IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 125 of 2005. Decided on: 24th May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Partap 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?1No. __________________________________________________________ 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 09.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 61-S/7 of 2003/94 whereby respondents Partap Singh, Parkash Chand, Mohan Singh, Suraj Parkash Kapoor and J.S. Parihar, who were charged with and tried for offences, under Sections 218, 420, 467, 468, 471, 465 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 respondents J.S. Parihar, while working as Executive Engineer, Suraj Parkash Kapoor and Parkash Chand as Junior Engineers and Mohan Singh, Head Draughtsman, allotted the work for construction of retaining wall RD-373 to RD-388 meters and RD-393 to RD-425 for `73015-. The name of the work was ‘Construction of 6.1/9.1 meters Wide Approach Road to Dumping Site from Surge Shaft to Jhakri, Sub Head construction of retaining wall RDs-373 to 388 and RD-393 to RD-425. The work was allotted to respondent Partap Singh. PW- 6 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-6/E, on the basis of which, ruka Ex. PW-6/F 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, Suraj Parkash Kapoor and Mohan Singh, Parkash Chand were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 420, 468, 465, 467, 471, 120-B of the - 3 - 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 Corrupt Practices Act, 1983. They pleaded not guilty. 4. The Prosecution, in order to prove its case, has examined as many as 16 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-6/E and after taking into consideration the statements of material witnesses, i.e., PW-12 K.R. Verma and PW-14 G.P. Saroch, 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 09.12.2004, 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 work was executed by accused Partap Singh between 20.02.1990 to 19.03.1990. The site was inspected by the technical committee on 01.12.1990 to 06.12.1990 in the - 4 - presence of JE/AEE/Executive Engineer concerned. According to Ex. PW-6/E, the retaining wall has been entered in the M.B. showing a slant height of 3.09 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-12 K. R. Verma and PW-14 G.P. Saroch. These witnesses were members of the technical committee constituted by the H.P. State Electricity Board. The committee has submitted the report Ex. PW-6/E. 10. PW-12 K.R. Verma was the member of the technical committee. According to him, the committee members have found the height of the retaining wall only 2.90 meters against 3.63 sq. meters as entered in the measurement book Ex. PA/20. He has admitted that RD-373 was correct, but the height of other end was less. 11. PW-14 G.P. Saroch, who was also one of the members of the technical committee has admitted in cross- examination that he did not know whether the RDs were fixed independently by the committee or not. According to him, it was identified by the concerned person. The members of the technical committee have not done any excavation on the spot. The retaining wall from RD-393 to RD-425 was in order and there was one boulder between RD-388 to RD-393 meters. He has admitted that the retaining wall from RD-373 to RD-388 was damaged/ crumbled. The damage was not assessed independently. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level. In - 5 - the present case, they have not assessed how much retaining wall was below the natural surface level. It was also not mentioned in the report as to what was the depth of the retaining wall below the natural surface. The measurement was taken by Off-set method. He has admitted that margin of error in Off-set method is higher than the Theodolite method. 12. PW-1 V.L. Gupta has admitted that the wall was damaged and was crumbled at the site. According to him, height of the retaining wall between RD-393 to RD-425 was 3.50 meters. 13. What emerges from the statements of PW-1 V.L. Gupta, PW-12 K.R. Verma and PW-14 G.P. Saroch is that the proper method for measuring the height of the retaining wall has not been followed. The method followed by the technical committee was prone to errors. It has come in the statement of PW-14 G.P. Saroch that the foundation was not dug up to ascertain the height of the retaining wall. PW-1 has admitted that the height of the retaining wall between RD-393 to RD-425 was 3.50 meters. It has also come in the evidence that the wall had damaged, but no damage was assessed by the members of the technical committee. 14. 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. - 6 - 15. 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 24, 2011. (bhupender) - 7 -