IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 161 of 2005. Decided on: 30th May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Pratap Singh 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 01.01.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 65-S/7 of 03/95, whereby respondents Pratap Singh, Prem Chand Thakur, J.S. Parihar and Mohan Singh, 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 as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of retaining wall for providing space above stone crusher at Jhakri for `22447/-. PW-3 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-1/D, on the basis of which, ruka Ex. PW-3/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 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, 467, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondent Partap Singh was charged under Sections 420, 468, 465, 471, 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. - 3 - 4. The Prosecution, in order to prove its case, has examined as many as 9 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-1/D and after taking into consideration the statements of material witnesses, i.e., PW-1 G.P. Saroch and PW-2 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 01.01.2005, 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 technical committee on 16.01.1991 in the presence of JE/AEE/Executive Engineer concerned. According to Ex. PW-1/D, the retaining wall has been entered in the M.B. showing slant height of 4.24 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-1 G.P. Saroch and PW-2 K.R. Verma. These witnesses were members of the technical committee constituted by the - 4 - H.P. State Electricity Board. The committee has submitted the report Ex. PW-1/D. 10. PW-1 G.P. Saroch, who was one of the members of the technical committee, has deposed that they visited the spot on 16.01.1991 and found the length of the retaining wall as 8.60 meters. The length recorded in the MB was only five meters. The actual slant height at the site was 4.24 meters against 5.20 meters entered in the measurement book. The retaining wall at the site did not tally with the length entered in the measurement book. In cross-examination, the witness has stated that there is no mention of the names by whom the spot was identified. The committee members have not fixed the RDs. independently. He has admitted that for construction of retaining wall, one has to go below the natural surface level for giving the foundation. There is no mention in the report Ex. PW-1/D that any excavation was carried out on the spot by the committee. The length of the retaining wall on the spot was found to be more than what was recorded in the MB. The committee members have taken only five meters of the retaining wall and not 8.6 meters while calculating the total loss. He has admitted that in case the retaining wall is below the natural surface level, then without excavating it cannot be ascertained as to what was the height below the natural surface level. He has also admitted that the theodolite and the dumpy level methods are more accurate than off-set method of measurement. The members of the technical committee have only calculated the masonary without taking into consideration the excavation, cement, concrete and - 5 - boulder filling. The members of the technical committee have not opened the retaining wall to ascertain the dimension. 11. PW-2 K.R. Verma was also one of the members of the technical committee. He has supported the version of PW-1 G.P. Saroch. He has admitted that the length of retaining wall was 8.60 meters, whereas in the measurement book it was mentioned only 5 meters. The actual slant height on the spot was entered 4.24 meters against 5.20 meters as entered in the measurement book. He has also deposed that no RD was fixed by the committee at the spot. He has admitted that for construction of retaining wall, one has to go below the natural surface level. He has also admitted that the committee has only measured the exposed height of the retaining wall. The committee has not considered the height of the retaining wall below the natural surface level. He has further testified that the height below the natural surface level cannot be ascertained without excavating or digging. The members of the technical committee have taken the measurement by off-set method. He has also admitted that the margin of error in this method is more than the theodolite and dumpy level methods. According to him, the members of the committee have not considered the extra length of the retaining wall, which was constructed and calculated the loss caused by considering the length of retaining wall to be five meters and not 8.6 meters, as was found on the spot. - 6 - 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-2 K.R. Verma has admitted that the members of the technical committee have taken the measurement by off-set method. He has also admitted that the margin of error in this method is more than the theodolite and dumpy level methods. He has also admitted that for construction of retaining wall, one has to go below the natural surface level. The members of the technical committee have not fixed the RDs. independently. 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 -