TMI Blog2002 (3) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... wband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; mso-bidi-font-size:10.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;} <![endif]--> R Sodhi JJ. JUDGMENT R.S. Sodhi, J. 1. Shri P.V. Narasimha Rao and Shri Buta Singh have filed Criminal Appeal Nos. 638 of 2000 and 621 of 2000 respectively challenging the findings of the Special Judge holding them guilty of the charges framed against them while the Rastriya Mukti Morcha has filed Criminal Revision No. 33 of 2001 challenging the acquittal of Capt. Satish Sharma, Shri V. Rajeshwar Rao, Shri H.M. Revanna, Shri Ramalinga Reddy, Shri M. Veerappa Moilu, Shri D.K. Audikesavulu, Shri M. Thimme Gowda, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ursuant to that C.B.I. registered case R.C. No. 5(A)/96/ACU-VIII/C.B.I./N.D. against the persons named in the complaint. 3. Pursuant to the investigation conducted in Case R.C. Nos. 1(A)/96 to R.C. Nos. 5(A)/96-ACU-VIII/ C.B.I./N.D., prosecution sought to try Shri P.V. Narasimha Rao (hereinafter referred to as A.1), Capt. Satish Sharma (hereinafter referred to As. A.2), Suraj Mandal (hereinafter referred to as A.3), Shri Shibu Soren (hereinafter referred to as A.4), Shri Simon Marandi (hereinafter referred to as A.5), Shri Shailender Mahto (approval) (hereinafter referred to as A.6), Shri Buta Singh (hereinafter referred to as A.7), Shri V. Rajeshwar Rao (hereinafter referred to as A.8), Shri H.M. Revenna (hereinafter referred to as A.9), Shri Ramalinga Reddy (hereinafter referred to as A.10), Shri M. Veerappa Moily (hereinafter referred to as A.11), Shri D.K. Audikeshvulu (hereinafter referred to as A.12), Shri M. Thimme Gowda (hereinafter referred to as A.13), Shri Bhajan Lal (hereinafter referred to as A.14), Shri Ajit Singh (hereinafter referred to as A.15), Shri Ram Lakhan Singh Yadav (hereinafter referred to as A.16), Shri Ram Sharan Yadav (hereinafter referred to as A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion by giving of bribe to those members of parliament and acceptance of bribe by those members of parliament. In order to achieve the object of the conspiracy various participants played different roles at Delhi and Bangalore. Shri P.V. Narasimha Rao was the kingpin of the conspiracy. 5. It is alleged that hectic political activities to save the government started in July, 1993. Capt. Satish Sharma (A-2) took active role in the conspiracy and he mobilized and provided the funds for bribing the opposition members. It is alleged that at the relevant time, Capt. Satish Sharma was the Minister of Petrolem in the Government headed by Shri P.V. Narasimha Rao (A-1). Shri B.N. Safaya was his Additional Private Secretary. Shri B.N. Safaya during the period between April 1993 to May 1994 received substantial amounts on behalf of Capt. Satish Sharma from M/s Jindal Saw Pipes, M/s Videocon International Limited, M/s Essar Group of Companies, M/s Reliance Industries Limited and M/s Bindal Agro Industries. After receiving the money from those business houses, Shri B.N. Safaya used to inform Capt. Satish Sharma on telephone and then carry the suitcases containing money to Capt. Satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ashok Rao Deshmukh took them to the residence of accused V. Rajeshwar Rao (A-8), 7, Swaranamukh Apartments, Andhra Bhavan. V. Rajeshwar Rao (A-8) also confirmed about the message received by him from Shri P.V. Narasimha Rao and thereafter Shri Ashok Rao Deshmukh left the flat. It is alleged that Shri V. Rajeshwar Rao (A-8) had a separate conversation with Suraj Mandal (A-3) and made some offer to him. After said discussion, they came back to the room and thereafter J.M.M. M.Ps. left the residence of Shri V. Rajeshwar Rao (A-8). Suraj Mandal (A-3) told other J.M.M. M.Ps. (A-4 to A-6) that discussion with V. Rajeshwar Rao (A-8) was not fruitful as he was offering a meager amount and he suggested a direct meeting with the Prime Minister. In the evening of 26.7.93, all the four J.M.M. M.Ps., A-3 to A-6, collected at the residence of Shibu Soren (A-4). From there, they went to the residence of Shri Buta Sing hand he took those J.M.M. M.Ps. to the residence of Shri P.V. Narasimha Rao (A-1). It is further alleged that initially at the residence of Shri P.V. Narasimha Rao, talks regarding creation of Jharkhand Council took place and Shri P.V. Narasimha Rao (A-1) assured that he would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the residence of Suraj Mandal (A-3). 10. According to the prosecution, the money delivered at the residence of Suraj Mandal was the bribe money which was distributed by the four JMM MPs amongst each other and the said amount was deposited in Punjab National Bank, Naroji Nagar, New Delhi with the help of one Sushil Kumar, Chartered Accountant who was maintaining his bank accounts in the said branch. It is alleged that most of the aforesaid bribe money reached Punjab National Bank, Naroji Nagar Branch by the evening of 31.7.93, but since it was already late and counting of such a huge cash was impossible on that date, entire cash received in the branch on 31.7.93 was kept in the strong room. On the next day, i.e. 1.8.93 money was counted and various accounts were opened as per the instructions of JMM M.Ps. 11. It is alleged that on the basis of final counting a sum of ₹ 30 lakhs was deposited in the S.F. Account No. 17108 of Suraj was opened in the joint names of all the 4 JMM MPs (A-3 to A-6) with ₹ 30 lakhs. One joint S.F. Account in the name of four JMM MPs. (A-3 to A-6) was also opened with the deposit of ₹ 10,000/- in order to facilitate the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d V. Rajeshwar Rao (A-8). He (A-12) was also camping at Delhi from 24.7.93 to 29.7.1993. During said period, he had visited V. Rajeshwar Rao (A-8). Even on 26.7.93, he was seen at the residence of accused V. Rajeshwar Rao (A-8) by Shri Ashok Rao Deshmukh when he had visited said place for introducing four JMM MPs to Shri V. Rajeshwar Rao (A-8). Shri D.K. Audikeshvulu (A-12) also left for Bangalore on 29.7.1993 by evening flight of Indian Airlines. It is alleged that Shri D.K. Audikeshvulu is the owner of number of companies/firms under various names and address. 16. M/s Karnataka Breweries and Distilleries (P) Limited (hereinafter referred to M/s K.B.D.L.) is a major liquor manufacturing company. Shri D.K. Audikeshvulu (A-12) is the Managing Director of the said company. He is also one of the partners of M/s Sapthagiri Enterprises, which is also engaged in the business of manufacture and bottling of liquor. M/s KBDL is maintaining Current Account No. 448 with Canara Bank, R.M.V. Extension, Bangalore. M/s Sapthagiri Enterprises is also maintaining Current Account No. 446 with the same bank. The aforesaid two concerns are also maintaining accounts with Lakshmi Vilas Bank, main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent business commitments. The branch manager then contacted Shri V.A. Prabhu the then Gneral Manager, Circle Office, Canara Bank, Bangalore on telephone and requested for sanction of said temporary over-draft. Shri V.A. Prabhu obtained the approval on telephone and conveyed the sanction to Sheshadripuram branch after the banking hours. However, accused M. Themmegowda insisted for withdrawal of the whole amount on 30-7-1993 itself. Canara Bank, Sheshadripuram Branch, then arranged the money from cash chest, Canara Bank, R.M.V. Extension. As soon as the cash was received in the branch, Shri M. Themmegowda (A-13) issued cheques Nos. 959799 and 959798, both dated 30-7-1993 for ₹ 60 lakhs and ₹ 25 lakhs in favor of M/s. Ranganatha Group and M/s. Yellamma Enterprises. He also issued a self cheque No. 959800 dated 30-7-93 for ₹ 15 lakhs on the account of M/s. S.P.R. Group Holdings (P) Limited. The funds against the cheques issued in favor of M/s. Ranganatha Group and M/s Yellamma Enterprises were credited to the respective accounts by way of transfer. As soon as the said funds were credited to those accounts, Shri M.S. Chelvaraju, partner of M/s. Ranganatha Groups and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne hand bag in the taxi driven by Shri Roop Ram, whereas V.I.P. suitcases brought by Shri D.K. Audikeshvulu (A.12) they all left for Andhra Bhawan, where D.K. Audikeshvulu (A.12), H.M. Revenna (A.9) and Rama Linga Reddy (A.10) called on Shri V. Rajeshwar Rao (A.8) at Swaranamukhi Apartments Andhra Bhawan, New Delhi. After some discussion, they left for Hotel Claridges. It is further alleged that after making arrangement for the stay of H.M. Revenna (A.9), Ramalinga Reddy (A.10) D.K. Audikeshvuly (A.12) left for M/s. M.B.D.L. Guest House. The three V.I.P. suitcases and one handbag brought by H.M. Revenna (A.9), Ramalinga Reddy (A.10) were unloaded by Roop Ram at Hotel Claridges. 23. It is further alleged that accused Buta Singh (A-7) also visited Bangalore at the relevant time. He came back from Bangalore to Delhi on 30-7-1993 by same Indian Airlines Flight I.C.No. 404 in which Shri H.M. Revenna (A-9), Shri Ramalinga Reddy (A-10) and Shri D.K. Audikeshvulu (A-12) travelled. 24. It is further alleged that in the morning of 31-7-93 Roop Ram taxi driver reached Hotel Claridges. Shri Vijay Handa and Shri Harsharan Lal, PWs also reached three in the case of Shri Vijay Handa. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n accused Ajit Singh (A-15) in the morning of 26-7-93 and insisted for his share of ₹ 15 lakhs from the amount received by him from Bhajan Lal. Accused Ajit Singh (A-15) denied having received any amount from Bhajan Lal (A-14) and told Ram Lakhan Singh Yadav (A-16) that Bhajan Lal himself was a corrupt person who accused others of corruption. After the aforesaid incident, accused Ajit Singh (A-15) called for a meeting of MPs belonging to his party. During said meeting, he expressed his desire to vote in favor of no confidence motion against Congress (I) Government. This led to heated exchanges between Ram Lakhan Singh Yadav (A-16) and Ajit Singh (A-15) and both accused each other for hobnobbing and bargaining with Congress (I) Leaders. Thereafter, Ram Lakhan Singh Yadav (A.15) walked out of the meeting. Shri Ram Sharan Yadav, Roshanl Lal, Abhay Pratap Singh and Anadi Charan Dass namely (A-18 to A.20) as well as late Shri G.C. Munda also followed him. 27. It is further alleged that 7 M.Ps namely Ram Lakhan Singh Yadav, Ram Sharan yadav, Roshan Lal, Abhay Pratap Singh, Anadi Charan Dass, Hazi Gulam Mohd. Khan and G.C. Munda again assembled at the residence of Ram Lakhan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28-7-93 above referred 7 M.Ps led by Ram Lakhan Singh Yadav voted against no confidence motion and motion was defeated. 30. According to the prosecution, accused Ajit Singh sent Captain Dilawar Singh Sangwan to meet Hazi Gulam Mohd. Khan and Ram Sharan Yadav to persuade them to rejoin the Janta Dal(A). Both Haji Gulam Mohd. Khan and Ram Sharan yadav admitted before Captain Dilawar Singh Sangawan about receiving a payment of ₹ 20 lakhs in cash from Bhajan Lal. They also told him about promise of allotment of petrol pumps. 31. It is alleged that Bhajan Lal was camping at Delhi to pursue the object of conspiracy from 23-7-93 to 2-8-93, except of 26-7-93. During this period, he was in constant touch with P.V. Narasimha Rao (A-1), Captain Satish Sharma (A-2) and other accused persons. He also actively mobilized the funds before voting on no confidence motion and obtained ₹ 30/Rs. 40 lakhs from the office bearers of Saraswati Kunj House Building society for granting license to the society for colonization. It is also alleged that Bhajan Lal extended hospitality to Hazi Gulam Mohd. Khan and G.C. Munda at Hotel Rajanhs from 1-8-93 to 3-8-93 and paid the bill for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 12.80 lakhs during July to November, 1993 in South Indian Bank and State Bank of India, Delhi and Punjab and Sindh Bank and Central bank of India in Dehradun. he has also acquired a flat on 6.9.93 for a sum of ₹ 9 lakhs, out of which, he paid a sum of ₹ 5,51,000/- approximately till date. 35. It is further alleged that during the investigation of this case, in order to avoid detection, accused Suraj Mandal, Shibu Soren, Simon Marandi and Shailender Mahto, all JMM MPs (A-3 to A-6) in pursuance of criminal conspiracy have fabricated false document i.e. donation coupons, proceeding book and books of accounts with the intention to use those documents during the judicial proceedings or any other proceedings initiated in accordance with law before a public servant, so as to suggest that above referred amounts deposited in the bank accounts were the proceeds of donation received in favor of JMM Party. 36. On the aforesaid allegations, prosecution has filed three charges-sheets seeking to try above referred accused persons for having committed offences punishable under Sections 120-B IPC read with 193 IPC and Sections 7, 12, 13(2) read with 13(1)(d) of P.C. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution Bench of the Apex Court, accused Ram Lakhan Singh Yadav (A-16), Ram Sharan Yadav (A-17), Roshan Lal (A-18), Anadi Charan Dass (A-19), Abhay Partap Singh (A-20) and Hazi Gulam Mohd. Khan (A-21) were discharged. Charges under Section 120B IPC read with Sections 7, 12, 13(2) read with 13(1)(d) of P.C. Act, 1988 and substantive offences under Sections 7 and 13(2) read with 13(1)(d) of P.C. Act, 1988 against accused Suraj Mandal (A-3), Shibu Soren (A-4) and Simon Marandi (A-5) were dropped. Since the offence punishable under Section 193 IPC is a magisterial trial and it was allegedly committed much after the alleged transaction of bribing of MPs in furtherance of conspiracy, it was directed that separate charge sheet for offence punishable under Section 193 IPC be filed in the court of competent jurisdiction. 41. Charges against accused persons, namely, Shri P.V. Narasimha Rao (A-1), Captain Satish Sharma (A-2), Shri Buta Singh (A-7), Shri V. Rajeshwar Rao (A-8), Shri H.M. Revenna (A-9), Shri Ramalinga Reddy (A-10), Shri M. Veerappa Moily (A-11), Shri D.K. Audikesavulu (A-12), Shir M. Themmegowda (A-13) and Shri Bhajan Lal (A-14) were am,ended suitably and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s excluded from the ambit of Prevention of Corruption Act, 1988 for the reason that - he is not a public servant as defined under Section 2(SIC) of the Prevention of Corruption Act, 1988; and he is not a person under Clauses (a), (b) and (c) of Sub-section (1) of Section 19 of the Prevention of Corruption Act, 1988. 5. The Constitution Bench of the Supreme Court vide its judgment dated 17.4.1998 [(1988) 4 SCC 626] held that: We now set down the effect upon the accused of our finding. We have held that the alleged bribe-takers who voted upon the no confidence motion, that is Suraj Mandal, Shibu Soren, Simon Marandi, Shailendra Mahto, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh and haji Gulam Mohammed (Accused 3, 4, 5, 6, 16, 17, 18, 19, 20 and 21) are entitled to the immunity conferred by Article 105(2). D.K. Audikesavulu and M. Themmegowda (Accused 12 and 13) were at all relevant times private persons. The trial on all charges against them must proceed. When cognizance of the charges against them was taken, Buta Singh and H.M. Revanna (Accused 7 and 9) were not public servants. The question of sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him... 7. In view of the law enunciated by the Supreme Court, he learned trial Judge vide order dated 4.6.1999 dropped proceedings and charges under Section 120-B IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 framed against Shri Suraj Mandal, Shri Shibu Soren, Shri Simon Marandi, Shri Shailender Mahto, Shri Ram Lakhan Singh Yadav, Shri Ram Saran Yadav, Shri Roshan Lal, Shri Anadi Charan Das, Shri Abhay Pratap Singh and Shri Haji Gulam Mohd. Khan although the learned trial Judge ruled that charge under Section 193 IPC against Shri Suraj Mandal, Shri Shibu Soren and Shri Simon Marandi shall proceed. The trial for charges under Section 193 IPC against the aforesaid accused persons was separated and directed to be tried by a separate court. 8. Also following the Supreme Court judgment, an amended charge was framed on 20.7.1999 against the remaining accused. The charges framed were under Section 120-B IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 9. Learned counsel submitted that, inter alia, the question that needs to be adjudicated in this appeal is wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement can be considered. 12. Shri R.K. Anand, learned Senior Counsel appearing on behalf of the appellant, Shri P.V. Narasimha Rao, submitted that Shri Shailender Mahto, PW-1, could not have been made as an Approver and granted pardon as for the offence charged he could not have been prosecuted and punished in view of the immunity enjoyed under Article 105(2) of the Constitution nor statement of this accomplice be treated to be that of an ordinary witness as the same would be hit by Section 163 Cr.P.C. and Section 24 of the Evidence Act. He submitted tat if this witness is discarded, the Prosecution has no other material on which it can base its claim that a conspiracy was hatched by Shri P.V. Narasimha Rao, Shir Buta Singh and Shri Suraj Mandal to bribe JMM MPs to exercise their vote against the Motion in Parliament. 13. It was argued by learned counsel that the learned Special Judge has, in his judgment dated 29.9.2000, after recording the facts of the case, divided the entire case into three compartments. The first limb relates to he role played by Shri Bhajan Lal in offering and giving bribe to accused, Ajit Singh and the role played by him. The second limb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in or a privy to an offence. He drew my attention to the fact that PW-1, Shri Shailender Mahto, filed an application dated 16.3.1997 under Section 306 Cr.P.C. before the trial court on 17.3.1997. At that stage arguments on framing of charge were being addressed by counsel for the accused including that of the Approver. Earlier to moving the application on 17.3.1997, PW-1 had moved an application while he was in custody but when he was produced before the learned Metropolitan Magistrate, he declined to make such statement giving his reasons that he was being pressurized to do so. At the time when the Approver made a second application for grant of pardon dated 16.3.1997, he was being prosecuted for the offence under the Prevention of Corruptions Act before the Special Judge. The application for grant of pardon was dealt with under Section 5(2) of the Prevention of corruption Act which application was supported by the Prosecution. Consequently, the learned Special Judge allowed recording of statement under Section 164 Cr.P.C. which was recorded by the learned Metropolitan Magistrate, Shri Harish Dudani, on 22.3.1997 after due compliance with provisions of law. On 8.4.1997, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided immunity from prosecution to alleged bribe-takers who voted on 28.7.1993. It does not wash off or efface the crime, rather immunity presupposes the guilt or being concerned or being privy to the crime. He referred to the judgment of the Supreme Court in Jasbir Singh v. Vipin Kumar Jaggi and Ors. (2001 Crl.L.J. 3993) under the NDPS Act, the relevant portion thereof is as under: The underlying rationale of Section 64 is that the Government which is vitally interested in getting hold of the culprits, must be allowed to assess the strength of the evidence available to it and, if necessary, bolster its case with evidence of an accomplice. Therefore, the Section serves the same purpose as the grant of pardon to approvers under Section 307 Cr.P.C. The object of Section 64 being the same as Section 307, it should logically follow that it may be exercised at any time during the course of the trial. It is true that the words 'immunity from prosecution' have been used, but the phrase does not mean anything more than the power to withdraw from prosecution. That can be exercised at any time in the course of trial but before judgment is delivered. (para 28) 20. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in or privy to an offence. This must necessarily include a person arraigned before him. But it may possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. Learned Additional Solicitor General further submitted that pardon is not only granted to a person already charged for an offence but also to a person not charged for an offence just to remove the fear from his mind that the disclosure made by him before the court will not make him liable to be tried for the offence even henceforth. This is the raison detre of the pardon i.e. to remove even the remotest fear psychosis while making clean breast or guilt or conduct of unworthy nature. 22. An Approver need not inculpate himself in the offence. The words concerned to the offence does not mean that he must be a party to the offence. It shows the contours of Approver's being concerned and yet being a competent witness. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent this Approver, if mixed up with the transaction and if he be an accomplice, into the extent of guilt. This court, in ultimate result held that the statement so recorded shall be admissible in evidence. 26. The appellants along with others also filed Special Leave Petitions in the Supreme Court impugning the order dated 12.9.1997 of this court. The Special Leave Petitions were finally disposed of on 5.5.1999 after the constitution bench judgment dated 17.4.1998. It is important to note that the order dated 8.4.1997 of the trial court granting pardon to PW-1 was not interfered with by the Supreme Court and met the approval of the Supreme Court and it is not open to agitate the same at this stage once again. 27. While disposing of the Special Leave Petitions, the Supreme Court left it for the trial court to deal with other accused persons (other than the persons entitled for immunity under Article 105(2) of the Constitution) in accordance with law and so has allowed the trial to proceed ahead. Neither was any objection raised nor any clarification sought on the status of Approver by the appellants. The evidence already adduced by him during trial is hence admissible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Solicitor General that has been brought on record is that in the monsoon session of 10th Lok Sabha in 1993, a No Confidence Motion against the Govt. headed by the appellant, Shri P.V. Narasimha Rao was moved. The appellant's Government was short by 14 votes to win the No Confidence Motion and required the support of MPs of other parties. It is also undisputed that at the relevant point of time, appellant, Shri Buta Singh, was the person competent to deal with the bribe-takers being in a position of the Home Minister in the Government. There was a meeting of JMM MPs with appellant, Shri Buta Singh, and subsequently with the appellant, Shri Narasimha Rao. Discussions/bargaining took place for the purpose of buying over the votes of bribe-takers. The main aspect being the passing of money. Appellant, Buta Singh's trip to Bangalore and return to Delhi on the same day along with the other accused. Withdrawal of money from the Banks in Bangalore after the banking hours. Deposit of money in the bank accounts of 4 JMM MPs immediately after opening fresh accounts. Efforts to fabricate the evidence regarding the receipt of money of coupons at a subsequent stage showing back dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n India, - Ranbir Singh and Ors. v. State of Punjab). 36. Inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter, - Krishna Pillai Sree Kumar and Anr. v. State of Kerala). Exaggeration and falsehood in prosecution evidence on points which do not touch the core of the prosecution story are not be given undue importance, - Dharam Das and Ors. v. State of U.P.). (1973 SCC (Crl.) 765 37. Learned Additional Solicitor General also relied on a number of judgments of the Supreme Court in Inder Singh and Anr. v. The State (Delhi Administration), , State of Punjab v. Jagir Singh, Baljit Singh and Karam Singh , State of Himachal Pradesh v. Lekh Raj and Anr., , M. Narsinga Rao v. State of A.P., , State of W.B. v. Mir Mohammad Omar and Ors., 2000(2) SCC (Crl.) 1516, Pawan Kumar v. State of Haryana, , Yash Pal Mittal v. State of Punjab , Firozuddin Basheeruddin and Ors. v. State of Kerala, . 38. He submitted that once PW-1, Shri Shailender Mahto, the Approver, is a reliable witness, consequently both the appellants, namely, Shri P.V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. It is a surrender of the right of the State to prosecute the individual in the event of his being implicated in the crime by granting a pardon. The Supreme Court in The State v. Hiralal Girdhari Lal Kothari and Ors., has held that protection granted under Section 337 of the Code of Criminal Procedure (now Section 306/307 Cr.P.C. and Section 5(2) of the Prevention of Corruption Act), is a protection from prosecution, failure to comply with the condition on which the pardon is granted, removes that protection . In other words, the grant of pardon carries an imputation of guilt and an acceptance thereof. A pardon is an act of grace which exempts the individual, on whom it is bestowed, from prosecution/punishment that the law may inflict for the Act. A person to be entitled to pardon under Section 5(2) of the Prevention of Corruption Act, must be directly or indirectly concerned with or privy to the offence. Such persons should then make a full and true disclosure of the circumstances within his knowledge relating to the offence as also identify other persons concerned with the commission of the crime be they principal or abettors. The person, if does not make a complete and full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i who heard PW-1 at length and dictated a Press Note which was released at a Press Conference. The revelation shocked the conscience of every right thinking person while the wheels of criminal justice stood jammed. Even Shri Jethmalani, a Senior Advocate, except for deriving political mileage and media coverage showed no inclination to set into motion the investigative machinery. In any event, the powers that controlled the system at the highest level were themselves allegedly responsible for flouting the rule of law, public morality and parliamentary discipline. It took Shri Ravinder Kumar, an Advocate, to move the High Court by way of a writ petition to get an FIR registered. 45. Being seized of the matter, it fell to the lot of the judiciary to goad the unwilling investigative agency, (the CBI, to investigate the complaint of Shri Ravinder Kumar. Finally, a report under Section 173 Code of Criminal Procedure was placed before the trial court forming the basis of a charge against 21 persons who were arrayed as accused. At the stage of arguments on charge, PW-1, Shri Shailender Mahto, turned Approver. The standard of investigation and the material placed before the Court can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest of the case, to secure conviction. Merely because a limited protection is granted under Article 105(2) of the Constitution is no ground to disentitle a person from turning Approver. There may be other offences for which he may be prosecuted. 48. In this view of the matter, the testimony of PW-1 is admissible and can be relied upon as that of an Approver. In A. Devedran v. State of Tamil Nadu, , the question was of jurisdiction and, therefore, the Supreme Court held that the individual who could not be made an Approver for want of jurisdiction, stood discarded, his testimony cannot be used at all for any purpose. Such a statement cannot be treated as that of an ordinary witness as the same would be hit by Section 163 of the Code of Criminal Procedure and Section 24 of the Indian Evidence Act. This is not the case here. The statement of the Approver is admissible. 49. Now, coming to the question of reliability of PW-1, the Approver. His statement has been attacked on various grounds by learned counsel for the appellants, namely, his competence as a witness on account of contradictions, improvements, omissions and confessed lies. To appreciate the challenge of learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh further said that JMM should vote in favor of the Government during the No Confidence Motion. The Prime Minister said that he would personally call for the file from the Home Minister and would resolve the issue. However, this may take some time. However, till then, I would also do something for you. He said that whatever has been talked between Shri Buta Singh and Suraj Mandal, shall also be fulfillled. At that time, I could not understand the exact context of above. Thereafter, Suraj Mandal said that against our previous inclination to vote against, now we would vote against the No Confidence Motion. We all acted accordingly and voted against the No Confidence Motion. This saved the Government by two votes. In fact, Shri Buta Singh contacted us only after Shri Ajit Singh disappointed the Prime Minister. 53. In his confession application dated 16.3.1997, he states as under: On 26 July, 1993, the monsoon Session of the Parliament started. On the same day, the opposition parties moved a No Confidence Motion against the Government of Shri P.V. Narasimha Rao. Same evening, on the invitation of Shri Buta Singh, we all the 4 MPs namely Shibu Soren, Suraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be fulfillled. Thereafter we walked on foot up to the gate and from there Buta Singh went to his residence and we 4 MPs also came back. On the way back, I asked Suraj Mandal that what was talked separately between 3 of you. Then, Suraj Mandal told that talks for our benefit have taken place. On this, Simon Marandi intervened and said that Suraj you should state more elaborately as to what was talked, otherwise we will not vote. On this, Mandal said that be patient as talks of money have also taken place. However, how much money would be paid, is still not clear. I was dropped at 51, South Avenue. 55. in his statement before the Court as PW-1, this witness deposed as under: On the evening of 26.7.1993 at 7.00 P.M., accused Suraj Mandal rang me up on telephone and told me to come to the house of accused Shibu Soren at 17, Gurdwara Rakab Ganj Road. We all four members of JMM (Soren Party) had collected at the house of Shibu Soren. Suraj Mandal told us that we were required to go to the house of Shri Buta Singh. From the house of Shibu Soren, myself, Shibu Soren, Suraj Mandal and Simon Marandi went to the residence of Shri Buta Singh in Ambassador Car. Shri Buta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which has taken place between him, Buta Singh and the Prime Minister. Suraj Mandal replied Phayde ki baat hai . On this Simon Marandi said Suraj tum spasht batao nahi to hum vote nahin denge . On this Suraj Mandal told paise ke bhi baat hui hai, kitna paise milega abhi tai nahin hua . No conversation regarding payment of money, took place in my presence at the residence of Prime Minister in the aforesaid meeting at the residence of Prime Minister. We had a conversation with the Prime Minister and we told him that if he was ready to accept our demand for creation of Jharkhand Autonomous council we would support the government. It is correct that on 26.7.1993 Suraj Mandal rang me up. He told me on telephone to reach at the residence of Shibu Soren. Probably I might have stated to CBI during investigation that on 26.7.1993 Suraj Mandal came to my residence. In the evening of 26.7.1993 in pursuance of the message of Suraj Mandal, I visited the house of Shibu Soren. Perhaps I went to the residence of Shibu Soren on 26.7.93 at 7.00 P.M. in an auto rickshaw. At that time, I did not have a car. From the residence of Shibu Soren on the same day we went to the house of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Prime Minister are - he said that whatever has been talked between Shri Buta Singh and Shri Suraj Mandal, shall also be fulfillled implying thereby that a meeting had taken place between Shri Buta Singh and Shri Suraj Mandal in the absence of the Prime Minister. This meeting obviously was not at the house of the Prime Minister and from the evidence it appears that the meeting between Shri Buta Singh, Shri Suraj Mandal and the JMM MPs was regarding formation of the Jharkhand Council; money did not figure anywhere. 57. The confession statement dated 22.3.1997 is a clear improvement on his past statements where he has deliberately introduced two more elements i.e. separate meeting in separate room and also supports the separate meeting by saying that the Prime Minister said that whatever he has talked with Shri Suraj Mandal separately shall also be fulfillled. This is a material contradiction and gives an impression that these statements were Made at the behest of the Prosecution as a bargain for this witness being treated as an Approver. 58. Coming to the statement of PW-1 as Prosecution witness, there are material contradictions with his earlier statements. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the Approver is concerned, since he was admittedly not there in the meeting, he is not a co-conspirator in respect thereof and accordingly his statement is neither relevant nor admissible under Section 10 of the Evidence Act. In fact, the same is barred under Section 60 of the Evidence Act as it is only hearsay. Accordingly, the testimony of the Approver is liable to be rejected on this score. Reference may be had to , CBI v. V.C. Shukla Ors. , State of Gujarat v. Mohammed Atik and Ors. and , State v. Nalini and Ors. 60. It is the law of evidence that the story of a person especially of the Approver must be consistent and logical. Therefore, omissions and contradiction s cannot be overlooked and statement of the Approver could be his by Section 155 of the Indian Evidence Act as the testimony stands impeached and discredited. There are material contradictions, improvements and omissions regarding the meeting on 24/25/.7.1993 between the JMM MPs and Shri Ajit Singh. there are material contradictions and improvements regarding the talks between Captain Satish Sharma and Shri Simon Marandi, also regarding meeting between the JMM MPs and Shri Ashok Rao Deshmukh on 25.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i and of Shri Atal Bihari Vajapayee into the witness box. the very fact that the prosecution, knowing its case fully well did not deliberately examine Shri Atal Bihari Vajpayee or Shri Jethmalani as prosecution witnesses, whose that this introduction by the Approver of the close door meeting was merely a red hearing To give further instances of the unreliability of PW-1, he is also a self-confessed liar admittedly making false statements. He states my statement to CBI during investigation as well as statement dated 29.2.1996 in the Parliament had no relation with truth . He further admits I did not tell the CBI about meeting with Shri Narasimah Rao and Shri Suraj Mandal in the separate room. I must have concealed this fact from CBI before recording my aforesaid statement. I was advised by CBI Officers to narrate the truth. It is correct that some other CBI officer recorded my statement on 20.6.1996. He thoroughly examined me for about three hours. I do not remember if on 20.6.1996, I did not tell the Investigating Officer about separate meeting between PM, Buta Singh and Suraj Mandal in a separate room. Further, he admits that I do not remember if during my interrogation dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test, which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroborations. This test is special in the cases of weak or tainted evidence like that of the approver . 63. Reference may also be had to Alil Mollah and Anr. v. State of W.B. where the Court has held that : conviction can be based on the testimony of a single eve wetness provided that Court finds from the scrutiny of his evidence that if he is wholly reliable wetness. Where, however, the Court is of the opinion that the single eye witness is only partly reliable, prudence requires that corroborations of his testimony in material particulars should be sought before recording conviction. 64. The statement of PW-1 is being sought to be corroborated by his statement under Section 164 Code of Criminal procedure. Such corroboration is impermissible. The statement under Section 164 Code of Criminal Procedure cannot be used to corroborate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iest occasion or when it would have been natural for him to disclose, does amount to contradiction (Section 162 Cr.P.C. Explanation). In Mohd. Hussain Umar Kochra etc. v. K.S. Dalipsinghji and Anr. etc., , the Supreme Court has held that combined effect of Sections 133 and 144, Illustration B, is heat though a conviction based upon accomplice evidence is legal, the Court will not accept such evidence unless it is corroborated in material particulars, the corroboration must connect the accused with the crime. It may be direct or circumstantial. It is not necessary that corroboration should confirm all the circumstances of the crime. It is sufficient if the corroboration is in material particulars. Corroboration must be from an independent source. One accomplice cannot corroborate the to , Bhuboni Sahu v. The King, lays down the statement made by an Approver under Section 164 Code of Criminal Procedure plainly does not amount to corroboration in material particulars which the courts require in relation to evidence of an accomplice. An accomplice cannot corroborate himself. Tainted evidence does not lose its taint by repetition. Criminal Revision Petition No.33 of 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to the JMM MPs to save the Government with the assurance that whatever Shri P.V. Narasimha Rao had promised shall be fulfilled. PW-1 has also deposed to the effect that Shri Rajeshwar Rao told them that they would be paid rupees fifty lakhs each, a petrol pump and a plot in HUDA. He has also stated that Shri Ram Lakhan Singh Yadav was going to join Congress. This witness has also deposed receiving of bribe money and the manner in which it was deposited in the Punjab National Bank. He has described the happenings of 2.4.1996 at Ranchi Airport when his signature was obtained in the Minute Book of the JMM party on a back dated document, the purpose being to create evidence regarding printing of party coupons for collecting party funds although in 1993 when he was the General Secretary of his party no books of accounts were maintained. In fact, no meeting of the Executive of the Central Committee of JMM ever took place in Delhi. 68. Learned counsel further submitted that PW-4, Capt. Dilawar Singh, who was cross-examined by the Public Prosecutor, has referred, amongst others, to Capt. Satish Sharma, Shri Ajit Singh, Shri Bhajan Lal, Shri Shibu Soren, Shri Suraj Mandal, Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Haryana and Shri Veerappa Moily was the Chief Minister of Karnataka. It is clear that all these Chief Ministers were put on the job to muster sufficient number of MPs to defeat the No Confidence Motion. PW-86, Raj Kumar Jain, has supported the testimony of PW-1, Shri Shailender Mahto since he neither admitted nor denied the questions put to him. The statement of PW-77, Shashi Ruia, tallies with the statement of PW-74, B.N. Safaya, which he gave to the CBI. The conspiracy to collect money is proved by the fact that money was available with Shri P.V. Narasimha Rao to keep his Government in power and all the accused persons were part of that conspiracy. The trial court erred in not noticing that circumstantial evidence existed. 70. Learned counsel submitted that PW-60, Padmanabha Rao, Chief Manager of Canara Bank, Bangalore, proved withdrawal of rupees one crore on an application signed by Shri M.Thimme Gowda. This amount was paid in cash against three cheques. Shri Thimme Gowda did not lead evidence to show how the cash withdrawal was utilized by him or his firm. Learned counsel, therefore, submitted that benefit of doubt given in the case of acquitted accused is fanciful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onverting a finding of acquittal into one of conviction and that makes ti all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when ti cannot itself directly convert a finding of acquittal into one of conviction. This places limitation on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be; where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court. As stated not one of these points which have been laid down by this Court was covered in the present case. In fact on reading the judgment of the High Court it is apparent to us that the learned Judge has reweighed the evidence from his own point of view and reached inferences contrary to those of the Sessions Judge on almost every point. This we do not conceive to be his duty in dealing in revision with an acquittal when Government has not chosen to file an appeal against it. In other words, the learned Judge in the High Court has not attended to the rules laid down by this Court and has acted in breach of them. 75. In the present revision petition, none of these points, which have been laid down by the Supreme Court, arise. The Supreme Court has further held in Khetra Basi Samal and Anr. etc. v. State of Orissa etc., , that : 10. This Court has had to examine the jurisdiction of the High Court under this Section on several occasions. In D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court or where the acquittal is based on a compounding of the offence, which is invalid under the law. 12. It may be that a case not covered by any of the contingencies mentioned above may still arise. But, where, as here, the appeal court (the High Court in this case) has set aside the order of acquittal almost entirely on the ground that the Magistrate should not have disbelieved the three eyewitnesses, viz. P.Ws. 1, 2 and 5, the case clearly falls within the contingencies mentioned in the above decision of this Court. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a flagrant miscarriage of justice. As mentioned earlier, Sub-section (4) of Section 439 frobids a High Court from converting a finding of acquittal into one of conviction by an indirect method of ordering retrial when the High Court itself cannot directly convert a finding of acquittal into a finding of conviction. The High Court, in our opinion, has missed these very important limitations on its power to set aside the findings of acquittal in revision which could be done only in very exceptional circumstances. In the case on hand, the High Court was not justified in considering the evidence in such detail if it was really going to order a retrial. Such a detailed consideration of evidence and an expression of opinion about the guilt of the accused, in our opinion, has really loaded the dice against the accused when the case goes back for retrial. Much stress has been laid by the High Court that though substantive charges had been framed against the accused read with Section 34 or alternatively with Section 149 IPC, the Trial Court has not recorded nay finding in this regard. Here again, the High Court's view is erroneous. We have already referred to the finding recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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