IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 135 of 2005. Decided on: 24th 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 14.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 49-S/7 of 2003/95 whereby respondents J.S. Parihar, Parkash Chand, Mohan Singh, Rakesh Gupta, Ranjeet Singh and Pankaj Manchanda, who were charged with and tried for offences, under Sections 218, 420, 467, 468, 465, 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, Parkash Chand as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of retaining wall RD-0 to RD-17 meters for `66400/-. The name of the work was ‘Construction of retaining wall for protection of septic tank RD-0 to RD-17 meters. The work was allotted to respondents Rakesh Gupta, Ranjeet Singh and Pankaj Manchanda. PW-7 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-4/E, on the basis of which, ruka Ex. PW-7/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, 468, 465, 467, 471, 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondents Rakesh Gupta, Ranjeet Singh - 3 - and Pankaj Manchada were charged under Sections 420, 468, 465, 471, 120-B of the Indian Penal Code and Section 4 of the 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 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-4/E and after taking into consideration the statements of material witnesses, i.e., PW-4 G.P. Saroch and PW-10 K.R. Verma, 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 14.12.2004, 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 Rakesh Gupta, Ranjeet Singh and Pankaj Manchanda between 08.02.1990 to 26.02.1990. The site was inspected by the technical committee - 4 - on 05.12.1990 in the presence of JE/AEE/Executive Engineer concerned. According to Ex. PW-4/E, the retaining wall has been entered in the M.B. showing a slant height of 4.70 meters, 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-4 G.P. Saroch, PW-5 V.L. Gupta and PW-10 K. R. Verma. These witnesses were members of the technical committee constituted by the H.P. State Electricity Board. The committee has submitted the report Ex. PW-4/E. 10. PW-4 G.P. Saroch, who was the member of the technical committee has admitted that the technical committee had not taken the height and depth of the retaining wall independently. He has also admitted that it was necessary to go below the natural surface level depending on the site conditions and no digging or excavation was carried out. He has also admitted that he could not tell how much of the retaining wall was below the natural surface level. 11. Similarly, PW-10 K.R. Verma, who was also the member of the technical committee has admitted that the exposed height of the retaining wall was 3.05 meters above the natural surface and foundation is separately laid below the natural surface level. He has also deposed that the measurement of the retaining wall was taken by Off-set method in which the margin of error is higher, as compared to other methods. He has also deposed that they had measured only exposed portion of the retaining wall. - 5 - 12. PW-5 V.L. Gupta, who has prepared the site plan Ex. PW-3/A, has admitted in cross-examination that due to natural calamities of March, 1990, certain sites of the project area had suffered damages and in some cases, the damages were to such an extent that the entire work had disappeared. He could not remember whether any excavation was done by the committee to ascertain the height of the retaining wall below natural surface. He further admitted that due to natural calamities, there were bound to be changes in the RDs. He also admitted that only exposed height above the natural surface level has been shown as 3.05 meters. He also admitted that if the height of the retaining wall below natural surface is as per measurement book, then after excluding the concrete work, the height approximately will come to 4.70 meters. 13. What emerges from the statements of PW-4 G.P. Saroch and PW-10 K.R. Verma is that they have followed Off-set method to measure the retaining wall. PW-4 G.P. Saroch and PW-10 K.R. Verma have admitted that foundation was not dug or excavated to ascertain as to what was the height of the retaining wall. PW-10 K.R. Verma has categorically stated that they had measured only exposed portion of the retaining wall. 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. - 6 - 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 24, 2011. (bhupender) - 7 -