Case: Manik &amp; Another Vs. State of Maharashtra

the deceased.21. Dr.Raut (PW5) states that he found the following five external injuries on the body of the deceased Babasaheb, which were antemortem.i) CLW infraorbital right eye (laterally), having size 2 cm. x 1 cm bony deep.ii) CLW right zygomatic area, having size 2 cm. x 1 cm. bony deep.iii) CLW right temporal region, having size 3 cm. x 2 cm. depressed fracture.iv) CLW occipital area having size 2 cm x 1 cm. bony deep.v) Contusion at right clavicle lateral end, having size 3 cm. x 3 cm.He states that the probable cause of death of the deceased Babasaheb was due to head injury. Accordingly, he prepared the memorandum of post mortem (Exh.36). It has come in his cross-examination that if a person falls into a well, the abovereferred injuries found on the body of the deceased Babasaheb, as mentioned in column no.17 of the memorandum (Exh.36) of post mortem, are possible.22. It has come in the evidence of Baban (PW-1) (Exh.27), that the police prepared panchanama (Exh.28) in respect of the well, where the dead body of the deceased Babasaheb was found lying. The work of digging and construction of the said well was in progress, as seen from the contents of the spot panchanama (Exh.28). The informant as well as Vijubai (PW-3) admit that there was no parapet wall around the mouth of that well. The construction material was lying near the said well. As stated above, the A.D. report was lodged, wherein, it has been specifically mentioned that the deceased Babasaheb was in the habit of consuming liquor and he might have fallen into the said well under the influence of liquor. If these circumstances, coupled with the medical evidence is considered, the possibility of the deceased Babasaheb falling into the well accidentally cannot be ruled out.23. Indisputably, the informant visited the spot of the incident i.e. the well where the dead body of Babasaheb was lying, on 17-03-2004 at about 09.00 a.m. along with his son-in-law namely Ashok Tilak. It has come in the cross-examination of A.P.I. Citikar (PW6)( Exh.39) and A.P.I. Mane (PW7)( Exh.41) who conducted the investigation into the present crime, that A.D. No.04/2004 was registered in respect of the deceased Babasaheb on the ground that he had fallen down into the well under the influence of liquor and died. The prosecution has withheld the evidence of Ashok Tilak, who had lodged the A.D. Report, on the basis of which A.D.NO.04/2004 was registered. Any way, the informant was very much with Ashok Tilak at that time, however, the informant did not raise any suspicion against anybody behind the death of Babasaheb at that time or even when the police visited the spot of the incident for conducting inquiry in respect of A.D. No.04/2004 on that day. It is only on 28-03-2004 that the informant went to Police Station Chaklamba and lodged report (Exh.31) against the appellants alleging that they committed murder of the deceased Babasaheb. There is absolutely no explanation given by the informant for the delay in lodging the F.I.R. (Exh.31).24. In the present case, the evidence of the informant and Vijubai (PW-3) in respect of the last seen together, as stated above, is not at all believable. Moreover, no motive has been attributed and established by the informant, Vijubai (PW-3) and Tatyaram (PW-4) in their evidence against the appellants for causing the death of Babasaheb. The facts and circumstances of the case as well as the medical evidence show the possibility of the deceased Babasaheb falling down into the well accidentally and suffering injuries, to which he succumbed. There is unexplained delay of about 3 days in lodging the F.I.R., which is fatal to the prosecution in view of the judgment in the case of Ramaiah alias Rama Vs. State of Karnataka, AIR 2014 SC 3388 , cited by the learned counsel for the appellants.25. There is absolutely no evidence coming either through the informant or Vijubai (PW-3) or Tatyaram (PW-4) attributing any motive on the part of the appellants to commit the murder of the deceased Babasaheb.26. The learned Assistant Public Prosecutor cited the case of Om Prakash v. State of Uttaranchal, (2003)1 SCC 648 , wherein, after considering various incriminating circumstances connecting the accused, he was held guilty for the offence punishable under Section 302 of the I.P.C. It was observed that correctness of conviction cannot be touched on the touchstone of lack of motive when evidence establishes beyond reasonable doubt the guilt of the accused. No such circumstances are established against the present appellants. Therefore, the said ruling would be of no help to the prosecution.27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150 , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside.

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

Explanation:
1[ds]27. In the case of Raj Kumar Singh alias Batya Vs. State of Rajasthan, AIR 2013 SC 3150  , it is held that in a criminal trial, suspicion no matter howsoever strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict and the basic and golden rule must be applied.28. The prosecution failed to establish that the death of Babasaheb was homicidal and that the appellants were connected with his death. The learned trial Judge did not appreciate the evidence on record correctly and properly and merely on the basis of the conjectures and surmises held the appellants guilty for a serious offence like murder, for which the minimum punishment is imprisonment for life. The findings recorded by the learned trial Judge, holding the appellants guilty, are not supported by any cogent and clinching evidence. In the result, the impugned judgment and order will have to be set aside and accordingly set aside.