BABUDAS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant and another person by name Gowardhan were charged for offences punishable under section 302 read with section 34 and section 201 read with section 34 IPC for having committed the murder of one Abhai Kumar on 21.5.1988 and for having destroyed the evidence by throwing the dead body of said Abhai kumar in a lake. The learned sessions judge, Mandsaur, Madhya Pradesh, who tried the accused for the above charges, imposed a sentence of imprisonment for life on both the accused for an offence punishable under section 302 read with 34 and a further Rl for a period of 3 years under section 201 read with section 34. In an appeal filed by the convicted accused which included the appellant before us, the high Court of Madhya Pradesh, Jabalpur, bench at Indore allowed the appeal of gowardhan and acquitted him of all charges while the appeal filed by the appellant herein - Babudas - was dismissed, confirming his conviction and sentence under section 302 and 201 IPC. It is against this judgment of the High Court that the appellant is before us in this appeal.

(2.) Brief facts necessary for disposal of the appeal are that the first accused (since acquitted) and deceased Abhai Kumar were classmates during their school-days. The 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 SHO - Rajendra Singh Jhala - arranged to fish the body out of the lake. The body had by then putrefied and was unidentifiable. It is the case of the prosecution that from the clothes found on the body as also a key- bunch inside 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 Nilkanth pw-7 had gone to a pan shop when the first accused Gowardhan met him there and took the deceased away from PW-7 but PW-7 could hear that conversation between A-1 and the deceased. During the said conversation, PW-7 states that A-1 asked the deceased for a loan of Rs. 30,000 but the deceased told A-1 that 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, PW-10 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 and A-1 allegedly 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 of A-2 for safe keeping and Rs. 4,900 were given to a-2 while the balance was pocketed by A- 1 himself. The prosecution then also alleges that on the same day, A-2 told the i. O. that he had hidden a knife which was used in the murder of the deceased in a pond near the lake 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 by A-1 after spending a part thereof under some red stones on the way leading to Dammakheri. Even in this regard A-2 is supposed to have offered the police to lead them to the place for recovery of the said money. A-2 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 safer 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 both A-1 and A-2 guilty of the offence charged but the High court while allowing the appeal of A-1, has convicted A-2.

(3.) We have heard Ms. Rachna Gupta, learned counsel for the appellant; and Ms. Vibha Datta Makhija, learned counsel for the respondent-State. It is contended on behalf of the appellant that the only evidence that has been accepted as against this appellant by the High Court is that of the recovery which part of the prosecution evidence has not been accepted by the said court in regard to the first accused who even according to the prosecution, was the person who had taken the loan of Rs. 25,000, still the High Court erroneously accepted this part of the prosecution case to confirm the conviction as against the appellant which ought not to have been done. That apart, it is contended that the story of recovery of knife, watch and the money is so artificial that the same cannot be accepted by any prudent person. It was also pointed out that out of the 2 witnesses who were panchayatdars for all these recoveries, PW-17 is a stock recovery witness for the police in a large number of cases and his evidence in the court in this case shows that in reality the recoveries were not made at the behest of A-2 or from the place as alleged by the prosecution. Learned counsel for the respondent-State, per contra, has contended that the mere fact that PW-17 was a witness for recovery in many earlier cases, ipso facto does not make the recovery bad in the eye of law. That apart, it is not only PW-17 who has been a witness to the recoveries, there was PW-19 also who cannot be termed as a stock witness therefore the argument that the recoveries should no be believed, has no merit. She contended that a recent and unexplained possession of properties of the deceased by the accused justified the presumption that it was the said accused and no one else had committed the murder which according to learned counsel, is permissible under section 114 (a) of the evidence Act. In support of this contention of hers, learned counsel relied on a judgment of this Court in Baiju alias Bharosa v. State of Madhya Pradesh, 1978 (2) SCR 594. She further pointed out from the material on record that the appellant herein had taken a specific stand that on the date of the incident, he was not in Mandsaur but was away from there. He had set up a plea of alibi which has been found to be not true by both the courts below therefore setting up of a false alibi in a case involving only circumstantial evidence would also be a circumstance to be taken note of as a link indicating the guilt of the accused. In support of this proposition, she relied on a judgment of this Court in Mani Kumar Thapa v. State of Sikkim, JT 2002 (6) SC 349 ; 2002 (7) SCC 157.