IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 149 of 2005. Decided on: 30th 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. 79-S/7 of 03/95, whereby respondents J.S. Parihar, Parkash Chand, Mohan Singh, Rakesh Gupta, Ranjit Singh Thakur and Pankaj Manchanda, 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 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 for the protection of New Septic Tank at Jhakri RD-17 to RD-35 meters. The work was allotted for `75,512/-, which was 27.46% above than the estimated cost of `59, 341/-. PW-12 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-5/E, on the basis of which, ruka Ex.PW-12/A was sent. Thereafter, the 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, 467, 468, 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 Rakesh Gupta, Ranjit Thakur and Pankaj Manchanda were charged under Sections - 3 - 420, 468, 465, 471 and 120-B of the Indian Penal Code and Section 4 of the 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 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-5/E and after taking into consideration the statements of material witnesses, i.e., PW-5 K.R. Verma and PW-8 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 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 site was inspected by the members of the technical committee on 05.12.1990 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-5 K.R. Verma and PW-8 N.C. Sharma. - 4 - 10. PW-5 K.R. Verma, who was one of the members of the technical committee, has deposed that the spot was visited on 05.12.1990. The committee has submitted a detailed report vide Ex. PW-5/E. The retaining wall found on the spot was 16 meters against 20 meters entered in the measurement book. The height of the wall was 3.40 meters, but the same did not tally with the height entered in the measurement book. He has admitted that as per MB No. 331/1989, the stone stacks of retaining wall from RDs.-17 to 35 meters was retrieved, which was approximately 49 cubic meters. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level. 11. PW-8 N.C. Sharma was also one of the members of the technical committee. In his cross-examination, he has stated that he did not know whether the Septic Tank was 40 meters. However, they had found the length of the retaining wall at 16 meters on the spot, but he did not know whether retaining wall beyond RD-35 meters had been retrieved as per entry made in the measurement book. There was no reference of digging or excavation in the report Ex. PW-5/E. According to him, the measurement was taken on average method and actual cutting, excavation, boulder filling etc. was not taken into consideration. He has also admitted that for the construction of retaining wall, one has to go below natural surface level. He has also admitted that for taking the exact measurement of the retaining wall, the side of the same is required to be opened. - 5 - 12. The height of the retaining wall as per report of the committee Ex. PW-5/E at page-32 in paragraphs No. 5 and 6 was shown 3.40 meters on the spot against 4.70 meters, as entered in the M.B. at page-69. 13. PW-5 K.R. Verma and PW-8 N.C. Sharma have admitted that unless the measurement is taken below natural surface level, exact slant height cannot be ascertained. It is evident from the statements of these witnesses that only the height of exposed portion of the retaining wall was measured. The members of the committee have not disclosed how the height of the retaining wall was measured. 14. 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 30, 2011. (bhupender) - 6 -