2021 Supreme(SC) 766

SUPREME COURT OF INDIA
D.Y. Chandrachud, Vikram Nath, B.V. Nagarathna, JJ.
A.T. Mydeen And Another - Appellants
Versus
The Assistant Commissioner, Customs Department - Respondent
Criminal Appeal No. 1306 of 2021 @ Special Leave Petition (Crl.) No. 374 of 2020
With
A. Dhanapal - Appellant
Versus
The Assistant Commissioner - Respondent
Criminal Appeal Nos. 1307-1308 of 2021 @ Special Leave Petition (Crl.) Nos. 372-373 of 2020
With
Janarthanan - Appellant
Versus
The Assistant Commissioner, Customs Department, Tuticorin - Respondent
Criminal Appeal Nos. 1309-1310 of 2021 @ Special Leave Petition (CRL). Nos. 833-834 of 2020
Decided On : 29-10-2021

IMPORTANT POINTS
(1) Evidence recorded in a criminal trial against any accused is confined to culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for commission of same offence.
(2) In a criminal appeal against conviction, appellate court examines evidence recorded by trial court and takes a call upon issue of guilt and innocence of accused – Scope of appellate court’s power does not go beyond evidence available before it in form of a trial court record of a particular case, unless Section 367 or Section 391 of Cr.P.C. comes into play in a given case.
(3) Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal – There cannot be severance of judgment particularly when it arises in a criminal case, where rights of accused are as important as rights of a victim.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 273 read with Sections 205, 275, 276, 278, 279 and 299 – Indian Evidence Act, 1872 – Section 33 – Whether evidence recorded in a separate trial of co-accused can be read and considered by appellate court in a criminal appeal arising out of another separate trial conducted against another accused, though for commission of same offence – Each case has to be decided on its own merit and evidence recorded in one case cannot be used in its cross case – Whatever evidence is available on record of case only that has to be considered – Only caution is that both trials should be conducted simultaneously or in case of appeal, they should be heard simultaneously – In matter of a criminal trial against any accused, distinctiveness of evidence is paramount in light of accused’s right to fair trial, which encompasses two important facets along with others i.e., firstly, recording of evidence in presence of accused or his Pleader and secondly, right of accused to cross-examine witnesses – Culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his Pleader’s presence and for which he did not get an opportunity of cross-examination, unless case falls under exceptions of law – Evidence recorded in a criminal trial against any accused is confined to culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for commission of same offence. (Paras 18, 25, 39 and 40)

(B) Customs Act 1962 – Sections 132, 135(1)(a)(ii) read with 135A – Recovery of huge quantity of sandalwood billet/sticks and Mangalore tiles – Reversal of acquittal by High Court – In a criminal appeal against conviction, appellate court examines evidence recorded by trial court and takes a call upon issue of guilt and innocence of accused – Scope of appellate court’s power does not go beyond evidence available before it in form of a trial court record of a particular case, unless Section 367 or Section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal – In present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for commission of same offence – Merely because seven witnesses produced by prosecution were same in both cases would not mean that evidence was identical and similar because in oral testimony, not only examination-in-chief but also cross-examination is equally important and relevant – High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials – High Court ought to have distinctly considered and dealt with evidence of both trials and then to decide culpability of accused persons – Once a common judgment is set aside for one appeal, it cannot be upheld for another appeal – There cannot be severance of judgment particularly when it arises in a criminal case, where rights of accused are as important as rights of a victim – It would be in fitness of things and in interest of parties that matters are remanded to High Court for a fresh decision in accordance with law. (Paras 37, 41, 42, 44 and 46)

Facts of the case:

Trial Court vide separate judgments and orders dated 23.05.2008 passed in C.C. No. 2 of 2003 and C.C. No.4 of 2004 under Sections 132, 135(1)(a)(ii) read with 135A of the Customs Act 1962, had acquitted all the six accused. However, the High Court, vide impugned judgment, proceeded to record conviction of all the six accused and awarded sentence to undergo imprisonment of one year and fine of Rs. 50,000/- each and in default to undergo further six months rigorous imprisonment. It accordingly allowed both the appeals. Submission is that the High Court proceeded to pass one common judgment in both the appeals arising out of two separate trials and two separate judgments but considered evidence of only one case and that too without disclosing of which case so as to record conviction of all the six accused in both the appeals.

Findings of Court:

All questions of law and fact would remain open before the High Court and the parties would be free to address the High Court on all issues both on law and facts.

Result : Appeals allowed.