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"............Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others......,"

10. Thus the statements of the aforesaid witnesses are wholly insufficient to prove that Rs. 5 lacs were paid to Shri Sharad Yadav in accordance with the entry made in sheet No. 8 (MR-72/91).

11. Learned Special Judge has also relied upon the extra judicial confession alleged to have been made by Shri Sharad Yadav before the media persons, namely, Shri Rajat Sharma and Shri Vikram Aditya Chandra. On 20.8.1994, Shri Rajat Sharma, the then Director Programming of ZEE T.V., recorded the interview of Shri Sharad Yadav, which was telecasted on 28.8.1994. In the said interview Shri Sharad Yadav had admitted having received a sum of Rs. 3 lacs from one Jain. Similarly, on 19.2.1995, Shri Sharad Yadav had also admitted the said fact in an interview recorded by Shri Vikram Aditya Chandra, Special Correspondence New Delhi Television. The said interview was also telecasted on Doordarshan in its programme 'Tonighf on 18.1.1996.

"It not infrequently happens that (an accused) in making a statement, though admitting his guilt upto a certain extent, puts greater blame on the (co-accused) ............ In such a case the accused would have a right to have the whole statement read and could, with good reason, complain if the prosecution picked out certain passages and left out others."

17. Bearing in mind the said principles I have to examine these two video recorded interviews of Shri Sharad Yadav to see whether the requirements there described are satisfied. As noted earlier, the gravamen of the charge against Shri Sharad Yadav is that he received Rs. 5 lacs from Jain brothers as illegal gratification. It is pertinent to mention that there is no proof of the payment of the said amount to Shri Sharad Yadav or why it was paid, aliunde in the case. The question that falls for consideration is whether Shri Sharad Yadav admitted having received any amount as bribe from Jain brother. It needs to be highlighted that in both the interviews, Shri Sharad Yadav has nowhere stated that he had received any amount from Jain brothers or from J.K. Jain, towards bribe. He had simply admitted having received a sum of Rs. 3 lacs from one Jain as donation to the party fund. In both the interviews he had stated that he did not know who that Jain was and he had come alongwith Chimmanbhai Patel. Editing the said statements of Shri Sharad Yadav so as to exclude the reference to receipt of Rs. 3 lacs as donation to the party fund from one Jain whom he did not know would utterly distort the true sense of both the statements. In view of the dicta of the Privy Council and the Supreme Court, no inference of a criminal intention in receiving the amount of Rs. 3 lacs by Shri Sharad Yadav as donation to the party fund can arise. In the case of Om Prakash (supra), their Lordships of the Supreme Court have laid down that unless there be a plenary admission of guilt, the facts must be interpreted reasonably and an admission of all the facts which constitute the offence should be present. Tested on the touchstone of the principles of law enunciated by their Lordships of the Privy Council and the Supreme Court, the aforesaid video recorded interviews of Shri Sharad Yadav do not amount to confessions and cannot, therefore, be used to complete the offence, with which Shri Sharad Yadav was charged.

18. Eliminating the aforesaid interviews of Shri Sharad Yadav, there remains nothing on record to connect Shri Sharad Yadav with the alleged crime. It has to be borne in mind that a criminal trial is not like a fairy tale where one is free to give flight to one's imagination and phantasy. I am, therefore, of opinion that the impugned order directing to frame charges under Section 120-B, IPC read with Sections 7, 11, 12, 13(2) & 13(1)(d) of the Prevention of Corruption Act against Shri Sharad Yadav in the present case on its facts, cannot be sustained.

10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes alongwith other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."

I shall now apply the aforesaid principles to the present case in order to find out whether or not the learned Special Judge was justified in directing to frame charges under Section 120-B, IPC, read with Sections 7, 11, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the remaining petitioners. It is significant to mention that the case the prosecution intended to project during the trial was not that there was a conspiracy amongst Jain brothers to offer illegal gratification to Shri Sharad Yadav and that pursuant thereto the latter accepted the same. On the contrary, the gravemen of the charges which were to be framed against Jain brothers pursuant to the impugned order is that they entered into an agreement with Shri Sharad Yadav in terms of which they were to make certain payment to him as an illegal gratification as a motive or reward for getting his favour while he was a public servant and in pursuance of the said agreement a sum of Rs. 5 lacs was paid to him. The entire edifice of the prosecution case is built on the diaries and files recovered from J.K. Jain. As noticed earlier, the material collected by the Prosecuting Agency does not make out any case against Shri Sharad Yadav. That being so, the conclusion is inescapable that the prosecution has failed to make out a prima facie case to prove that Shri Sharad Yadav was a party to the alleged conspiracy. Consequently, the charges of conspiracy, sought to be framed, cannot stand also against Jain brothers and their employee J.K. Jain, for the simple reason that in a case of conspiracy there must be two parties. It necessarily follows that the charge of abetment by conspiracy against the Jain brothers and J.K. Jain must also fall on the same ground. I have already held that no prima facie case has been made out against Shri Sharad Yadav of his having committed the offence punishable under Section 7 of the Prevention of Corruption Act, the question of Jains' committing the offence under Sections 12, and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act does not arise. In my opinion, the case against Jain brothers and J.K. Jain is also squarely covered by the decision of the Supreme Court in Union of India v. V.C. Shukla and Ors. (supra).