IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 122 of 2005. Decided on: 24th 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 04.12.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 52-S/7 of 03/95 whereby respondents J.S. Parihar, Prem Chand Thakur, Mohan Singh and Partap Singh, who were charged with and tried for offences, under Sections 218, 420, 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 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 as Junior Engineer and Mohan Singh, Head Draughtsman, allotted the work for construction of retaining wall RD-2120 to RD-2130 meters for `72864-. The name of the work was ‘Construction of 24’ /36’ feet Approach Road to Power House RD-2000 to 3155 meters Sub Head construction of retaining wall RD-2120 to 2130 meters. The work was allotted to respondent Partap Singh. 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-3/C, on the basis of which, ruka Ex. PW-7/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 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, 465, 467, 471, 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Corrupt Practices Act, 1983. Respondent Partap Singh was charged under Sections - 3 - 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 11 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-1/D and after taking into consideration the statements of material witnesses, i.e., PW-3 K.R. Verma and PW-10 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 4.12.2004, 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 01.01.1990 to 18.01.1990. The site was inspected by the technical committee on 21.09.1990 to 26.09.1990 and on 30.11.1990 in the presence of JE/AEE/Executive Engineer concerned. According to Ex. PW-3/C, the retaining wall has - 4 - been entered in the M.B. showing a slant height of 8.56 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-3 K. R. Verma and PW-10 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-3/C. PW-3 K.R. Verma has deposed the dates, on which the technical committee has inspected the spot, i.e., 21.09.1990 to 26.09.1990 and on 30.11.1990. He stated that the committee found wrong slant height of retaining wall in the measurement book, which resulted in excess payment of `33143.73/- paise to the contractor. He has admitted that RDs. were not fixed by the committee independently. He has also admitted that the RDs. keep on changing due to natural calamities and damages. According to him, no excavation or digging on the spot was carried out to ascertain as to what was the height of the retaining wall available below the natural surface level. According to him, the committee has followed off- set method to ascertain the measurement of the retaining wall. He has admitted that margin of error could be higher in this method as compared to other methods. He has also admitted that without digging the foundation, it could not be ascertained that what was the height of the retaining wall. Similar is the statement of PW-10 N.C. Sharma, who was also the member of the technical committee. The retaining wall was not dug up at RD-2120 or RD-2130 to take the actual measurement. According to him, the slant height of the retaining wall was less - 5 - than that entered in the measurement book. He has also admitted that the committee has followed Off-set method. 10. What emerges from the statements of PW-3 K.R. Verma and PW-10 N.C. Sharma is that they have followed Off- set method to measure the retaining wall. PW-3 K.R. Verma has admitted that foundation was not dug or excavated to ascertain as to what was the height of the retaining wall. The RDs. were not fixed by the committee independently and according to him, the RDs. could change due to natural calamities and damage. 11. PW-10 N.C. Sharma has also admitted that RDs. were not fixed independently by the members of the committee and he was unable to state as to how much portion of the retaining wall was below the natural surface level and how much of it was above the natural surface level. 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. In report Ex. PW-3/C, there is no mentioning of the exact height below natural surface level by the members of the committee. 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. Though it is mentioned in Ex. PW-3/C that the slant height of retaining wall was 8.56 meters in M.B., however, the members of technical committee have not independently ascertained the slant height on the spot. - 6 - 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 24, 2011. (bhupender) - 7 -