IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 102 of 2005. Decided on: 23rd 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 and M.S. Kanwar, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral) : State has filed this appeal against the judgment dated 29.11.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 62-S/7 of 2003/95, whereby respondents J.S. Parihar, Prem Chand Thakur, Mohan Singh and Partap Singh, who were charged with and tried for offences, under Sections 218, 420, 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 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 respondents 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 retaining wall RD-2105 to RD-2115 meters for `87062/-. The name of the work was ‘Construction of 24’/36’ Wide Approach Road to Power House Site at Jhakri. The work was allotted to respondent Partap Singh. 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- 1/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, 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, 471, 120-B of the Indian Penal Code and Sections 5&6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondent Partap Singh was charged under Sections 420,468, 465, 471, 120-B of the Indian Penal Code and Section 4 of the - 3 - H.P. Prevention of Corrupt Practices Act, 1983. They pleaded not guilty. 4. The Prosecution, in order to prove its case, has examined as many as 12 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/D and after taking into consideration the statements of material witnesses, i.e., PW-1 K.R. Verma and PW-10 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 and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 29.11.2004, 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 work was executed by accused Partap Singh between 24.12.1989 to 15.01.1990. The site was inspected by 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. According to Ex. PW-1/D, the retaining wall has been entered in the M.B. showing a slant height of 9.64 meters., - 4 - but actually the same has been found to be lesser in height at the site. The material witnesses relied upon by the prosecution are PW-1 K. R. Verma and PW-10 N.C. Sharma. These witnesses were members of the technical committee constituted by the H.P. State Electricity Board. The committee has submitted the report Ex. PW-1/D. PW-1 K.R. Verma has deposed the dates, on which the technical committee has inspected the spot, i.e., 21.09.1990 to 26.09.1990 and 31.11.1990. He stated that the committee found considerable difference in height of retaining wall as entered in the measurement book. He also stated that the committee pointed out that the accused persons have released `42477.56 paise in excess to the contractor without getting the work executed at the spot. In his cross-examination, he has stated that they had not fixed the RDs. independently, but relied upon the record supplied by the police. He has admitted that there is no reference of digging in their report. He has also admitted that there is no mention in the report that retaining wall was opened for measurement at RD-2105 or RD- 2115. He also admitted that without opening the wall, exact measurement cannot be obtained. The measurement was taken by Off-set method and the marginal error is the highest in all the methods. He has also admitted that without mentioning the height found below the natural surface level, it cannot be specifically stated as to what was the actual slant height of the retaining wall. 10. PW-10 N.C. Sharma, who was also the member of the technical committee has stated that after taking all - 5 - measurement, the technical committee has found that excess measurement of 12.50 meters has been made in the measurement book resulting in excess payment of `42477.56 paise. In his cross-examination, he has admitted that the RDs were not fixed by the committee independently. There is also no mention about any digging or excavation below natural surface in the report of the committee. The technical committee has not opened the wall at the end point between RD-2105 to RD-2115 for taking the measurement. They had only measured the retaining wall by Off-set method. The spot was inspected after six months of the loss of March-April, 1990. He has also admitted that for the purpose of construction of retaining wall, one has to go below the natural surface. He has also admitted that unless the wall is opened at both ends, the exact measurement cannot be taken. 11. What emerges from the statements of PW-1 K.R. Verma and PW-10 N.C. Sharma, is that they have followed Off- set method to measure the retaining wall. PW-1 K.R. Verma has admitted that without opening the wall, exact measurement cannot be obtained. The RDs. were not fixed by the committee independently. PW-10 N.C. Sharma has also admitted that for the purpose of construction of retaining wall, one has to go below the natural surface. He has also admitted that unless the wall is opened at both ends, the exact measurement cannot be taken. 12. We are of the considered view that till the foundation was not opened or dug up, the height of the retaining - 6 - wall could not be ascertained. In report Ex. PW-1/D, there is no mentioning of the exact height below natural surface level by the members of the committee. 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. 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 23, 2011. (bhupender) - 7 -