IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 230 of 2005. Decided on: 31st May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Partap Singh and others. …Respondents. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondents. : M/s. Satyen Vaidya, Ajay Kochhar and M.S. Kanwar, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral) : State has filed this appeal against the judgment dated 03.03.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 83-S/7 of 2003/96, whereby respondents Partap Singh, J.S.Parihar, Prem Chand Thakur and Mohan Singh, who were charged with and tried for offences, under Sections 218, 420, 465, 467, 468, 471 and 120- B of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Sections 4, 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983, have been acquitted. 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - 2. Case of the prosecution, in a nut-shell, is that respondent J.S. Parihar, while working as Executive Engineer, Prem Chand Thakur as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of 24’/36’ Wide Approach Road to Power House Site RD-2000 to 3155 meters Sub-head, construction of retaining wall RD-2140 to 2150 meters for `72422/-, which was 30% above than the estimated cost of `55700/-. The final payment was released for `71623/- to the contractor. PW-1 Rama Nand, while investigating F.I.R. No. 25/90, noticed certain irregularities in the work of Jhakri Division. He has requested the superior officers for constituting a technical committee to look into the matter. Consequently, the H.P. State Electricity Board constituted a technical committee to detect the irregularities committed during the execution of work in Jhakri Division. The committee submitted its report Ex. PW-1/1, on the basis of which, ruka Ex.PW-1/3 was sent. Thereafter, F.I.R. Ex.PW-1/4 was registered. The matter was investigated by the police thoroughly. The challan was put up after completing all the codal formalities. 3. Respondents J.S. Parihar, Prem Chand and Mohan Singh were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 420, 468, 465, 467, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. Respondent Partap Singh was also charged under Sections 420, 468, 471, 465 and 120-B of the Indian - 3 - Penal Code and Section 4 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. They pleaded not guilty. 4. The Prosecution, in order to prove its case, has examined as many as 14 witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure. Their stand was that of denial simplicitor. 5. Learned trial Court, after appreciating Ex. PW-1/1 and after taking into consideration the statements of material witnesses, i.e., PW-2 K.R. Verma, PW-3 V.P. Gupta and PW-8 G.P. Saroch, acquitted the respondents. Hence, this appeal. 6. Mr. J.S. Guleria, learned Assistant Advocate General has strenuously argued that the prosecution has proved its case. According to him, learned Special Judge (Forest) has not correctly appreciated the oral as well as documentary evidence. 7. Mr. Satyen Vaidya, Mr. Ajay Kochhar and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 03.03.2005, passed by the learned Special Judge (Forests), Shimla. 8. We have heard the learned counsel for the respondents and gone through the record meticulously. 9. The site was inspected by the members of the technical committee on 21.09.1990 to 26.09.1990 and again on 30.11.1990 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-2 K.R. Verma, PW-3 V.P. Gupta and PW-8 G.P. Saroch. - 4 - 10. PW-2 K.R. Verma, who was one of the members of the technical committee, has deposed that committee members visited the spot on 21.09.1990 to 26.09.1990 and again on 30.11.1990. He has admitted that width of the retaining wall cannot be ascertained without resorting to digging and excavation on the side of the retaining wall. He has stated that entries in respect of work executed below the ground are required to be entered in the measurement book for assessing the cost of work existing on the spot, which has not been considered by them as there is no reference in the report. There is also no reference about the quantum of dry masonry work and boulder filling during the construction of retaining wall. He has also stated that slant height of the retaining wall was measured by the committee by measuring tape. The method adopted by the committee for measurement has not been mentioned in the report. He has also admitted that for raising construction of retaining wall, one has to go below the natural surface level. 11. PW-3 V.P. Gupta, who was also one of the members of the technical committee has supported the version of PW-2 K.R. Verma. He has deposed that to ascertain the height and width of the retaining wall, there are methods like Theodolite, Dumpy and Off-set. He also stated that margin of error is higher in the Off-set method and as per the report, the measurement was carried out by Off-set method. 12. PW-6 V.L. Gupta has also visited the spot and prepared the site plan Ex. PW-6/A. There is no mention in the - 5 - site plan about the depth of the retaining wall below the natural surface level. He has admitted that there was heavy rain in the project area in March 1990 and some works were completely damaged due to natural calamities. He also stated that they had not checked the boulder filling behind the retaining wall and the retaining wall was in continuity even beyond RD-2140 and RD- 2150. 13. PW-8 G.P. Saroch, who was also one of the members of the technical committee, has supported the version of PW-2 K.R. Verma and PW-3 V.P. Gupta. In cross-examination, he has stated that he did not remember whether any digging or excavation was carried on the spot. They had only ascertained the base line from visual inspection. According to him, as per the report, he could not say whether the cross-sections were taken into consideration or not and the calculations have been made on average basis. He also stated that they had not carried out any digging to ascertain the depth of the wall below the natural surface level and the RDs were not identified on the basis of record. 14. We are of the considered view that till the foundation was not opened or dug up, the height of the retaining wall could not be ascertained. The technical committee has adopted a method to measure the height of the retaining wall, which was prone to errors vis-à-vis other methods. PW-2 K.R. Verma has stated that the entries in respect of work executed below the ground are required to be entered in the measurement book for assessing the cost of work existing on the spot, which - 6 - has not been considered by them as there is no reference in the report. There is also no reference about the quantum of dry masonry work and boulder filling during the construction of retaining wall. The method adopted by the committee for measurement has not been mentioned in the report. PW-3 V.P. Gupta has stated that the measurement was carried out by Off- set method and the margin of error is higher in the Off-set method. He also stated in cross-examination that though they had taken into consideration cutting and digging work, laying of pieces, dry masonry and boulder filling work while calculating the loss, but the same has not been mentioned in the report. PW-6 V.L. Gupta has also admitted that there was heavy rain in the project area in March 1990 and some works were completely damaged due to the natural calamities. They had not checked the boulder filling behind the retaining wall. According to PW-8 G.P. Saroch, as per the report, he could not say whether the cross-sections were taken into consideration or not and they had not carried out any digging to ascertain the depth of the wall below the natural surface level. 15. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma), Judge May 31, 2011. (bhupender) - 7 - - 8 -