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.

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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 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.”
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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.