YOGARANIversusSTATE BY THE INSPECTOR OF POLICE

                 [2024] 9 S.C.R. 625 : 2024 INSC 721

                              Yogarani
                                  v.
                   State by The Inspector of Police
                     (Criminal Appeal No. 477 of 2017)
                             23 September 2024
              [Sanjay Kumar and Aravind Kumar,* JJ.]


                           Issue for Consideration
       Issue arose, if the court can convict one accused and acquit the
       other when there is similar or identical evidence pitted against two
       accused persons.

                                  Headnotes†
       Passports Act, 1967 – ss.12(1)(b) and 12(2) – Offences and
       penalties – Prosecution case that appellant illegally facilitated
       the issuance of second passport in favour of accused
       no.1 – Other accused persons connived with the appellant
       in procuring second passport to accused no.1 – Appellant
       and accused no.1 convicted for offences punishable u/s.420
       IPC and s.12(1)(b) and s.12(2) of the 1967 Act, accused no.5
       convicted u/s.12(2) of the 1967 Act and the Prevention of
       Corruption Act, however, acquitted accused no.3 and 4 of all
       the charges – In appeal, the High Court acquitted accused
       nos.1 and 5, however, the order of conviction and sentence
       of the appellant upheld – Sustainability:
       Held: Court cannot convict one accused and acquit the other
       when there is similar or identical evidence pitted against two
       accused persons – Allegations against the appellant being the
       same as made against accused No.3 and 4, the courts below
       could not have convicted the appellant while acquitting the
       other two – Burden is cast on the prosecution to prove that the
       appellant had knowingly furnished false information or suppressing
       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 u/s.12(1) and thereby punishable
       u/s.12(2) – 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
* Author
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       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 –
       Prosecution 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 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 – Prosecution
       failed to prove the guilt of the appellant beyond reasonable doubt –
       Appellant acquitted of the offences alleged against her – Judgment
       of the trial court as affirmed by the High Court set aside – Penal
       Code, 1860. [Paras 10, 14-16]

                                Case Law Cited
       Javed Shaukat Ali Qureshi v State of Gujarat [2023] 12 SCR 220 :
       (2023) INSC 829; Padum Kumar v State of Uttar Pradesh [2020]
       1 SCR 57 : (2020) 3 SCC 35 – referred to.

                                  List of Acts
       Penal Code, 1860; Passports Act, 1967; Prevention of Corruption
       Act, 1988.

                               List of Keywords
       Issuance of second passport; Conviction of one accused and
       acquittal of the other when similar or identical evidence pitted
       against the two; Burden to prove; False information or suppressing
       known material information.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
       477 of 2017
       From the Judgment and Order dated 18.08.2011 of the High Court
       of Madras at Madurai in CA No. 203 of 2008

                           Appearances for Parties
       M. Yogesh Kanna, S. Prabu Ramasubramanian, Raghunatha
       Sethupathy B, Manoj Kumar A, Vasu Kalra, Ms. Monica Saini,
       Advs. for the Appellant.
[2024] 9 S.C.R.                                                          627

              Yogarani v. State by The Inspector of Police


     Mrs. Aishwarya Bhati, A.S.G., Mukesh Kumar Maroria, Ms. Shraddha
     Deshmukh, Rajnish Prasad, Udai Khanna, Nithin Choudhary
     Pavuluri, Advs. for the Respondent.

                Judgment / Order of the Supreme Court

                                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 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.
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
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       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 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 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
[2024] 9 S.C.R.                                                        629

              Yogarani v. State by The Inspector of Police


     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 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 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
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       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 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
[2024] 9 S.C.R.                                                         631

              Yogarani v. State by The Inspector of Police


           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.
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.
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
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       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 dealing 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
[2024] 9 S.C.R.                                                         633

              Yogarani v. State by The Inspector of Police


                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)
             “7. … expert opinion must always be received with
             great caution … it is unsafe to base a conviction solely
             on expert opinion without substantial corroboration.
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         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
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              Yogarani v. State by The Inspector of Police


             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 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
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                 (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, 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
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                 Yogarani v. State by The Inspector of Police


     sustained or in other words it has to be held that 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.

     Result of the Case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain