far as the evidence of last seen is concerned, the
prosecution has relied on the evidence of PW1 - Balkrushna
Chaudhary. PW1 - Balkrushna in his evidence has deposed that 15
days prior to the incident, one couple i.e. the appellant and his wife
had come to his house with two small kids; that they requested him to
give them a job; that the male person was Dattu @ Datta Bhika
Tongare (appellant), a resident of near Gangapur canal; that he
confirmed the fact that the appellant's parents were staying at
Gangapur canal by going there; that he gave the couple a shed to
reside in his field and offered a sum of Rs.3,000/- per month as wages;
that a sum of Rs.2,000/- was given to the appellant as advance; that
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after 15 days the appellant took Rs.2000/- from him and went to
attend the market at Ozar alongwith his wife and children. PW1 -
Balkrushna has categorically in his examination-in-chief stated that he
did not know when the appellant or the family returned.
10. PW1 - Balkrushna has further in his evidence stated that
on the next day there was load shedding and hence he went to his field
at about 6:30 a.m. to start the pump set; that after starting the pump
set, he did not find anybody near the pump set, and hence, he called
out to the appellant; that as none responded, he went towards the shed
and saw somebody sleeping with a blanket over the body; that he lifted
the blanket and noticed some blood; that he informed the Ozar Police
Station of the said fact, pursuant to which, FIR (Exhibit - 15) came to
be registered at his behest.
11. In his cross-examination, it has come that after he
informed the police, some people gathered at the spot and that in his
presence the police enquired with the children present and recorded
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their statements. In PW1's cross-examination, there is an omission
with respect to the appellant taking a sum of Rs.1,000/- towards his
wages, one day prior to the incident, in the FIR. Similarly it is elicited
in the cross-examination of PW1 - Balkrushna, that he had not seen
the lady (deceased) going to the market at any time. PW1's evidence
does not categorically throw light as to whether the children were
present at the spot at the relevant time, inasmuch as, it is the
prosecution case that the children were present, when the incident
took place.
12. Considering the over all evidence as stated aforesaid of
PW1 - Balkrushna, the said evidence of 'last seen' evidence appears
shaky and doubtful, inasmuch as, PW1 - Balkrushna had stated in his
examination-in-chief that he had seen the appellant going to Ozar with
his wife and children on the previous day but had not seen when they
had returned. PW1 - Balkrushna found the dead body of the
appellant's wife on the next day in the morning at 6:30 a.m., on the
platform outside the shed situated in PW1's field, when he went to
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start the pump set. Accordingly, the said evidence being shaky,
implicit reliance cannot be placed on the same.
13. It appears that the learned Judge has essentially convicted
the appellant on the basis of the evidence of PW1 - Balkrushna, i.e. the
appellant was last seen with the deceased and taking into consideration
Section 106 of the Evidence Act. The law as to when Section 106 of
the Evidence Act can be relied upon/invoked, is well settled.
14. The Apex Court in the case of Nagendra Sah v/s State of
Bihar3, has in paras 22 and 23 observed as under:-
"22. Thus, Section 106 of the Evidence Act will apply to
those cases where the prosecution has succeeded in
establishing the facts from which a reasonable inference
can be drawn regarding the existence of certain other
facts which are within the special knowledge of the
accused. When the accused fails to offer proper
explanation about the existence of said other facts, the
court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if
the accused fails to offer a reasonable explanation in
discharge of burden placed on him by virtue of Section
106 of the Evidence Act, such a failure may provide an
3 (2021) 10 SCC 725
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additional link to the chain of circumstances. In a case
governed by circumstantial evidence, if the chain of
circumstances which is required to be established by
the prosecution is not established, the failure of the
accused to discharge the burden under Section 106 of
the Evidence Act is not relevant at all. When the chain
is not complete, falsity of the defence is no ground to
convict the accused."
15. One of the main circumstance relied upon by the trial
Court whilst convicting the appellant is, that the appellant failed to
give any plausible explanation for the death of his wife, inasmuch as,
the said facts, were within his knowledge.
16. We have in para 12 of the aforesaid judgment noted that
the prosecution evidence vis-a-vis last seen is shaky and doubtful,
inasmuch as, there is no evidence to show when the appellant and the
deceased returned from Ozar. Even otherwise, the prosecution cannot
absolve itself from proving the initial burden cast upon them i.e. of
proving its case beyond reasonable doubt against the appellant. Failure
to offer a reasonable explanation in discharge of the burden placed on
him by Section 106 of the Evidence Act, may be considered as an
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additional link to the chain of circumstances. When the prosecution
itself has failed to prove the circumstances and its case beyond
reasonable doubt qua the appellant, failure of the accused to discharge
his burden under Section 106 of the Evidence Act, will not be relevant.
17. It is pertinent to note, that it is the prosecution case that
the appellant was residing with the deceased and two children.
Admittedly, the statement of both the children, one aged about 4 years
and other below 4 years were recorded by the police during the course
of investigation, however, only one child stepped into the witness box
i.e. PW3 - Lalita. A perusal of the evidence of PW3 will reveal that
she was asked a few questions, however, as she started weeping, her
evidence was not recorded any further. Thus, the evidence of PW3
does not throw any light as to the manner in which the incident took
place i.e. alleged assault by the appellant on the deceased. The other
child aged below 4 years has not been examined by the prosecution.
The evidence of PW4 - Sindhubai (mother of the deceased) is of no
assistance to the prosecution. PW4 - Sindhubai's evidence also does
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not throw light on any possible motive for the appellant to cause the
death of her daughter. PW4 - Sindhubai's evidence only reveals that
her deceased daughter was not living with her husband and was staying
with them, with her children for 3 years; that there were relations
between the appellant and her deceased daughter; that one day, her
daughter and her children left the house, when she and other family
members had gone to another village to attend a wedding. Thus, no
motive has come forth through this witness.
18. The prosecution has also placed reliance on the C.A.
report (Exhibit - 35) i.e. the clothes of the accused having blood stains
of blood group 'B' i.e. of the deceased. Exhibit - 36 shows that the
blood group of the accused was 'O'. As noted in the C.A. report, the
blood stains found on the clothes of the accused which he had worn at
the time of assault, had blood stains which were found to be of blood
group 'B'. The appellant was arrested on 23 rd May 2012, and his
clothes were seized at the time of arrest.
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19. It is pertinent to note, that no evidence has been adduced
by the prosecution as to who collected the blood samples of the
deceased and when, since the blood group of the appellant is alleged to
be of 'O' blood group. Thus, the C.A. report i.e. Exhibit - 36, which
shows the blood group of the appellant as 'O', becomes doubtful.
20. Considering the aforesaid, the prosecution has failed to
prove the circumstances relied upon by them, as against the appellant,
beyond reasonable doubt. The chain of circumstances is far from
complete and does not, in all human probability, point to the guilt of
the appellant.
21. It is well settled that a false explanation or a false defence
can only be considered as an additional link to the chain of
circumstances so proved by the prosecution by adducing legal, cogent
and admissible evidence. It is well settled that falsity of defence or
failure to discharge the burden under Section 106 of the Evidence Act,
cannot take the place of proof of facts, which the prosecution has to
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establish, in order to succeed.
22. Considering the aforesaid, none of the circumstances can
be stated to have been proved by the prosecution beyond reasonable
doubt, nor do they form a chain, pointing to the complicity of the
appellant, which is consistent only with one hypothesis, which is the
guilt of the appellant.
23. Having regard to what is stated aforesaid, we pass the
following order:-
ORDER
i) The Appeal is allowed;
ii) The Judgment and Order dated 25th September 2014,
passed by the learned Additional Sessions Judge, Niphad, in Sessions
Case No.47 of 2012, convicting and sentencing the appellant, is
quashed and set aside;
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iii) The appellant is acquitted of the offence, with which he is
charged. The appellant is set at liberty forthwith, if not required in
any other case. Fine amount, if paid, be refunded to the appellant.
24. Appeal is allowed and accordingly disposed of.
All concerned to act on the authenticated copy of this
judgment.
DR. NEELA GOKHALE, J. REVATI MOHITE DERE, J.
