IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 211 of 2005. Decided on: 31st 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, Ajay Kochhar and M.S. Kanwar, Advocates. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge(Oral) : State has filed this appeal against the judgment dated 22.02.2005, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 19-S/7 of 2003/96 whereby respondents J.S. Parihar, Parkash Chand Sharma, Mohan Singh and Harbans Singh, who were charged with and tried for offences, under Sections 218, 420, 465, 467, 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 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, Parkash Chand as Junior Engineer and Mohan Singh, Head Draftsman, allotted the work of site development for construction of Transit Accommodation Block No. 17 and 18 at Jhakri, Sub-head construction of front retaining wall RD-20 meters to RD-40 meters for `90839/- and final payment was released to the contractor without getting the entire work executed. The work was allotted 29% above than the estimated cost of `76304/-. PW-7 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- 7/A, on the basis of which, ruka Ex.PW-7/C 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, Parkash 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, 218, 468, 467, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. Respondent Harbans Singh was also charged under Sections 420, 468, 471, 465 and 120-B of - 3 - the Indian Penal Code and Section 4 of the H.P. Prevention of Specific 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. Their stand was that of denial simplicitor. 5. Learned trial Court, after appreciating Ex. PW-7/A and after taking into consideration the statements of material witnesses, i.e., PW-8 K.R. Verma and PW-9 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, Mr. Ajay Kochhar and Mr. M.S. Kanwar, learned counsel for the respondents have supported the judgment dated 22.02.2005, 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 members of the technical committee on 13.01.1991 in the presence of JE/AEE/Executive Engineer concerned. The material witnesses relied upon by the prosecution are PW-8 K.R. Verma and PW-9 G.P. Saroch. - 4 - 10. PW-8 K.R. Verma, who was one of the members of the technical committee, has deposed that committee members visited the spot on 13.01.1991 and found lesser slant height at RD-40 than entered in the measurement book resulting in average masonary area coming to 6.86 sq. meters than 8.42 sq. meters as per measurement book. In cross-examination, he has stated that the RDs were not identified by them independently. He also stated that no excavation had been carried out by them at the spot. He has also admitted that for the construction of retaining wall, one has to go below the natural surface level. He has also admitted that as per measurement book, the average depth of excavation was one meter and the depth of excavation at RD-20 for foundation is 0.30 meters. The exposed height was RD-5.20 meters and the exposed height at RD-40 was found 3.90 meters, which was taken from the exposed portion of retaining wall above the natural surface level. 11. PW-9 G.P. Saroch, who was also one of the members of the technical committee, has supported the version of PW-8 K.R. Verma. In cross-examination, has admitted that RDs were not established independently. He has also stated that no excavation had been carried out on the spot and there is also no reference about the existence of any drain in front of the retaining wall. According to him, from the report, it cannot be said as to how much of the retaining wall was existing below the natural surface level. He has admitted that in order to construct the retaining wall, one has to go below the natural surface level. - 5 - 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 average method to measure the height of the retaining wall, which was prone to errors vis-à-vis other methods. PW-8 K.R. Verma and PW-9 G.P. Saroch have admitted that for raising the construction, one has to go below the natural surface level, but no excavation has been carried out on the spot. The committee has not ascertained the length beyond RD-20 to RD- 40 meters and no excavation has been carried out. PW-8 K.R. Verma has specifically stated in cross-examination that the RDs were not identified by them 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 31, 2011. (bhupender) - 6 -