IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 234 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 01.03.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 73-S/7 of 2003/96, whereby respondents J.S. Parihar, Parkash Chand, Mohan Singh, Ranjit Thakur and Rakesh Gupta, 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, Parkash Chand as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of retaining wall RD-0 to RD-9 meters for the site development of Type-I Quarter Block No. 15 at Jhakri for `83018/-. PW-9 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-6/D, on the basis of which, ruka Ex.PW-9/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 J.S. Parihar, Parkash 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, 218, 468, 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. Respondents Ranjit Thakur and Rakesh Gupta were also charged under Sections 420, 468, 471, 465 and 120-B of the Indian Penal Code and Section 4 of the - 3 - 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 10 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-6/D and after taking into consideration the statements of material witnesses, i.e., PW-6 K.R. Verma and PW-7 N.C. Sharma, 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 01.03.2005, 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 13.01.1991 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-6 K.R. Verma and PW-7 N.C. Sharma. - 4 - 10. PW-6 K.R. Verma, who was one of the members of the technical committee has deposed that they had visited the spot on 13.01.1991 and found that the slant height of the retaining wall of 7.72 meters as entered in the measurement book, was found to be 7.02 meters in height and as such, accused persons have released the excess payment of `18,890.08 paise to the contractors. In cross-examination, the witness has stated that the site was identified by the Junior Engineer concerned, but he does not remember his name. He also admitted that due to natural calamities, the RDs will change. He further testified that the committee has not identified the RDs independently. He has also stated that no excavation or digging was carried out on the spot. He has further admitted that for the construction of retaining wall, one has to go below the natural surface level to give support to the retaining wall. He has also stated that the members of technical committee had only measured the exposed height and have not taken into consideration the height of the retaining wall from below the natural surface level. 11. PW-7 N.C. Sharma was also one of the members of the technical committee. He has supported the version of PW-6 K.R. Verma. In cross-examination, he has also stated that as per report, no excavation was being carried out during inspection. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level to give support to - 5 - foundation of the retaining wall. He has testified that there is no reference of digging pits in the report. He could not tell the height of the retaining wall below the natural surface level. In the report, they had not mentioned that the height of the retaining wall was 7.20 meters found on the spot. It is also admitted that there is no mention of actual top width, vertical height, slant height etc. in the report. In order to arrive at actual calculation of masonry area, excavation, boulder filling and concrete base are to be taken into consideration, but the same were not taken into consideration while calculating the excess payment on average method. He has also admitted that dumpy level and Theodolite methods are perfect methods for civil engineering work. He has admitted that retaining wall was in continuity from RD-0 to RD-18 meters. 12. 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-6 K.R. Verma has admitted that due to natural calamities, the RDs will change. The committee has not identified the RDs independently. He has also stated that no excavation or digging was carried out on the spot. He has admitted that for the construction of retaining wall, one has to go below the natural surface level to give support to the retaining wall. The committee members had only measured exposed height and have not taken into consideration the height of the retaining wall from below the - 6 - natural surface level. PW-7 N.C. Sharma has also admitted that for the construction of retaining wall, one has to go below the natural surface level to give support to foundation of the retaining wall. There is no reference of digging pits in the report. There is no mention of actual top width, vertical height, slant height etc. in the report. In order to arrive at actual calculation of masonry area, excavation, boulder filling and concrete base are to be taken into consideration, but the same were not taken into consideration while calculating the excess payment on average method. 13. 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 -