An acquittal and some questions

Published : Mar 30, 2002 00:00 IST

The Delhi High Court acquits former Prime Minister P.V. Narasimha Rao and his Cabinet colleague Buta Singh in the Jharkhand Mukti Morcha bribery case on the grounds that the testimony of the approver, Shailendra Mahato, lacks credibility.

ON March 15, both Prime Minister Atal Behari Vajpayee and his predecessor P.V. Narasimha Rao heaved a sigh of relief, though for different reasons. Vajpayee managed to ensure the peaceful conduct of shila daan at Ayodhya and saved his government in Delhi. Narasimha Rao, during whose prime ministership the Babri Masjid fell to belligerent Hindutva forces, was acquitted by the Delhi High Court in the Jharkhand Mukti Morcha (JMM) bribery case.

A trial court had convicted Narasimha Rao in the case in October 2000. The Judge of the trial court, Ajit Bharihoke, had found both him and his Home Minister, Buta Singh, guilty of entering into a criminal conspiracy between themselves and with others to abet Members of Parliament to demand and accept bribes in lieu of support to the minority Congress(I) government headed by him during the voting on a no-confidence motion (Frontline, October 27, 2000). The motion moved by the Opposition in the Lok Sabha on July 26, 1993, was provoked by several factors, including the demolition of the Babri Masjid on December 6, 1992. Both Narasimha Rao and Buta Singh were sentenced to three years' rigorous imprisonment and a fine of Rs.2 lakhs each under Section 12 of the Prevention of Corruption Act and Section 120-B of the Indian Penal Code. They went in appeal, and the Delhi High Court stayed the sentence.

The High Court's judgment, delivered by Justice R.S. Sodhi, allowed the appeals of Narasimha Rao and Buta Singh and set aside the conviction and sentence by the trial court. The court dismissed the appeal of Rashtriya Mukti Morcha (RMM) convener Ravinder Kumar, whose complaint to the High Court in 1996 led to the Central Bureau of Investigation (CBI) seeking the prosecution of the former Prime Minister and others involved in the case. The RMM had challenged the trial court's acquittal of former Union Ministers Captain Satish Sharma and Ajit Singh, former Congress(I) member of the Rajya Sabha V. Rajeshwar Rao, former Karnataka Chief Minister M. Veerappa Moily and two of his Cabinet colleagues, Ramalinga Reddy and H.M. Revanna, former Haryana Chief Minister, Bhajan Lal and two businessmen, D.K. Adikesavalu of Karnataka Breweries and Thimme Gowda of the SOT Group.

EARLIER, the trial court had concluded that Narasimha Rao and Buta Singh had abetted and played an active role in the commission of the offence of public servants taking bribes, that is, JMM MPs Suraj Mandal, Shibu Soren, Simon Marandi and Shailendra Mahato. In reaching the conclusion, Judge Bharihoke relied mainly on the testimony of the approver, Mahato, and circumstantial evidence.

In his testimony, Mahato stated that on the evening of July 26, 1993, the four MPs went to the residence of Buta Singh, who suggested a meeting with Narasimha Rao. Buta Singh admitted that he had accompanied the MPs to Narasimha Rao's residence.

Mahato had stated that there was a discussion at Narasimha Rao's residence on the creation of an autonomous council for Jharkhand. Then Narasimha Rao, Buta Singh and Suraj Mandal had a closed-door meeting. Later, Narasimha Rao sought the support of the JMM MPs for his government and indicated that all promises made to Suraj Mandal would be fulfilled. Suraj Mandal told Mahato that his conversation with Narasimha Rao was to the benefit of the JMM MPs. He also disclosed, on the insistence of Marandi, that there were talks on the mode of payment. However, according to Mahato's statement, the amount was not specified.

In his judgment, Justice Sodhi raised doubts about the reliability of Mahato's testimony. He said: "The trial court, while appreciating Mahato's evidence, has chosen to disregard his statement qua the co-accused by taking recourse to the non-availability of material to corroborate the statement. However, while dealing with the case of Buta Singh and Narasimha Rao, the trial court has found corroboration which was common to all the accused." At best this would have been a valid reason why the acquittal of the co-accused by the trial court should have been reversed. However, Justice Sodhi ruled that it would not be open for the High Court to set aside the trial court's order acquitting the co-accused merely because another opinion was possible on the same evidence, which the trial court found could not corroborate the guilt of the co-accused.

However, Justice Sodhi found Mahato's testimony unreliable mainly because Mahato made material contradictions/improvements from stage to stage in the trial. To support his conclusion, Justice Sodhi pointed to the inconsistencies in the press statement issued by Mahato on February 26, 1996; his confession application dated March 16, 1997; his confession statement dated March 22, 1997; and his deposition in court from November 14 to 28, 1997.

The inconsistencies include the following:

* While in the Press release there is no mention of Buta Singh's invitation to the JMM MPs, in the confession application Mahato has included it. However, there is no mention of going to the Prime Minister's house.

* In the confession statement references to both the invitation and the visit to the Prime Minister's house are omitted.

* While in one version Mahato says that the JMM MPs along with Buta Singh went inside and met the Prime Minister, in another he says that initially only Buta Singh was called inside and they were called later.

* In the press release, prepared at the urging of Vajpayee and Ram Jethmalani, Mahato did not speak of the closed-door meeting between Suraj Mandal, Buta Singh and the Prime Minister. However, in his confession statement, Mahato introduced this fact for the first time and supported it by saying that the Prime Minister said that whatever he had told Suraj Mandal separately shall also be fulfilled. Justice Sodhi found this to be a material contradiction and said that it gave an impression that the statements were made at the behest of the prosecution, the CBI, as a bargain for treating Mahato as an approver.

* In the press statement, Narasimha Rao has been quoted as having said that whatever had been discussed between Buta Singh and Suraj Mandal shall also be fulfilled. Justice Sodhi interpreted this to mean that a meeting had taken place between Buta Singh and Mandal in the absence of the Prime Minister, and that that meeting was "obviously" not held at the house of the Prime Minister. Moreover, "from the evidence it appears that the meeting between Buta Singh, Suraj Mandal and the JMM MPs was regarding formation of the Jharkhand Council, and that money did not figure anywhere".

However, to a layperson, it appears a far-fetched and unsustainable interpretation of Mahato's press statement. Apparently, the inconsistencies and omissions found by Justice Sodhi appear to be minor and as not having a bearing on the substance of Mahato's allegation, which has remained the same on all the occasions.

In fact, if a prosecution witness is expected to be absolutely consistent in recalling the exact sequence of events associated with a crime, no witness can be reliable. After all, human memory is not wholly infallible. Hence observers say that what is relevant during the trial is the confession statement and the depositions in the court by the witness. Even if one assumes that the closed-door meeting of Narasimha Rao, Suraj Mandal and Buta Singh had not taken place, the substance of Mahato's allegation remains. Moreover, seen in the context of circumstantial evidence - in the form of deposits in the bank accounts of the MPs - proved beyond doubt by the prosecution, Mahato's testimony is reliable.

Justice Sodhi reached the conclusion that even if it was assumed that a separate meeting between Narasimha Rao, Buta Singh and Suraj Mandal took place in a separate room, it was an independent conspiracy among the three, and only one out of the three could be a relevant witness under Section 10 of the Evidence Act. However, observers say that what is important is not to see the alleged closed-door meeting in isolation from the rest of the sequence of events narrated by Mahato. After agreeing that Mahato had in a valid manner been granted pardon and the status of an approver by the trial court, Justice Sodhi said Mahato was not a co-conspirator because he was not present at that closed-door meeting, and that therefore his testimony was not admissible under the Evidence Act. Apparently, Justice Sodhi overlooked the fact that Buta Singh, by his own admission and by the admission of Narasimha Rao before the trial court, accompanied the JMM MPs to the Prime Minister's residence.

The trial court had held that Mahato's testimony was fully corroborated by the statements of the officers of the Punjab National Bank (PNB) and the records of the bank. Bharihoke held that Mahato could not be treated as a wholly unreliable witness. Relying on the testimony of officers of the Nauroji Nagar (New Delhi) branch of the PNB and an examination of the bank's records, Bharihoke concluded that on August 1 and 2, 1993, Rs.1,62,80,000 was deposited in various accounts in the names of the four JMM MPs and their family members and also in a joint account of the MPs. Mahato claimed that the MPs were offered the bribe so that they would vote against the no-confidence motion. The trial court found Mahato's version credible because the main beneficiary of the defeat of the motion was Narasimha Rao.

However, the High Court held that the money deposited in the bank was not connected with Narasimha Rao and Buta Singh. It is true that the CBI failed to establish the actual source of the money and the person or persons who delivered it to Suraj Mandal. Yet, circumstantial evidence made the trial court reach the following conclusion: "It does not appeal to reason that anyone else except the main beneficiary might have paid or caused to be paid the bribe amount to the JMM MPs unless he was asked to do so by the main beneficiary, that is, the accused P.V. Narasimha Rao, and unless he was given an assurance that he would be awarded or compensated subsequently."

IN 1998, a five-member Constitution Bench of the Supreme Court, in a split decision, upheld the immunity enjoyed by MPs from legal proceedings for their speeches or vote in Parliament. The majority decision, delivered in response to a petition filed by some of the accused in the JMM bribery case, meant that all those who cast their votes in the Lok Sabha, including the bribe-takers in the JMM case, enjoyed the protection of Article 105. However, bribe-givers, even if they were MPs, could be prosecuted. The Supreme Court has referred to another Constitution Bench a public interest petition seeking its directions on the correctness of the judgment.

The testimony of the witness or approver is crucial to achieve conviction. If the appellate court doubts the motives of the witness on flimsy grounds and rejects his testimony, no witness will be ready to help the prosecution in lieu of pardon. Apparently, Justice Sodhi's finding that Mahato added to his earlier version of the sequence of events merely in order to seek pardon, and hence he was an unreliable witness, is hardly convincing. Moreover, Justice Sodhi's dismissal of the circumstantial evidence in support of Mahato's testimony would hardly encourage prosecution to go after the guilty.

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