IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 233 of 2005. Decided on: 31st May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- J.S. Parihar 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 16.03.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 82-S/7 of 2003/94, whereby respondents J.S. Parihar, Daulat Ram and Mohan Singh, who were charged with and tried for offences, under Sections 218, 420, 468, 465, 471, 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 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, Daulat Ram as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of Approach Road to Access Tunnel RD-210 to RD-375 meters Sub-head, cutting of road from RD-300 to RD-315 meters. The work was allotted for `98630/- which was 91.25% above than the estimated cost of `51569/-. The final payment was released for `96128/- to the contractor. PW-13 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/E, on the basis of which, ruka Ex.PW-13/A was sent. Thereafter, F.I.R. Ex.PA/1 was registered. The matter was investigated by the police thoroughly. The challan was put up after completing all the codal formalities. 3. Respondents were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 218, 420, 468, 465, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. They pleaded not guilty. - 3 - 4. The Prosecution, in order to prove its case, has examined as many as 16 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/E and after taking into consideration the statements of material witnesses, i.e., PW-1 G.P. Saroch and PW-2 K.R. Verma and PW- 12 V.L. Gupta, 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 16.03.2005, 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 24.09.1990 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-1 G.P. Saroch and PW-2 K.R. Verma and PW-12 V.L. Gupta. - 4 - 10. PW-1 G.P. Saroch, who was one of the members of the technical committee, has deposed that the committee has visited the spot on 24.09.1990 and found less work executed on the spot, which resulted in excess payment of `20055/-. He has also stated that he did not know whether the road before RD- 210 was inspected by the committee or not. He has admitted that in cutting of different types, classification of soil is involved, which they have not mentioned in the report and the classification of soil is taken into consideration while preparing the estimate. He could not state whether the rock was overhanging or it was levelled. They have not given the description of the site in the report. He is also not aware that back height of RD-300 was of hard rock or was of loose soil. In the measurement book, there was 11.8 meters height entered, which was even more when they visited the spot. He also stated the excess height was not taken into consideration while working out the total area of the executed work on the spot. 11. PW-2 K.R. Verma, who was also one of the members of the technical committee, has supported the version of PW-1 G.P. Saroch. In cross-examination, he has stated that he is not having any degree from engineering side. 12. PW-12 V.L. Gupta has admitted in cross- examination that due to rains and floods in March-April 1990 certain sites in project had suffered heavy losses. He has also stated that the RDs were not fixed by the committee - 5 - independently at the time of inspection. He has stated that no site plan was prepared at the time of inspection and Ex. PW-3/A is not the original site plan. He has also admitted that the height can be destroyed at the site because of many reasons. He further testified that if the loose soil falls down, with the passage of time, it causes damages or altering the vertical height of the site. 13. The work was to be executed by the contractor between 09.03.1990 to 24.09.1990, whereas the committee has visited the spot on 24.09.1990, i.e., about after six months from the completion of the work. PW-12 V.L. Gupta has admitted that due to heavy rains during March-April 1990, many works in Jhakri area were damaged. If the statement of PW-12 V.L. Gupta is to be taken into consideration, then the likelihood of slips on the slopes of the road cannot be ruled out. PW-3 Naveen Malhotra has stated that the back height of the RD-300 to RD- 315 was not shown in the original site plan and whatever was written, that has been written at the instance of Shri V.L. Gupta, S.D.O. PW-12 V.L. Gupta has categorically stated that the RDs were not fixed by the committee independently at the time of inspection. He has also stated that if loose soil falls down, with the passage of time, it causes damages or altering the vertical height of the site. PW-1 G.P. Saroch has stated that excess height was not taken into consideration while working out the total area of the executed work on the spot. - 6 - 14. 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 -