IMPORTANT POINT
Court cannot convict one accused and acquit other when there is similar or identical evidence pitted against two accused persons.

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 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