IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 88 of 2005. Decided on: 23rd 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 18.08.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 15-S/7 of 2003/95, whereby respondents J.S. Parihar, Daulat Ram and Mohan Singh, who were charged with and tried for offences, under Sections 467, 420, 218, 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, Daulat Ram as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of approach road to access tunnel RD-210 to RD-375 meters, sub-head cutting of road RD-225 to RD-240 meters at Jhakri. The work for cutting of road was allotted to the contractor for `99470/- which was 50.26% above the estimated cost of `66,199/-. PW-11 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-10/B was sent. Thereafter, F.I.R. Ex.-PA was registered. The matter was investigated by the police thoroughly. The challan was put up after completing all the codal formalities. 3. Respondents 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. 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. - 3 - Their stand was that of denial simplicitor. They have also examined two DWs. 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, PW-2 K.R. Verma and PW-8 V.P. Gupta, 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 18.08.2004, 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 from 24.09.1990 to 27.09.1990 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-1 G.P. Saroch, PW-2 K.R. Verma and PW-8 V.P. Gupta. These witnesses were members of the technical committee constituted by the 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, stated that he did not remember - 4 - whether the committee had tried to ascertain RDs at the spot independently. He has admitted that there was possibility of hard rock in front and thereafter loose soil. He has also admitted that the exact position could only be ascertained by examining cross-sections prepared at the initial stage of the beginning of the work. He has also admitted that there were heavy rains in Jhakri area during March-April 1990 and many slips and slides might have occurred. He has admitted that the report was silent about the slips and slides during March 1990 to September 1990. The committee has visited the spot after six months. He has also admitted that the base width of the road was correct and it was correctly entered in the measurement book, but the only dispute in the present case was regarding the vertical height. He has admitted that the vertical height may alter due to number of reasons depending on the site condition. 11. PW-2 K.R. Verma was one of the members of the technical committee. He has admitted that the members of the committee have not fixed the RDs. independently to ascertain the site. He has also admitted that the profile of the particular site can only be ascertained by way of seeing previous cross- sections and contour, however, the committee has not inspected such record during inspection. He has admitted that the classification of the soil was not mentioned in the report Ex. PW- 1/D. He has also admitted that due to land slides and slips in such a profile, the vertical height of cutting of road may decrease due to land slides. He has also admitted that due to rains in March, 1990, certain works of the project have been damaged. - 5 - 12. PW-8 V.P. Gupta was also one of the members of the technical committee. He has admitted that if the profile of the particular site is to be ascertained, then the contour plan is required to be checked. However, in the present case, the same was not supplied during inspection for the preparation of estimate. He has also admitted that due to slips or soil erosion, the height of cutting for the road could increase or decrease. He has further admitted that rough notes were handed over to the police, however, the police has not placed the same on record. Even, the inspection report was typed in the office of D.I.G. Enforcement in the presence of technical committee members and was handed over to D.I.G. Enforcement. 13. What emerges from the statements of PW-1 G.P. Saroch, PW-2 K.R. Verma and PW-8 V.P. Gupta, is that the R.Ds. were not identified independently. There were heavy rains in the year 1990. The cross-sections/contours were not taken into consideration by the committee at the time of inspection of the site. The classification of the soil was not mentioned in the report Ex. PW-1/D. There were large scale of land slides and slips during March 1990 to September 1990. The damage to the area has also been proved by DW-2 Roshan Lal, who has produced the record of damages caused to National Highway during March 1990 vide Ex. DW-2/A-1. The plea taken by the respondents that major works were destroyed and even completely washed away, is probablised by the statement of DW-1 Satish Gupta, who has proved Ex. DW1/A-1 to Ex. DW1/A-39. - 6 - 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 23, 2011. (bhupender) - 7 -