Case: Babudas Vs. State Of M.P

2. Brief facts necessary for disposal of the appeal are that the first accused (since acquitted) and deceased Abhai Kumar were classmates during theirThe deceased had done his Ayurved Ratna and had started medical practice. He was also studying M.Sc. On 21.5.1988 said deceased told his father Babu Lal Jain that he was going to Indore for a day or two on some work and left Mandsaur at about 7/7.30 p.m. on that day. After some days since the deceased did not return, his father made a frantic search for him but all in vain. On 25.5.1988 the villagers spotted a dead body floating in Laduna lake and informed the village Chowkidar who, in turn, went to the Police Station Sitamau and lodged a report. Based on the said report, a crime came to be registered and the SHORajendra Singh Jhalaarranged to fish the body out of the lake. The body had by then putrified and was unidentifiable. It is the case of the prosecution that from the clothes found on the body as also ainside the pocket of the pant, the dead body was identified by the father, the younger brother, a friend and a former teacher of the deceased as that of Abhai Kumar. On post mortem the doctor opined that the deceased had died due to stab injuries on his chest. During the course of investigation it was found that on 18.5.1988 when the deceased and his friend Nilkanthhad gone to a pan shop when the first accused Gowardhan met him there and took the deceased away fromcould hear that conversation betweenand the deceased. During the said conversation,1 asked the deceased for a loan of Rs. 30,000/but the deceased toldthat he had only Rs. 25,000/in his bank account which he would lend to him. It is the case of the prosecution that during the course of investigation,Dinesh Shukla remembered that on 21.5.1988 he had actually seen the deceased in the company of both the accused near the lake which he informed the investigating officer after about a week because he had then left for his village. The accused persons were then arrested on 27.5.1988 andallegedly told the I.O. that out of Rs. 25,000 taken by him from the deceased, a sum of Rs. 20,000/was given to the sister offor safe keeping and Rs. 4,900/were given towhile the balance was pocketed byhimself. The prosecution the also alleges that on the same day,told the I.O. that he had hidden a knife which was used in the murder of the deceased in a pond near the take and that he would take the Police to the said place for recovery of the said knife. He is also supposed to have told the Police that he had hidden the money given to him byafter spending a part thereof under some red stones on the way leading to Dammakheri. Even in this regardis supposed to have offered the Police to lead them to the place for recovery of the said money.also allegedly told the Police that he had kept hidden a watch taken from the deceased under the earth in a corner of a wall of the temple near the pond. These statements according to the prosecution, were made to the Police in the presence of PWs. 17 and 19 and pursuant thereto, the accused persons took these witnesses along with the Police to various places mentioned by him and facilitated the Police to recover the knife, the money and the watch. Prosecution through various witnesses examined in the trial, have contended that the watch in question actually belonged to a friend of the deceased who had kept the same with him for safe custody which the deceased had worn at the time when he allegedly left for Indore. The prosecution through the evidence of the Bank Manager had also tried to establish the fact that the deceased on 21.5.1988 had withdrawn a sum of Rs. 25,000 in the denomination of 100 rupee notes. It is based on the above evidence that the trial court found bothguilty of the offence charged but the High Court while allowing the appeal of

Reasoning: 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