IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 140 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 18.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 81-S/7 of 03/96, whereby respondents J.S. Parihar, Parkash Chand, Mohan Singh and Ranjit Singh Thakur, 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 Specific 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 RD-9 to RD-18 meters for the site development of Type-I Quarter Block No. 15 at Jhakri for `81321/-. PW-4 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-5, on the basis of which, ruka Ex.PW-4/B was sent. Thereafter, the F.I.R. 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, 465, 468, 467, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. Respondent Ranjit Thakur was also charged under Sections 420, 468, 471, 465, 120-B of the Indian - 3 - 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 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-4/E- 5 and after taking into consideration the statements of material witnesses, i.e., PW-6 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 18.12.2004, 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 13.01.1991 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-6 K.R. Verma and PW-8 N.C. Sharma. - 4 - 10. PW-6 K.R. Verma, who was one of the members of the technical committee has deposed that they have visited the spot on 13.01.1991 and found less slant height of the retaining wall, resulting in excess payment of `18592.62 paise to the contractor. In cross-examination, he has admitted that they had not identified the RDs. independently. He further testified that due to natural calamities, the damages were caused to various works in 1990. He has also stated that the members of the technical committee have not carried out any excavation or digging during inspection. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level. The committee has only measured the height of exposed portion and they had not measured the retaining wall below the natural surface level. 11. PW-8 N.C. Sharma was also one of the members of the technical committee. He has supported the version of PW-6 K.R. Verma. In cross-examination, he has stated that he cannot state how much portion of the retaining wall was below the natural surface level. The retaining wall was not opened at RD-9 or measured at RD-18 meters for the purpose of measurement. He has also testified that the measurement was taken by off-set method, in which margin of error was higher as compared to other methods. There is no reference of digging or excavation in the report. The measurement was taken on average method and actual cutting, excavation, boulder filling etc. was not taken into - 5 - consideration. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level. He has also stated that they had only measured the exposed portion of the retaining wall. He has also admitted that for correct measurement, the side of the retaining wall is required to be opened. 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. PW-6 K.R. Verma has stated that the members of the technical committee have not identified the RDs. independently and they had not carried out any excavation or digging during inspection. PW-8 N.C. Sharma has stated that the measurement was taken by off- set method, in which margin of error is higher as compared to other methods. There is no reference of digging or excavation in the report. The retaining wall was not opened at RD-9 or measured at RD-18 meters for the purpose of measurement. PW-6 K.R. Verma and PW-8 N.C. Sharma have stated that they have taken the measurement only of the exposed portion of the retaining wall, which means that none of the member of the committee has bothered to take the measurement from below the natural surface level. - 6 - 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 30, 2011. (bhupender) - 7 -