No doubt, that nonexplanation or false explanation by appellant cannot be
taken as a circumstance to complete the chain of
circumstances to establish the guilt of the appellant.
However, the false explanation can always be taken into
consideration to fortify the finding of guilt already
recorded on the basis of other circumstances.
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 751 OF 2010
SUDRU .... APPELLANT
VERSUS
THE STATE OF CHATTISGARH .... RESPONDENT
J U D G M E N T
B.R. GAVAI, J.
1. The appellant has approached this court being
aggrieved by the Judgment and order passed by the High
Court of Chattisgarh at Bilaspur in Criminal Appeal
No.1072 of 2001 thereby, dismissing the appeal of
appellant and confirming the Judgment of conviction and
order of sentence as recorded by the Learned Special
Judge, Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act and Additional Sessions Judge, Bastar at
Jagdalpur (hereinafter referred as ‘Trial Court’) on 6th
September, 2001.
2. The prosecution story in brief is thus, Janki Bai
is the second wife of the appellant. First wife of the
appellant had died. The marriage between the appellant
2
and Janki Bai was solemnized seven years prior to the
date of incident. They were having three issues from the
wedlock. On 22.7.2000 the appellant had come home in a
drunken condition and had a quarrel with Janki Bai.
During the quarrel Janki Bai took her two children and
went to the house of her brother-in-law. The appellant
and their elder son Ajit remained in the house. On
23.7.2000 when she returned to the house, she saw that
Ajit was lying on mat and his body was covered with a
blanket. Upon removing blanket, she saw Ajit in dead
condition. Blood was oozing from his mouth. She called
her father-in-law Lakhmu. Injuries were seen on the neck
of the deceased. An FIR came to be lodged in Police
Station Dantewada by Janki Bai. Upon completion of
investigation, chargesheet came to be filed in the Court
of Chief Judicial Magistrate, Dantewada, who in turn
committed the case to the Court of Sessions Judge,
Jagdalpur. The case was received on transfer by the
Additional Sessions Judge, Jagdalpur, who conducted the
trial. The learned Trial Court passed an order of
conviction thereby, convicting the appellant for the
offence punishable under section 302 of the IPC and
sentenced him to undergo imprisonment for life and to pay
fine of Rs.500/- and in default of payment of fine to
further undergo R.I. for one year. Being aggrieved
3
thereby, appeal was filed before the High Court of
Chattisgarh at Bilaspur. The High Court dismissed the
appeal. Hence, the appellant filed the present appeal in
this Court.
3. The learned Counsel for the appellant submitted
that, the Trial Court as well as the High Court have
erred in convicting the appellant and dismissing the
appeal. It is submitted that, the case rests on
circumstantial evidence and the prosecution has utterly
failed to prove the incriminating circumstances and in
any case has failed to establish the chain of
incriminating circumstances, which leads to no other
conclusion than the guilt of the appellant. It is further
submitted that, the star witness Janki Bai has turned
hostile and as such there is no evidence to sustain order
of conviction.
4. No doubt, in the present case all the witnesses
who are related to the accused and the deceased have
turned hostile. PW-1 Janki Bai, wife of the appellant
and the mother of the deceased has also turned hostile.
However, by now it is settled principle of law, that such
part of the evidence of a hostile witness which is found
to be credible could be taken into consideration and it
is not necessary to discard the entire evidence.
Reference in this respect could be made to the judgment
4
of this Court in the case of Bhajju v. State of M.P.,
(2012) 4 SCC 327, which reads thus:
“36. It is settled law that the evidence of
hostile witnesses can also be relied upon
by the prosecution to the extent to which
it supports the prosecution version of the
incident. The evidence of such witnesses
cannot be treated as washed off the
records, it remains admissible in trial and
there is no legal bar to base the
conviction of the accused upon such
testimony, if corroborated by other
reliable evidence. Section 154 of the
Evidence Act enables the court, in its
discretion, to permit the person, who calls
a witness, to put any question to him which
might be put in cross-examination by the
adverse party.”
5. From the evidence of PW-1 Janki Bai it would
reveal, that insofar as that part of the evidence
wherein, she has stated that there was a quarrel between
her husband and her, she left the room with the other two
children and the deceased and the appellant were alone in
the room and that when she reached the house in the
morning, she saw her son Ajit covered with the blanket
and after opening the said blanket seeing Ajit to be dead
is concerned, the same has remain unshattered. It could
thus be seen that, from the evidence of PW1 Janki Bai, it
can be safely held that there was a quarrel between PW-1
Janki Bai and appellant and after the quarrel, she went
to the house of her brother-in-law with two younger
children and that the deceased was left alone in the
5
company of appellant and on the next day morning the
deceased was found to be dead.
6. In this view of the matter, after the prosecution
has established the aforesaid fact, the burden would
shift upon the appellant under Section 106 of the Indian
Evidence Act. Once the prosecution proves, that it is the
deceased and the appellant, who were alone in that room
and on the next day morning the dead body of the deceased
was found, the onus shifts on the appellant to explain,
as to what has happened in that night and as to how the
death of the deceased has occurred.
7. In this respect reference can be made to the
following observation of this Court in the case of
Trimukh Maroti Kirkan versus State of Maharashtra,
reported in (2006) 10 SCC 681:
“In a case based on circumstantial evidence
where no eye-witness account is available
there is another principle of law which
must be kept in mind. The principle is that
when an incriminating circumstance is put
to the accused and the said accused either
offers no explanation or offers an
explanation which is found to be untrue,
then the same becomes an additional link in
the chain of circumstances to make it
complete.”
8. The appellant has utterly failed to discharge
such burden. The appellant has taken defence in his
statement under Section 313 of Cr.P.C., that the deceased
6
has died due to ailment. However, this is falsified by
the medical evidence of PW-2 Dr. B.K. Tirki. In his
evidence he has stated that, there was a fracture on the
head of the deceased and the death of the deceased might
have occurred due to strangulation. There were marks of
fingers on the neck of the deceased. No doubt, that nonexplanation or false explanation by appellant cannot be
taken as a circumstance to complete the chain of
circumstances to establish the guilt of the appellant.
However, the false explanation can always be taken into
consideration to fortify the finding of guilt already
recorded on the basis of other circumstances.
9. In this respect apart from referring to the
observations of this Court in the case of Trimukh Maroti
Kirkan (supra), it will be apposite to refer to the
following observation of this Court in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC
116, which reads thus:
“151. It is well settled that the
prosecution must stand or fall on its own
legs and it cannot derive any strength from
the weakness of the defence. This is trite
law and no decision has taken a contrary
view. What some cases have held is only
this: where various links in a chain are in
themselves complete, then a false plea or a
false defence may be called into aid only
to lend assurance to the court.”
7
10. Taking into consideration these aspects of the
matter, we do not find that the learned Trial Court and
the High Court have erred in recording the finding of
guilt and order of conviction. The appeal is found to be
without merit and as such is dismissed.
...................J.
[DEEPAK GUPTA]
...................J.
[B.R. GAVAI]
NEW DELHI;
AUGUST 22, 2019.
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 751 OF 2010
SUDRU .... APPELLANT
VERSUS
THE STATE OF CHATTISGARH .... RESPONDENT
J U D G M E N T
B.R. GAVAI, J.
1. The appellant has approached this court being
aggrieved by the Judgment and order passed by the High
Court of Chattisgarh at Bilaspur in Criminal Appeal
No.1072 of 2001 thereby, dismissing the appeal of
appellant and confirming the Judgment of conviction and
order of sentence as recorded by the Learned Special
Judge, Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act and Additional Sessions Judge, Bastar at
Jagdalpur (hereinafter referred as ‘Trial Court’) on 6th
September, 2001.
2. The prosecution story in brief is thus, Janki Bai
is the second wife of the appellant. First wife of the
appellant had died. The marriage between the appellant
2
and Janki Bai was solemnized seven years prior to the
date of incident. They were having three issues from the
wedlock. On 22.7.2000 the appellant had come home in a
drunken condition and had a quarrel with Janki Bai.
During the quarrel Janki Bai took her two children and
went to the house of her brother-in-law. The appellant
and their elder son Ajit remained in the house. On
23.7.2000 when she returned to the house, she saw that
Ajit was lying on mat and his body was covered with a
blanket. Upon removing blanket, she saw Ajit in dead
condition. Blood was oozing from his mouth. She called
her father-in-law Lakhmu. Injuries were seen on the neck
of the deceased. An FIR came to be lodged in Police
Station Dantewada by Janki Bai. Upon completion of
investigation, chargesheet came to be filed in the Court
of Chief Judicial Magistrate, Dantewada, who in turn
committed the case to the Court of Sessions Judge,
Jagdalpur. The case was received on transfer by the
Additional Sessions Judge, Jagdalpur, who conducted the
trial. The learned Trial Court passed an order of
conviction thereby, convicting the appellant for the
offence punishable under section 302 of the IPC and
sentenced him to undergo imprisonment for life and to pay
fine of Rs.500/- and in default of payment of fine to
further undergo R.I. for one year. Being aggrieved
3
thereby, appeal was filed before the High Court of
Chattisgarh at Bilaspur. The High Court dismissed the
appeal. Hence, the appellant filed the present appeal in
this Court.
3. The learned Counsel for the appellant submitted
that, the Trial Court as well as the High Court have
erred in convicting the appellant and dismissing the
appeal. It is submitted that, the case rests on
circumstantial evidence and the prosecution has utterly
failed to prove the incriminating circumstances and in
any case has failed to establish the chain of
incriminating circumstances, which leads to no other
conclusion than the guilt of the appellant. It is further
submitted that, the star witness Janki Bai has turned
hostile and as such there is no evidence to sustain order
of conviction.
4. No doubt, in the present case all the witnesses
who are related to the accused and the deceased have
turned hostile. PW-1 Janki Bai, wife of the appellant
and the mother of the deceased has also turned hostile.
However, by now it is settled principle of law, that such
part of the evidence of a hostile witness which is found
to be credible could be taken into consideration and it
is not necessary to discard the entire evidence.
Reference in this respect could be made to the judgment
4
of this Court in the case of Bhajju v. State of M.P.,
(2012) 4 SCC 327, which reads thus:
“36. It is settled law that the evidence of
hostile witnesses can also be relied upon
by the prosecution to the extent to which
it supports the prosecution version of the
incident. The evidence of such witnesses
cannot be treated as washed off the
records, it remains admissible in trial and
there is no legal bar to base the
conviction of the accused upon such
testimony, if corroborated by other
reliable evidence. Section 154 of the
Evidence Act enables the court, in its
discretion, to permit the person, who calls
a witness, to put any question to him which
might be put in cross-examination by the
adverse party.”
5. From the evidence of PW-1 Janki Bai it would
reveal, that insofar as that part of the evidence
wherein, she has stated that there was a quarrel between
her husband and her, she left the room with the other two
children and the deceased and the appellant were alone in
the room and that when she reached the house in the
morning, she saw her son Ajit covered with the blanket
and after opening the said blanket seeing Ajit to be dead
is concerned, the same has remain unshattered. It could
thus be seen that, from the evidence of PW1 Janki Bai, it
can be safely held that there was a quarrel between PW-1
Janki Bai and appellant and after the quarrel, she went
to the house of her brother-in-law with two younger
children and that the deceased was left alone in the
5
company of appellant and on the next day morning the
deceased was found to be dead.
6. In this view of the matter, after the prosecution
has established the aforesaid fact, the burden would
shift upon the appellant under Section 106 of the Indian
Evidence Act. Once the prosecution proves, that it is the
deceased and the appellant, who were alone in that room
and on the next day morning the dead body of the deceased
was found, the onus shifts on the appellant to explain,
as to what has happened in that night and as to how the
death of the deceased has occurred.
7. In this respect reference can be made to the
following observation of this Court in the case of
Trimukh Maroti Kirkan versus State of Maharashtra,
reported in (2006) 10 SCC 681:
“In a case based on circumstantial evidence
where no eye-witness account is available
there is another principle of law which
must be kept in mind. The principle is that
when an incriminating circumstance is put
to the accused and the said accused either
offers no explanation or offers an
explanation which is found to be untrue,
then the same becomes an additional link in
the chain of circumstances to make it
complete.”
8. The appellant has utterly failed to discharge
such burden. The appellant has taken defence in his
statement under Section 313 of Cr.P.C., that the deceased
6
has died due to ailment. However, this is falsified by
the medical evidence of PW-2 Dr. B.K. Tirki. In his
evidence he has stated that, there was a fracture on the
head of the deceased and the death of the deceased might
have occurred due to strangulation. There were marks of
fingers on the neck of the deceased. No doubt, that nonexplanation or false explanation by appellant cannot be
taken as a circumstance to complete the chain of
circumstances to establish the guilt of the appellant.
However, the false explanation can always be taken into
consideration to fortify the finding of guilt already
recorded on the basis of other circumstances.
9. In this respect apart from referring to the
observations of this Court in the case of Trimukh Maroti
Kirkan (supra), it will be apposite to refer to the
following observation of this Court in Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC
116, which reads thus:
“151. It is well settled that the
prosecution must stand or fall on its own
legs and it cannot derive any strength from
the weakness of the defence. This is trite
law and no decision has taken a contrary
view. What some cases have held is only
this: where various links in a chain are in
themselves complete, then a false plea or a
false defence may be called into aid only
to lend assurance to the court.”
7
10. Taking into consideration these aspects of the
matter, we do not find that the learned Trial Court and
the High Court have erred in recording the finding of
guilt and order of conviction. The appeal is found to be
without merit and as such is dismissed.
...................J.
[DEEPAK GUPTA]
...................J.
[B.R. GAVAI]
NEW DELHI;
AUGUST 22, 2019.
