Case: Babudas Vs. State Of M.P

A-1. Then the learned counsel appearing for the appellant had very seriously contended that the evidence led by the prosecution in regard to recovery of knife, money and wrist-watch is so artificial that the same cannot be accepted by any reasonable person. Having perused the evidence of PW-17, one of the Panchayatdars for recovery and the Investigating officer, PW-20, we find sufficient force in this argument of learned counsel for the appellant. It is seen that the shop of PW-17 is about 1-1/2 kms. away from the Police Station in question, there were many other shops and houses in-between, still the I.O. decided to specifically look for and get PW-17 as a Panchayatdar for the recovery. From the evidence of PW-17, we notice that undoubtedly, he is a stock witness who has been appearing as a witness for recovery on behalf of the prosecution even as far back as the year 1965, we will have to be very cautious in accepting his evidence. The manner in which the alleged recovery is made also creates a lot of doubt in our mind. It is seen from the evidence led by the prosecution that at every place where the accused took the Panchayatdars and the Police, according to the prosecution witnesses themselves, there were thousands of people present witnessing the recovery. We find it extremely difficult that such a large gathering would be present at the recovery unless people in the village had already come to know that there is going to be such a recovery. Then the manner in which the currency notes were allegedly kept in a damp area under a rock also creates doubt in our mind since no prudent man would conceal currency notes in such a place. Then there is a very serious doubt about the recovery of the wrist watch. It is stated that on 28.5.1988 the wrist watch in question was recovered from the place where it was hidden and was seized and sealed in an envelope to which PWs. 10, 17 and 19 appended their signatures. But surprisingly, when the sealed packet was opened in the court, it was found that the watch was wrapped in a newspaper dated 3.6.1988 - a newspaper published about 6 days after the date of seizure. PW-10 who is the I.O. when confronted with this contradiction, has pleaded his inability to given any explanation in regard to this. However, the prosecution through the evidence of PW-11 has made an effort to explain away this serious infirmity in the recovery of the wrist watch. This witness says that the sealed packet which contained the wrist watch was opened in his presence on 15.6.1988 on which date he was posted as a Naib Tehsildar in the Tehsil office for the purpose of getting the watch identified by PW-10, Dinesh Shukla. But for this opening of the packet which was sealed on 28.5.1988, PWs. 17 and 19 who had put their signatures were not parties nor are they parties for resealing of this watch in the newspaper of 3.6.1988. If that be so, we fail to understand what evidentiary value can be attached to the recovery of the wrist watch. The very purpose for which the wrist watch was packed and sealed with signatures of PWs.17 and 19 on 28.5.1988 is lost by the opening of the packet in their absence. The prosecution cannot prove that the wrist watch recovered on 28.5.1988 at the instance of A-2 is the same watch which was produced in court during the trial. Our suspicion in regard to the genuineness of the recoveries gets compounded by this factum of opening of the sealed articles in the absence of original Panchayatdars. In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness like PW-17 and the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for the respondent-State that in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves both A-1 and A-2 has been disbelieved by the High Court so far as A-1 is concerned and the conviction was confirmed as against A-2 by the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should also fail.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecutions act of using an admittedly stock witness likeand the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for thethat in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves bothhas been disbelieved by the High Court so far asis concerned and the conviction was confirmed as againstby the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution had failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body is the lake, consequently, the charge under Section 201 should alsoreally do not find from the facts of this case how that could be a motive; be it forto do away with the deceased. It is the prosecution case itself that the deceased andwere good friends and when he asked for a loan of Rs. 30,000 the deceased willingly agreed to give him Rs. 25,000/which he had. If that be so, we do not find any reason whatsoever for any one of these accused to kill the deceased after having received the said amount. We also do not see the reasoning behind the prosecution case thathaving received a sum of Rs. 25,000 why he would give the money to the sister ofand a part of it tohimself without retaining any substantial part with him. From the evidence on record we notice that it waswho has spoken in regard to this monetary transaction which from his own evidence we find difficult to believe. It is his case that on 18.5.1988, i.e. 3 days prior to the alleged murder,met the deceased at the pan shop where deceased andhad gone andhad taken the deceased away fromwhich distance according to the evidence ofhimself is aboutmeters. If that be so, we fail to understand howcould have really overheard the conversation between the deceased andAt any rate, we notice that the High Court has not accepted this part of the prosecution case in regard to