Morlidhar, J. - (1.) THE two applicants, Sita Ram and Roshan, have been convicted under Sec. 60 (2), Excise Act, and sentenced to six months' R. 1 and a fine of Rs. 2000/-, in default three months' further rigorous imprisonment.
(2.) THE prosecution case was that on 11-5-1978 a police party on patrol duty in village Barkhera, P. S. Kashipur, district Nainital, located two Bhattis preparing illicit liquor in operation in a sugarcane field. THE two applicants were operating one of these while Lekhraj and Dhyan Singh were operating the other. THE police party was able to capture applicant Sita Ram, Lekhraj and Dhyan Singh on the spot, but Roshan applicant managed to escape. THE party also recovered the paraphernalia of distilling liquor including some distilled liquor. THE persons operating each Bhatti were prosecuted in separate cases. THE Magistrate per his judgment dated 12-2-1980 recorded conviction in both the cases similarly sentencing the two sets of the accused. Separate appeals were filed against these convictions. THE applicant's appeal was dismissed by the 4th Additional Sessions Judge per his order dated 30-6-198)), but the appeal of the other set of accused (Lekhraj and Dhyan Singh) came to be transferred to the III Additional Sessions Judge and the judgment filed in the revision shows that on 14-7-1980 that appeal was allowed and that set of the accused acquitted. Learned counsel for the applicants has attacked the finding of conviction on merits but this is a concurrent finding of fact recorded by courts of fact below and no infirmity in it that could justify interference in revision could be pointed out. Therefore, the applicants cannot succeed on this ground. Learned counsel then pressed the argument that in view of the acquittal in the connected case the principle of consistency should lead this Court to interfere in revision and quash the conviction of the applicants also even though this conviction had been recorded prior to the acquittal in the connected appeal. In this connection it is emphasised thai; although the two cases were tried separately the judgments show the witnesses examined were the same. Moreover, in its very nature the evidence about participation of the accused must have been more or less identical because both the cases arose out of the same transaction. Reliance has been placed upon Dtwan Singh v. State, 1965 AWR 113 where it was held that if two sets of persons are prosecuted separately on the same charges for offences committed in the same transaction on the same evidence and one accused is acquitted the conviction of others would be anomalous and tend to shake the confidence of people in the administration of justice. Holding that the principle of stare decises applies tin such a case the learned Judge set aside the committal order. Reference was also made to Ashok Kumar v. State of Punjab, 1976 Unreported Judgments SC. In that case one Kewal Krishna was convicted under Sec. 326/34 but acquitted of the graver charge under Sec. 302/34. The co-accused against whom the case was more or less the same was convicted under Sec. 302/34. The Supreme Court observed that as there had been no appeal in Kewal Krishna case that conviction under Sec. 326/34 must stand. Their Lordships went on to observe : "And if that be so consistency compells us to reach the conclusion that the appellants also must on the same basis be convicted under Sec. 326/34 instead of Sec. 302/34". The Supreme Court, however, does not appear to have extended the principle to the question of sentence. There is no discussion of the matter but the report shows that while Kewal Krishna had been sentenced only to 2 years' R. I. the Supreme Court observed that this sentence was ridiculously low "but we can do nothing about it as that case is not before us. We can only ensure that proper sentence is passed in the case before us." Their Lordships passed a sentence of 6 1/2 years' R. I. against Ashok Kumar which had already been undergone.
(3.) THE learned Governments Advocate questioned the applicability of the principle of consistency in separate cases. He also pointed out that if applied it would only call for interference with the appellate judgment of acquittal in the case of Lekhraj and Dhyan singh which was delivered subsequent to the applicant's conviction by the lower appellate court. The question is not free from difficulty. The principle of res judicata applicable to some extent even to criminal cases cannot apply where the parties are not the same. The principle of stare decisis also does not appear to be the proper description for the considerations impelling uniformity as amongst accused similarly placed. The true reason lies in public policy which demands uniformity and objectivity of standards in assessment of evidence and judicial decisions so that administration of justice may inspire: confidence. Therefore, the need to accord similar treatment to similarly placed accused In cases where it suits them this principle is invoked on behalf of the accused as the principle of parity. The question arises in a critical form where the charges and evidence against different accused persons or sets of accused persons are almost the same. If one judge deals with both sets,of the accused in the same case or in different cases there is an inherent compulsion to apply a uniform standard and avoid different decisions in case of similarly placed accused for otherwise the decision would immediately be open to criticism of irrationality and arbitrariness. The difficulty arises when different similarly placed accused whether in the same or different cases are dealt with by different judges. How far, if at all, is the principle of parity to be a guide for the court where it is at variance with its own view of evidence. Such questions arise not only in trials but also in miscellaneous matters notably bail applications. I would confine the present discussion to trial decisions though apparently similar principles may be valid for miscellaneous proceedings like bail applications also.;