IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 263 of 2005. Decided on: 19th July, 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. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General. For the respondents. : M/s. Satyen Vaidya, Ajay Kochhar and M.S. Kanwar, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral) : State has filed this appeal against the judgment dated 04.04.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 84-S/7 of 2003/95, whereby respondents J.S. Parihar, Prem Chand Thakur, Mohan Singh, Ranjit Singh Thakur and Rakesh Gupta, 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 respondents J.S. Parihar, while working as Executive Engineer, Prem Chand Thakur as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work for construction of retaining wall RD-1347 to RD-1355 mtrs. for `76038/-. PW-6 Rama Nand, Dy. S.P. 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/D, on the basis of which, ruka Ex. PW-6/A was sent. Thereafter, F.I.R. Ex.PA/2 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, 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondents Rakesh Gupta and Ranjeet Singh Thakur were 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 8 witnesses. Respondents were also - 3 - 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/D and after taking into consideration the statements of material witness PW-4 K.R. Verma and PW-5 N.C. Sharma, acquitted the respondents. Hence, this appeal. 6. Mr. P.M. Negi, learned Deputy 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, Mr. Ajay Kochhar and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 04.04.2005, 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 in the presence of JE/AEE/Executive Engineer concerned. The report of the technical committee is Ex. PW-4/D. 10. PW-1 Shri Naveen Kumar though was declared hostile, but he has admitted that no excavation was carried out at the spot and he could not say how much of the retaining wall was existing below the natural surface level and no measurement was taken from below the natural surface level. 11. PW-4 Shri K.R. Verma was one of the members of the technical committee. The report of the technical committee is Ex. PW-4/D. He has admitted that RDs. were not independently - 4 - fixed by the committee. He has admitted for construction of retaining wall, one has to go below the natural surface level for proper foundation of the retaining wall. There was no reference of excavation or digging at the spot carried out by the technical committee. He has also admitted that thickness of foundation has not been mentioned in Ex. PW-4/J. He has also admitted categorically that the committee has not opened the retaining wall either at RD-1347 or RD-1355. 12. PW-5 Shri N.C. Sharma was also one of the members of the technical committee. He has also stated in cross-examination that the RDs were not fixed by the committee independently. He has also admitted that it cannot be stated how much portion of the retaining wall was below the natural surface level and how much of it was above the natural surface level. There was no reference of digging or excavation below the natural surface level. The retaining wall was in continuity before RD-1347. He has also admitted that the entries in the measurement book are in cubic meter, whereas the committee has prepared the report on sq. meter basis. 13. Case of the prosecution is that when the members of the technical committee visited the sport, they found less slant height of the retaining wall than entered in the measurement book. However, there is nothing in the report of technical committee Ex. PW-4/D what was the slant height found by the members of the technical committee on the spot. It was necessary for the technical committee to give exact height found at the spot. The members of the technical committee have - 5 - not opened or dug up the foundation to see the height of the retaining wall. They have only taken the height of the exposed portion of the retaining wall. It has also come in the record that the retaining wall was in continuity and was existing on both sides of RD-1347 and RD-1355. In the instant case, the site was inspected by the technical committee on 24.09.1990 & 30.11.1990. However, the site plan was prepared only on 22.03.1991. 14. It is, thus, evident that the prosecution has failed to prove its case. The foundation was not dug up to ascertain the exact slant height of the retaining wall. It was necessary to dug up the foundation to see the slant height. What was the exact slant height on the spot, has not been measured by the members of the technical committee. There were natural calamities, which have damaged the property. The R.Ds. were not identified independently. The site was not disclosed by the accused, but it was disclosed by one Shri V.L. Gupta. 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 July 19, 2011. (bhupender) - 6 - - 7 -