IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 143 of 2005. Decided on: 30th May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- J.S. Pairihar 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 24.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 57-S/7 of 03/96, whereby respondents J.S. Parihar, Prem Chand Thakur 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 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, Prem Chand as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of 24’/36’ Wide Approach Road to Power House site at Jhakri RD-2000 to RD- 3155 meters (construction of retaining wall RD-2115 to RD-2120 meters) for `43602/-. 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-1/C, on the basis of which, ruka Ex. PW-6/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 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 and 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 9 witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure. Their stand was that of denial simplicitor. - 3 - 5. Learned trial Court, after appreciating Ex. PW-1/C and after taking into consideration the statements of material witnesses, i.e., PW-1 K.R. Verma and PW-2 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 24.12.2004, 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 technical committee on 21.09.1990 and 30.11.1990 in the presence of JE/AEE/Executive Engineer concerned. According to Ex. PW- 1/C, the retaining wall has been entered in the M.B. showing slant height of 9.64 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 K.R. Verma and PW-2 N.C. Sharma. 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/C. 10. PW-1 K.R. Verma, who was one of the members of the technical committee, has deposed that the committee has - 4 - visited the spot on 21.09.1990 and 30.11.1990 and found that the respondents have released the excess payment of `23690.08 paise to the contractor without getting the entire work executed on the spot. In cross-examination, he has stated that the members of the technical committee have not affixed the RDs independently. He has also testified that for construction of retaining wall, one has to go below the natural surface level for laying the foundation of the retaining wall. The slant height as per MB was 9.64 meters, but he could not tell what was the slant height found on the spot. The retaining wall was in continuity from RD-2000 to RD-3155 meters. The end of retaining wall at RD-2115 to 2120 was not opened to measure the base width. The measurement of the retaining was taken by off-set method in which margin of error was higher as compared to other methods. He has further testified that height of the retaining wall was measured from above the natural surface level. 11. PW-2 N.C. Sharma was also one of the members of the technical committee. He has supported the version of PW-1 K.R. Verma. In cross-examination, he has admitted that in Ex. PW-1/E, the natural surface level has not been shown or marked and he cannot tell what was the height of the retaining wall below the natural surface level. He has admitted that the entire wall from RD-2000 to 3155 meters was in continuity and the wall has not been opened at RD-2115 to RD-2120 meters. He has also testified that no digging or excavation was carried out on the spot as there was no such reference in the report. - 5 - 12. PW-4 Harbans Lal has prepared the site plan Ex. PW-4/A. He has deposed that no excavation or digging had been carried out by them at the spot and they had measured the retaining wall as it existed above natural surface level. He has also deposed that height of the retaining wall below the natural surface level was not measured. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level for laying concrete base, which can be up to three meters. He has further admitted that the measurement was taken by off-set method, in which the margin of error was higher, as compared to other methods like dumpy level or theodolite. 13. 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-1 K.R. Verma has admitted that the members of the technical committee have not affixed the RDs. independently. He has admitted that end of retaining wall at RD-2115 to RD-2120 was not opened to measure the base width and the measurement of the retaining wall was taken by off-set method. PW-2 K.R. Verma has also admitted that no digging or excavation was carried out at the spot. PW-4 Harbans Lal has also admitted that height of the retaining wall below the natural surface level was not measured. - 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 30, 2011. (bhupender) - 7 -