IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 443 of 2004. Decided on: 17th 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 03.07.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 11-S/7 of 2003, whereby respondents J.S. Parihar, Daulat Ram Kashyap, Mohan Singh and Man Mohan Janartha, who were charged with and tried for offences, under Sections 420, 467, 468, 471, 218, 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, Daulat Ram Kashyap as Junior Engineer and Mohan Singh, Head Draughtsman, allotted the work for `70430/-, which was 30% above the HPSR, 1987 for the construction of retaining Wall in back side and left side of Block No. 9 at Jhakri. The challan was also presented against respondent Man Mohan Janartha, Contractor, who in connivance with the other accused, has taken `22,003/- in excess for inadequate work and also furnished false bills for claiming the payment. These irregularities were detected by PW-9 Rama Nand during the course of investigation of F.I.R. No. 25/90. He reported the matter to his superior officer. Thereafter, a committee was constituted by the H.P. State Electricity Board to visit the spot and inspect all the works carried out in Jhakri Division. The committee visited the spot and after inspecting the spot, they have submitted the report Ex. PW-4/D. The ruka was sent vide Ex. PW-9/A, on the basis of which, F.I.R. Ex. PA/1 was registered. The matter was investigated by the police. 3. On completion of investigation, report under Section 173, Cr. P.C. was filed. Learned Special Judge (Forests), after complying with the provisions of Section 207, Cr. P.C. and hearing the learned Public Prosecutor and learned defence counsel, felt that a prima-facie case under the aforesaid penal provisions of Indian Penal Code, P.C. Act, 1988 and H.P. P.S.C. Act, 1983, was made out. Respondents were charged accordingly. They pleaded not guilty. - 3 - 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 defence is that of denial simplicitor. 5. Learned trial Court, on the basis of the statements of PW-4 Shri K.R. Verma and PW-5 G.P. Saroch, came to the conclusion that the prosecution has failed to prove its case against the respondents. Consequently, the respondents have been acquitted on 03.07.2004. 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 03.07.2004, 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. According to PW-4/D, the work order had been issued for `70430/- against the estimated cost of `54,176/-, mentioned in schedule of quantity attached with the work order. According to the contents of Ex. PW-4/D, the awarded work was 30% above the HPSR-1987. The site was inspected on 15.01.1991 and again on 21.01.1991 alongwith AEE/JE concerned, who got the work executed. The work was shown/ - 4 - entered for constructing retaining walls in six portions consisting of: i) Back side retaining wall of 8.20 m length. ii) Back side retaining wall 3.50 m long. iii) Back side wall 7.10 m long (towards Nallah side) average length is 7.10 m. iv) Left hand side wall of 5.65 m length starting from river side to back-wards. v) Left hand side retaining wall of 3.00 m length (Central Portion height 1.84 m as entered. vi) Retaining wall of 4.00 length. It has specifically come in the report that the retaining wall at Sr. No. V has been shown constructed for a slant height of 1.84 m. and the same was found to be more or less in order constructed on undulated rock below in varying heights. In other cases, the slant height was found to be on the lower side. 10. PW-1 Shatrughan Pandey has visited the spot and prepared the site plan Ex. PW-1/A. He was declared hostile. 11. PW-4 K.R. Verma was one of the members of the technical committee appointed by the H.P. State Electricity Board as per Ex. PW-4/A and Ex. PW-4/B. S/Sh. V.P. Gupta, G.P. Saroch, R.C. Chopra, N.C. Sharma and L.D. Sharma were also the members of the committee. The committee submitted a detailed report to the police, which is Ex. PW-4/D. According to him, the retaining wall was found to have been constructed for a - 5 - slant height of 1.84 meters. In his cross-examination, he has admitted that he was not technically qualified person and was unable to clarify as to what should have been the slant height as per the Measurement Book and what was actually found at the spot. He also did not remember whether any excavation or digging was done on the spot before the measurement. He has categorically admitted that Ex.-DB and Ex.-DC of C.P.W.D. Manual-II were made applicable to the State Electricity Board after May, 1997. 12. PW-5 G.P. Saroch was the other member of the technical committee. He has admitted in his cross-examination that except slant height, everything was found in order. He has admitted that as and when retaining wall is to be constructed, one has to go below the natural surface. He could not tell the height of the retaining wall below the natural surface. 13. PW-11 Dev Dutt has investigated the case. He has admitted that no excavation was got done either by him or by technical committee. He also admitted that before constructing the retaining wall, digging and laying of concrete base is done. 14. What emerges from the statements of PW-4 K.R. Verma, PW-5 G.P. Saroch and PW-1 Dev Dutt, is that everything was found in order except slant height. PW-4 has admitted that he was not a technically qualified person. He has deposed on the basis of report Ex. PW-4/D. He has also admitted that certain chapters of C.P.W.D. Manual-II were made applicable to the State Electricity Board only in the month of May, 1997. These witnesses have also admitted that no digging was done on the - 6 - spot before the measurement. Since no digging has taken place below the natural surface, the height of the retaining wall could not be ascertained. PW-5 G.P. Saroch has admitted that Jhakri area was sinking and sliding zone. 15. In view of the observations and discussions made hereinabove, the prosecution has miserably failed to prove that there was any irregularity in the allotment and the execution of the work for construction of retaining wall in back side and left side of Block No. 9 at Jhakri. 16. 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 17, 2011. (bhupender) - 7 -