It is definitely in the fitness of things that while taking the most right, robust and rational stand, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Yogarani Vs State By The Inspector Of Police in Criminal Appeal No.477 of 2017 and cited in Neutral Citation No.: 2024 INSC 721 that was pronounced as recently as on September 23, 2024 in the exercise of its criminal appellate jurisdiction has minced just no words to lay down in no uncertain terms most unequivocally that the court cannot convict one accused and so also acquit the other when there is similar or identical evidence pitted against the two accused persons. It ought to be noted that a Bench of Apex Court comprising of Hon’ble Mr Justice Sanjay Kumar and Hon’ble Mr Justice Aravind Kumar very rightly acquitted a woman named Yogarani who ran Kamatchi Travels by allowing her appeal against the judgments that had held her guilty of Section 420 IPC read with Section 12(2) of the Passports Act, 1967 and had sentenced her to one-year rigorous imprisonment for each of the offences to run concurrently. The Special Court in Madurai had acquitted all other accused except the appellant and accused number one, J Joseph and an upper division clerk. The CBI did not prefer appeal.
Also, it needs to be borne in mind that the Madras High Court had allowed the appeals that had been filed by two other convicts which was not challenged by the CBI. We thus see that the Apex Court very rightly set aside the judgment of the Trial Court and the High Court of Madras at Madurai Bench and acquitted the appellant. No denying it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Aravind Kumar for a Bench of the Apex Court comprising of Hon’ble Mr Justice Sanjay Kumar and himself sets the ball in motion by first and foremost putting forth in para 1 that, “The appellant who has been arraigned as accused No.2 has challenged the concurrent conviction and sentence ordered under Section 420 Indian Penal Code (for short ‘IPC’) read with Section 12(2) of the Passports Act, 1967 (herein after referred as ‘Passports Act’) and sentenced to one-year rigorous imprisonment for each of the offences which are to run concurrently.”
To put things in perspective, the Bench envisages in para 2 that, “The short and long of prosecution story is that appellant had wrongfully and illegally facilitated accused No. 1, for obtaining a second passport, who was already holding an Indian passport. It was further alleged that accused No.1 having deposited his passport with his employer at Dubai had applied for second passport in order to have better employment opportunities and said application was forwarded/routed through the appellant. The prosecution alleged that second passport which was issued and dispatched to Accused No.1 had been returned undelivered to the Passport Office Trichy and was kept in safe custody and later it was delivered to the appellant by accused No.3 who was in charge of safe custody of the passports through accused No.4 who was working as a casual labourer in the Passport Office. It was also alleged that appellant had demanded payment of Rs.5,000/- from accused No.1 for handing over the passport and he having refused resulted in appellant returning the second passport to the Passport Office by registered post.”
As we see, the Bench discloses in para 3 that, “Along with the appellant other accused persons namely Mr. J. Joseph (Accused No.1), Smt. Sasikala (Accused No.3) – in charge of safe custody of passports, Mr. P. Manisekar (Accused No.4) working as a casual labour in the Passport Office, Trichy and Mr. S. Raghupathy (Accused No.5) then working as an Upper Division Clerk in Passport Office, Trichy who had made an endorsement that no passport had earlier been issued in favour of Accused No.1 were also tried for the offences punishable under Section 120B read with Section 420 of IPC, Section 12(1)(b), 12(2) of Passports Act and Section 13(2) and Section 13(1)(d) of Prevention of Corruption Act, 1988 before the Special Judge for CBI cases, Madurai, which resulted in acquittal of all the accused persons in respect of charge of conspiracy. Accused Nos.3 and 4 were acquitted of all other charges also. The CBI did not prefer any appeal against acquittal of accused Nos.3 and 4. However, accused Nos.1 and 2 were convicted for offences punishable under Section 420 IPC and Section 12(1)(b) and Section 12(2) of Passports Act respectively. Accused No.5 was convicted under Section 12(2) of Passports Act and Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. Accused Nos.1, 2 and 5 preferred criminal appeals challenging their conviction and sentence and by impugned common judgment the High Court allowed the appeals filed by accused Nos.1 and 5 and acquitted them and said judgment has attained finality as it has not been challenged by the CBI. However, the appeal filed by accused No.2 came to be dismissed and as such she is before this Court.”
As it turned out, the Bench enunciates in para 7 that, “The case of the prosecution as noted herein above is that appellant had illegally facilitated the issuance of second passport in favour of accused No.1 or in other words accused No.1 who held an Indian Passport had deposited the same with his employer at Dubai and in search of better employment opportunities had clandestinely applied for second passport through the appellant and other accused persons had connived with the appellant in procuring second passport to Accused No.1.”
Do note, the Bench notes in para 8 that, “The conviction of appellant is based on the deposition of three witnesses namely PW-3 (Selvi Sakila Begum), PW-15(Mr. Selvaraj), and PW-16 (Mr. Ravi). PW-3 is an employee of the proprietorship firm of appellant i.e. Kamatchi Travels and in her examination-in-chief she has deposed that she was working in the said travels which was offering various services including facilitating and obtaining the passports. She has further deposed that as the firm in which she was working could not render such services directly and the applications of their customers for issuance of passports were routed through Eagle Travels run by PW-15. She has also deposed that the application of accused No.1 was filled by her. However, she had turned hostile and nothing worthwhile was elicited in her cross-examination except to the extent of her admission that appellant was sitting next to her while she was filling the application form of accused No.1. She does not depose that appellant had any knowledge of Accused No.1 was already possessing a passport or appellant having informed her about the passport already held by Accused No.1.”
Do further note, the Bench notes in para 9 that, “PW-15 (Mr. Selvaraj) who is the proprietor of Eagle Travels has deposed that the application Ex.P-7 for issuance of passport in favour of accused No.1 was submitted through his firm and it was received from the appellant and appellant had paid the registration fee. PW-16 (Mr. Ravi), the Principal Scientific Advisor of Central Forensic Sciences Laboratory who has been examined by prosecution to drive home the fact that hand writing found on the returned postal cover is that of the appellant, though had deposed that there are similarities in the writings has also admitted that it is not possible for him to express any opinion in that regard on the basis of material on hand. It is pertinent to note at this juncture that prosecution had contended that accused No.3 who was in charge of safe custody of returned passports in the Passport Office had illegally removed the returned passport of accused No.1 from safe custody and had handed over the same to the appellant through accused No.4. However, trial court has not accepted this version of the prosecution and had acquitted accused Nos.3 and 4. The prosecution had failed to place on record any evidence to establish as to how the passport kept in the safe custody had gone missing and in what manner it was handed over to the appellant or appellant in turn having returned the same back to Passport Office by post. Thus, for lack of direct evidence the accused No.3 and 4 have been acquitted.”
Most significantly, while citing a recent and relevant case law, the Bench points out in para 10 that, “The Court cannot convict one accused and acquit the other when there is similar or identical evidence pitted against two accused persons. In the case of Javed Shaukat Ali Qureshi v State of Gujarat reported in 2023 INSC 829, this court has held that:
“15. When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination.’’
In the case on hand, allegations against the appellant being the same as made against Accused No.3 & 4, the Courts below could not have convicted the Appellant while acquitting the other two.”
Briefly stated, it is worth noting that the Bench notes in para 13 that, “Evidence of PW-16 would also not come to the assistance of prosecution and, merely because he has deposed there are some similarities between the writings found on postal cover i.e. Ex.P8 and that of admitted writings of Appellant, by itself would not be sufficient to convict the Appellant, since he has admitted that it is not possible for him to express any opinion on the rest of the questioned items except with regard to handwriting of PW-3. It is pertinent to note that with regard to signature found in Ex.P7/passport application, no opinion was given by him as to who signed the same. It is crucial to note that evidence of PW-16 is not corroborated by any other evidence. This Court in catena of decisions has held that, without independent and reliable corroboration, the opinion of the handwriting experts cannot be solely relied upon to base the conviction. This Court in Padum Kumar v State of Uttar Pradesh reported in (2020) 3 SCC 35 has held as under :-
“14. The learned counsel for the appellant has submitted that without independent and reliable corroboration, the opinion of the handwriting experts cannot be relied upon to base the conviction. In support of his contention, the learned counsel for the appellant has placed reliance upon S. Gopal Reddy v. State of A.P. [S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 : 1996 SCC (Cri) 792].””
More to the point, the Bench rightly points out in para 15 that, “In the case on hand the prosecution failed to place any evidence to prove that the appellant had prior information of accused No.1 was already possessing a passport or knowingly had furnished false information to the passport authorities namely after knowing that accused No.1 had possessed or holding a passport was applying for second passport or having known the fact of accused No.1 possessing the passport was applying for the second passport and thereby there has been suppression of material information. In other words, the prosecution had failed to place on record any evidence to prove that appellant had any previous knowledge of accused No.1 was already possessing a passport. In the absence of any cogent evidence placed in this regard and accused Nos. 1 and 3 to 5 having been acquitted of the offences alleged, the conviction and order of sentence imposed against the appellant alone cannot be sustained or in other words it has to be held that prosecution had failed to prove the guilt of the appellant beyond reasonable doubt.”
As a corollary, the Bench then directs in para 16 that, “For the reasons afore-stated the appeal succeeds and appellant-accused No.2 is acquitted of the offences alleged against her. The judgment of the Trial Court passed in C.C. No.5 of 2007 as affirmed in C.A.(Md) No.203 of 2008 by the High Court of Madras at Madurai Bench dated 18.08.2011 are hereby set aside.”
Finally, the Bench then concludes by directing and holding aptly in para 17 that, “The bail bonds of the appellant stands cancelled. The appeal stands allowed in the above terms.”
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