IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 136 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 16.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 12-S/7 of 2003/95 whereby respondents J.S. Parihar, Prem Chand Thakur, Mohan Singh and Raj Kumar, 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 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 retaining wall RD-0 to RD-25 meters for `78018/-. The work was allotted to respondents Raj Kumar. 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-2/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, Prem Chand Thakur and Mohan Singh, were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 218, 420, 468, 467, 471, 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondent Raj Kumar was 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. - 3 - 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-2/E and after taking into consideration the statements of material witnesses, i.e., PW-2 K.R. Verma and PW-5 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 and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 16.12.2004, 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 Raj Kumar, between 24.12.1989 to 03.01.1990. The site was inspected by the technical committee on 03.12.1990 in the presence of JE/AEE/Executive Engineer concerned. According to Ex. PW- 2/E, the retaining wall has been entered in the M.B. showing a vertical height of 3.53 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-2 K.R. Verma and PW-5 - 4 - G.P. Saroch. These witnesses were members of the technical committee constituted by the H.P. State Electricity Board. The committee has submitted the report Ex. PW-2/E. 10. PW-2 K.R. Verma has testified that he could not state on seeing Ex. PW-1/A whether the retaining wall was in straight line of 25 meters or in steps. According to him, the committee had only taken vertical height of the retaining wall in consideration, but there was nothing on record as to what was the slant height of the retaining wall. He has also admitted that the slant height is always more than the vertical height. He has also admitted that without digging the slant height, vertical height of the retaining wall could not be calculated. The measurement of the retaining wall was carried out by Off-set method, in which the margin of error was higher as compared to the other methods. He has admitted that without ascertaining the natural surface level, it could not be specifically stated as to what height of the retaining wall existed below the natural surface level and what was the natural slant height of the retaining wall. 11. PW-5 G.P. Saroch, who was also one of the members of the technical committee, has stated that length of the retaining wall was 11.45 meters and 13.65 meters approximately. The slant height of the retaining wall was not measured and there was no reference of any digging or excavation in the report. He also admitted that for the construction of retaining wall, one has to go below the natural surface level depending on the site condition. He has further - 5 - admitted that second portion of the retaining wall was found in order. The members of the technical committee have measured only the exposed portion of retaining wall. 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. 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 24, 2011. (bhupender) - 6 -