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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

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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

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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

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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

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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

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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 non-

explanation 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.”

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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.