Supreme Court of India
Yogarani vs State By Inspector Of Police on 23 September, 2024
Author: Aravind Kumar
Bench: Aravind Kumar, Sanjay Kumar
2024 INSC 721 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.477 of 2017 YOGARANI …APPELLANT(S) VERSUS STATE BY THE INSPECTOR OF POLICE …RESPONDENT(S) JUDGMENT
Aravind Kumar, J.
1. 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.
2. The short and long of prosecution story is that appellant had
Signature Not Verified
Digitally signed by
wrongfully and illegally facilitated accused No. 1, for obtaining a second
SWETA BALODI
Date: 2024.09.23
16:59:58 IST
passport, who was already holding an Indian passport. It was further alleged
Reason:
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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.
3. 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 Section120B
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
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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.
4. We have heard the arguments canvassed on behalf of the appellant
and the respondent.
5. The thrust of the argument advanced by the learned counsel
appearing on behalf of the appellant is that conviction of appellant alone is
not sustainable for more than one reason. Firstly, when accused Nos.3 and 4
who were charged for similar offences had been acquitted of all the charges
and no appeal having been filed challenging their acquittal; secondly, when
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accused No.1 for whose benefit the alleged second passport had been issued,
had been acquitted by disbelieving the story of the prosecution namely
accused No.3 who was in charge of safe custody of passport had illegally
given the second passport to the appellant through accused No.4. It is further
contended that both the courts had erroneously convicted the appellant on
the strength of the testimony of PW-3 though she had not deposed that
appellant being aware of the details of the previous passport held by accused
No.1 had knowingly processed the application of accused No.1. It is further
contended that PW-3 had turned hostile and had not supported the story of
prosecution and as such conviction could not have been sustained on the
basis of the testimony of the said witness. He would also further contend
that the High Court had erroneously evaluated the evidence of PW-16
(handwriting expert) who had not expressed any definite opinion with regard
to the hand writing found on the returned postal cover with that of admitted
hand writing of the appellant and thereby the guilt of the accused was not
proved or established beyond reasonable doubt. Learned Counsel would also
elaborate his submissions by contending that the testimony of PW-15 did not
establish as to when the application of the accused No.1 had been received
by the appellant and there was no iota of evidence placed by the prosecution
in this regard including the purported payment of registration fees and
service charges from appellant by PW-15. Pointing to these gaping holes in
the prosecution story it is contended that the judgment of conviction and
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sentence imposed on the appellant would not be sustainable as such he has
prayed for appeal being allowed and appellant being acquitted.
6. On the contrary, learned counsel appearing for the respondent
would support the case of the prosecution and would contend that both the
courts on proper evaluation of evidence has arrived at a conclusion that the
appellant had committed the offence and convicted her, which finding does
not suffer from any infirmity either in law or on facts calling for interference.
Hence, learned counsel appearing for the respondent has prayed for
dismissal of the appeal.
DISCUSSION AND FINDING
7. 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.
8. 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
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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.
9. 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
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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 the
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.
10. 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.’’7
In the case on hand, allegations against the appellant being the same as madeagainst Accused No.3 & 4, the Courts below could not have convicted the
Appellant while acquitting the other two.
11. There is no direct incriminating information emanating from the
evidence of the PW-3 against the Appellant. All that she has deposed is that
she had filled the application form of accused No.1 and Appellant was by
her side while she was filling the application and she has also deposed that
appellant would verify and check the application after filling of the
application. PW-3 was treated as hostile by prosecution as already noted
herein above and prosecution was not able to elicit any incriminating
material against the Appellant in her cross examination. As such the
evidence of PW-3 is not reliable and trustworthy.
12. PW-15 has deposed that application of accused No.1 has been
submitted to his firm by Appellant herein and that the charges were paid by
Appellant. Apart from the said statement, no documentary evidence was
produced to show that charges were paid by the Appellant and that the
Appellant had prior knowledge of accused No.1 having a passport. Evidence
of this witness does not inspire confidence and even if the same is taken at
its face value, it would not discharge the burden cast on the prosecution to
prove the guilt of the Appellant beyond reasonable doubt.
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13. 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] , wherein the Supreme Court held as under: (SCC
pp. 614-15, para 28)
“28. Thus, the evidence of PW 3 is not definite and cannot
be said to be of a clinching nature to connect the appellant
with the disputed letters. The evidence of an expert is a
rather weak type of evidence and the courts do not
generally consider it as offering “conclusive” proof and
therefore safe to rely upon the same without seeking
independent and reliable corroboration. In Magan Bihari
Lal v. State of Punjab [Magan Bihari Lal v. State of Punjab,
(1977) 2 SCC 210 : 1977 SCC (Cri) 313] , while dealing9
with the evidence of a handwriting expert, this Court
opined: (SCC pp. 213-14, para 7)
‘7. …we think it would be extremely hazardous to
condemn the appellant merely on the strength of
opinion evidence of a handwriting expert. It is now
well settled that expert opinion must always be
received with great caution and perhaps none so with
more caution than the opinion of a handwriting
expert. There is a profusion of precedential authority
which holds that it is unsafe to base a conviction
solely on expert opinion without substantial
corroboration. This rule has been universally acted
upon and it has almost become a rule of law. It was
held by this Court in Ram Chandra v. State of U.P.
[Ram Chandra v. State of U.P., AIR 1957 SC 381 :
1957 Cri LJ 559] that it is unsafe to treat expert
handwriting opinion as sufficient basis for
conviction, but it may be relied upon when supported
by other items of internal and external evidence. This
Court again pointed out in Ishwari Prasad Misra v.
Mohd. Isa [Ishwari Prasad Misra v. Mohd. Isa, AIR
1963 SC 1728] that expert evidence of handwriting
can never be conclusive because it is, after all,
opinion evidence, and this view was reiterated in
Shashi Kumar Banerjee v. Subodh Kumar Banerjee
[Shashi Kumar Banerjee v. Subodh Kumar Banerjee,
AIR 1964 SC 529] where it was pointed out by this
Court that an expert’s evidence as to handwriting
being opinion evidence can rarely, if ever, take the
place of substantive evidence and before acting on
such evidence, it would be desirable to consider
whether it is corroborated either by clear direct
evidence or by circumstantial evidence. This Court
had again occasion to consider the evidentiary value
of expert opinion in regard to handwriting in
Fakhruddin v. State of M.P. [Fakhruddin v. State of
M.P., AIR 1967 SC 1326 : 1967 Cri LJ 1197] and it
uttered a note of caution pointing out that it would be
risky to found a conviction solely on the evidence of a
handwriting expert and before acting upon such
evidence, the court must always try to see whether it
is corroborated by other evidence, direct or
circumstantial.’”
15. Of course, it is not safe to base the conviction solely on the
evidence of the handwriting expert. As held by the Supreme Court
in Magan Bihari Lal v. State of Punjab [Magan Bihari Lal v. State
of Punjab, (1977) 2 SCC 210 : 1977 SCC (Cri) 313] that: (SCC
p. 213, para 7)10
“7. … expert opinion must always be received with great
caution … it is unsafe to base a conviction solely on expert
opinion without substantial corroboration. This rule has
been universally acted upon and it has almost become a
rule of law.”
16. It is fairly well settled that before acting upon the opinion of
the handwriting expert, prudence requires that the court must see
that such evidence is corroborated by other evidence either direct
or circumstantial evidence. In Murari Lal v. State of M.P. [Murari
Lal v. State of M.P., (1980) 1 SCC 704 : 1980 SCC (Cri) 330] ,
the Supreme Court held as under: (SCC pp. 708-09, paras 4 and
6)
“4. … True, it has occasionally been said on very high
authority that it would be hazardous to base a conviction
solely on the opinion of a handwriting expert. But, the
hazard in accepting the opinion of any expert, handwriting
expert or any other kind of expert, is not because experts,
in general, are unreliable witnesses — the quality of
credibility or incredibility being one which an expert shares
with all other witnesses — but because all human judgment
is fallible and an expert may go wrong because of some
defect of observation, some error of premises or honest
mistake of conclusion. The more developed and the more
perfect a science, the less the chance of an incorrect opinion
and the converse if the science is less developed and
imperfect. The science of identification of fingerprints has
attained near perfection and the risk of an incorrect opinion
is practically non-existent. On the other hand, the science
of identification of handwriting is not nearly so perfect and
the risk is, therefore, higher. But that is a far cry from
doubting the opinion of a handwriting expert as an
invariable rule and insisting upon substantial
corroboration in every case, howsoever the opinion may be
backed by the soundest of reasons. It is hardly fair to an
expert to view his opinion with an initial suspicion and to
treat him as an inferior sort of witness. His opinion has to
be tested by the acceptability of the reasons given by him.
An expert deposes and not decides. His duty “is to furnish
the Judge with the necessary scientific criteria for testing
the accuracy of his conclusion, so as to enable the Judge to
form his own independent judgment by the application of
these criteria to the facts proved in evidence [ Vide Lord
President Cooper in Davis v. Edinburgh Magistrate, 1953
SC 34 quoted by Professor Cross in his evidence] .
5. ***
6. Expert testimony is made relevant by Section 45 of the
Evidence Act and where the Court has to form an opinion
upon a point as to identity of handwriting, the opinion of a
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person “specially skilled” “in questions as to identity of
handwriting” is expressly made a relevant fact. … So,
corroboration may not invariably be insisted upon before
acting on the opinion of an handwriting expert and there
need be no initial suspicion. But, on the facts of a particular
case, a court may require corroboration of a varying
degree. There can be no hard-and-fast rule, but nothing will
justify the rejection of the opinion of an expert supported by
unchallenged reasons on the sole ground that it is not
corroborated. The approach of a court while dealing with
the opinion of a handwriting expert should be to proceed
cautiously, probe the reasons for the opinion, consider all
other relevant evidence and decide finally to accept or
reject it.”
14. Appellant has also been charged for the offence punishable under
Section 12(2) of the Passports Act, 1967 which reads as under:
“12. Offences and penalties.— (1) Whoever—
(a) contravenes the provisions of section 3; or
(b) knowingly furnishes any false information or
suppresses any material information with a view to
obtaining a passport or travel document under this
Act or without lawful authority alters or attempts to
alter or causes to alter the entries made in a passport
or travel document; or
(c) fails to produce for inspection his passport or travel
document (whether issued under this Act or not) when
called upon to do so by the prescribed authority; or
(d) knowingly uses a passport or travel document
issued to another person; or
(e) knowingly allows another person to use a passport
or travel document issued to him;
shall be punishable with imprisonment for a term which
may extend to two years or with fine which may extend to
five thousand rupees or with both.
(1A) xxxxxxx
(2) Whoever abets any offence punishable under
sub-section (1) or sub-section (1A) shall, if the act
abetted is committed in consequence of the abetment,
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be punishable with the punishment provided in that
sub-section for that offence.”
It is needless to state that burden is cast on the prosecution to prove that the
appellant had knowingly furnished false information or supressing known
material information with the intent of securing a passport or travel
document to a person and thereby had abetted in the commission of offence
punishable under Section 12(1) and thereby punishable under Section 12(2)
of the Passports Act.
15. 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
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prosecution had failed to prove the guilt of the appellant beyond reasonable
doubt.
16. 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.
17. The bail bonds of the appellant stands cancelled. The appeal stands
allowed in the above terms.
……………………………….J.
(Sanjay Kumar)
.………………………………J.
(Aravind Kumar)
New Delhi
September 23 , 2024
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