Distance between ‘may be’ true and ‘must be’ true be covered by cogent evidence: HC

Srinagar, Jan 31: The High Court of J&K and Ladakh Wednesday held that 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.

A bench of Justice Vinod Chatterji Koul said this while setting aside the conviction and two-year sentence awarded in 2015 by a trial court to a government employee, Mansoor Ahmad Malik, in connection with a corruption case.

The court allowed Malik’s appeal against the judgment of conviction and sentence passed by the court of Special Judge, Anticorruption (Additional Sessions Judge Pulwama) on December 3, 2015, saying the prosecution had failed to prove clearly and explicitly the demand for illegal gratification.

Relying on a Supreme Court judgment, the court said that in a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take the 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 said.

The court underscored that in a criminal case, it must 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,” the court said. “In such cases, while keeping in mind the distance between `may be’ true and `must be’ true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as the quality and credibility of evidence brought on record.”

The court said that the judgment must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of the doubt must be given to the accused keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt but a fair doubt that is based upon reason and common sense.

Malik was sentenced to two years jail in a case FIR No 26/2009 of Police Station Vigilance Organisation Kashmir (VOK) after being held guilty of commission of an offence punishable under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act.