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IN the HIGH COURT of JHARKHAND at RANCHI Cr. Appeal (S.J.) No. 668 of 2018 ---Lalu Prasad @ Lalu Prasad Yadav ---Appell

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IN the HIGH COURT of JHARKHAND at RANCHI Cr. Appeal (S.J.) No. 668 of 2018 ---Lalu Prasad @ Lalu Prasad Yadav ---Appell 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 668 of 2018 ---- Lalu Prasad @ Lalu Prasad Yadav --- --- Appellant Versus The State of Jharkhand through CBI (AHD) --- --- Respondent --- CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH --- For the Appellant: M/s Kapil Sibbal, Chittaranjan Sinha, Sr. Advocates Prabhat Kumar, Adit S. Pujari, Debarsis Mandal, Advocates For the Respondent: M/s. Rajiv Sinha, A.S.G.I, Rajiv Nandan Prasad, Niraj Kumar, Advocates --- Reserved on: 04.01.2019 Pronounced on: 10/01/2019 --- Aparesh Kumar Singh, J: Heard learned Senior Counsel for the appellant and learned A.S.G.I representing the C.B.I on the prayer for suspension of sentence made through I.A. No. 11049/2018 2. Appellant stands convicted in connection with R.C. Case No. 38(A)/1996-Pat vide impugned judgment dated 19.03.2018 and order of sentence dated 24.03.2018 passed by learned Additional Judicial Commissioner-I-cum Special Judge-VII, CBI (AHD Scam), Ranchi whereby he has been convicted and sentenced to undergo R.I. for seven years for the offences under Sections 120B r/w sections 420, 467, 468, 471 and 477A of the Indian Penal Code and a fine of Rs. 30,00,000/- and in default in payment thereof, S.I. for one year separately. He has been further convicted and sentenced to undergo R.I. for seven years for the offences under Sections 13(2) r/w Section 13(i) (c) (d) of Prevention of Corruption Act and a fine of Rs. 30,00,000/- and in default in payment thereof, S.I. for one year separately. Both the sentences have been ordered to run consecutively and not concurrently. 3. Learned Senior counsel for the appellant submits that conviction has been recorded against the appellant on the charge of criminal conspiracy under section 120-B of Indian Penal Code and for the offences under the Prevention of Corruption Act. He has not been convicted independently for the substantive offence under other provisions of Indian Penal Code. The Hon’ble Supreme Court has observed in the case of the same appellant i.e. Laloo Prasad @ Laloo Prasad Yadav Versus State of Jharkhand and analogous case [(2002) 9 SCC 372] earlier that the conspiracy alleged in respect of all these cases are the same. The evidence in the nature of deposition of witnesses and documents exhibited in R.C. Case No. 20(A)/996 have been adopted verbatim and exhibited in the instant case also. However, on his conviction in R.C. Case 2 No. 20(A)/996, the Apex Court had been pleased to grant him the privilege of suspension of sentence on having served about 12 and ½ months of custody out of the sentence of five years imposed upon him. For the conviction recorded in the instant case on the same set of evidence, the appellant should be enlarged on bail as he has remained in custody approximately 19 months and odd days by now. The fact that this court has been pleased to admit this appeal, in itself, is indicative of a prima facie case made out by the appellant in his favour. Charges of criminal conspiracy have not been established either by any direct evidence or circumstantial evidence, since on the same charge of criminal conspiracy, other public servants including Jagannath Mishra, the then Leader of Opposition, Jagdish Sharma, the then Chairman, Public Accounts Committee, Dhruv Bhagat, Chairman, PAC, Mahesh Prasad, Secretary, Animal Husbandry Department, Vidya Sagar Nishad, Minister, AHD and R.K. Rana have been acquitted by the learned court. Peculiarly, the appellant who was the Chief Minister, stands convicted for the conspiracy, though other public servants who formed part of the link of conspiracy in the CBI charge sheet, have been acquitted. There is no evidence placed on record to indicate that such public servants who stand convicted being the Secretary or officials of the Department, ever reported to the appellant. 4. Relying upon the opinion rendered by the Apex Court in the case of State (NCT of Delhi) Versus Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600, para-97 thereof], it has been submitted that the conspiracy is seldom an open affair and mostly are proved by circumstantial evidence. The rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Court should not allow suspicion to take the place of legal proof. Learned Trial Court has convicted the appellant relying upon inter-alia, (a) statement of approvers which is self exculpatory in nature; (b) alleged proximity of the appellant with the ‘kingpins’; and (c) the alleged failure on the part of the appellant to initiate investigation into the scam in order to shield the scam accused. However, cross-examination of the prosecution witnesses during trial has shown how allegations were false, misconceived and unsubstantiated from the record. It has been submitted that the statement of approvers which are self exculpatory, could not be relied upon as substantive evidence. The court 3 cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. He has placed reliance upon the opinion of the Apex Court contained in para-11 & 12 of the report in the case of Haricharan Kurmi and Jogia Hajam Versus State of Bihar [AIR 1964 SC 1184]. In this light, findings of conviction recorded on the statement of approvers like Dipesh Chandak and R.K. Das by the learned Trial Court, are flawed. CBI failed to adduce evidence of independent witnesses which the learned Trial Court ought to have tested aliunde before recording conviction on the statement of approvers. 5. Learned Senior Counsel has referred to the statement of the prosecution witnesses R.K. Das and Ravi Shankar Kumar Sinha to dispel the perception gathered by the learned Trial Court about the alleged proximity of the appellant with Dr. Ramraj Ram and Dr. S.B. Sinha, ‘Kingpins’ of the scam. He submits that Dr. Ramraj Ram was appointed as Director, Animal Husbandry Department by the then Chief Minister Satyendra Narayan Singh on 31.07.1989. He continued on the post by virtue of the order of status quo passed on 08.03.1991 by the Hon’ble Supreme Court in S.L.P.(C) Nos. 2271/91 and 2306/91. The said SLP was dismissed in 1996. Evidently, appellant could not be attributed any role in respect of the post hold by Dr. Ramraj Ram. He submits that the statement of these witnesses themselves shows that Dr. S.B. Sinha, the alleged ‘Kingpin’ in the Animal Husbandry Department who was going to superannuate on 31.12.1993, was recommended for extension of service for two years by the Director, AHD, the State Minister and also the co- accused Jagannath Mishra, but the appellant had granted extension of service for only one year. It was also approved by Council of Ministers on 19.03.1995 and Cabinet on 13.06.1995.The Finance Department appears to have objected to the extension on 13.01.1994 which was overruled on 21.12.1994 by the appellant. It had come in the evidence that several persons were granted extension of their services, as per the prevalent practice in Bihar under the relevant provisions i.e. Rule 73 and 75 of the Service Code. The Vigilance Department (AHD) had given clean chit to Dr. S.B. Sinha and there was no adverse report pending against him at the time extension was granted. The learned Trial Court however proceeded on a misplaced assumption in treating the appellant as close to these persons. 4 Learned Senior Counsel has refuted the findings of the learned Trial Court that the appellant failed to initiate investigation into the scam in order to shield the scam accused. He submits that it was under the orders of the appellants that 41 FIRs were registered D.D.O wise. The CBI took over the investigation into the alleged scam and filed charge sheet. Appellant had ordered registration of FIRs on 31.01.1996 upon being apprised of the fraudulent withdrawals at Dumka Treasury in the months of November and December 1995. There was no information available with the Finance Department about the fraudulent withdrawals prior to 1995, even as per the statement of the prosecution witnesses such as Phuleshwar Paswan and V.S. Dubey. 6. It is submitted that the appellant has not been charged under any substantive offence under IPC but has been charged and convicted with criminal conspiracy read with allied sections of IPC. However, in respect of the offences under the P.C. Act, the appellant was acquitted in the disproportionate assets case which evidently took away the basis of the allegation under the P.C. Act. There is no evidence of meeting of minds of the appellant with the other co-accused – either direct or circumstantial. As such, conviction of the appellant in the instant case is erroneous, more so when other public servants who formed part of the link of this conspiracy in the CBI charge sheet, stood acquitted on the basis of the same evidence.
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