IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 472 of 2004. Decided on: 17th May, 2011. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Daulat Ram Kashyap 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 02.08.2004, rendered by the learned Special Judge (Forests), Shimla in Corruption Case No. 85-S/7 of 2003/93, whereby respondents Daulat Ram Kashyap, J.S. Parihar, Mohan Singh, Partap Singh and Devi Singh, who were charged with and tried for offences, under Sections 420, 465, 467, 468, 471, 218 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 respondent J.S. Parihar, while working as Executive Engineer, Daulat Ram Kashyap as Junior Engineer and Mohan Singh, Head Draughtsman, allotted the work for construction of wire crate for `97586/- which was 61.10% higher than the estimated cost of `61422/-. The crate work was to be executed between RD-400 to RD-450. During investigation of case F.I.R. No. 25/90, PW-1 Rama Nand detected certain irregularities in the execution of the work. He requested the authorities to get the matter investigated thoroughly by appointing a technical committee by the H.P. State Electricity Board. Consequently, the technical committee was constituted as per letters Ex. PW-3/A and Ex. PW-3/B. The technical committee submitted the report Ex. PW-1/A to the police. Thereafter, a ruka was sent by PW-1 Rama Nand vide Ex. PW-1/C for registration of case. In sequel thereto, F.I.R. Ex. PW-1/D was registered. The matter was investigated thoroughly by the police. Thereafter, after completing all the necessary formalities, challan was put up against the respondents. 3. Respondents No. 1 to 3 were charged under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, Sections 420, 468, 465, 471 and 120-B of the Indian Penal Code and Sections 5 & 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. Respondents No. 4 & 5 were charged under Sections 420, 468, 465, 471 and 120-B of the Indian Penal Code and Sections 5 and 6 of the H.P. Prevention of Specific Corrupt Practices Act, 1983. They pleaded not guilty. - 3 - 4. The Prosecution, in order to prove its case, has examined as many as 22 witnesses. Respondents were also examined under Section 313 of the Code of Criminal Procedure. Their defence is that of denial simplicitor. However, they have also examined three DWs in order to prove their defence. 5. Learned trial Court, on the appraisal of site plan Ex. PW-2/A, technical report Ex. PW-1/A and after taking into consideration the statements of PW-2 V.L. Gupta, PW-3 G.P. Saroch and PW-21 K.R. Verma, 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 02.08.2004, 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 technical report is Ex. PW-1/A. The work order was for wire crate work along Gharolla Nallah for RD-400 to RD- 450 location No. III. This finds mention at paragraph No. 21 of Ex. PW-1/A. 10. PW-2 V.L. Gupta has proved site plan Ex. PW-2/A. The same was got prepared by the police from J.E. Shatrughan - 4 - Pandey, Surveyor Narotam Singh and Prem Chand. He has only countersigned the same. According to him, as per the measurement carried out on the spot, the crates had been laid in an area of 40 mtrs., out of which 17 mtrs. were in double layer and the remaining were in single layer. The work order was issued in favour of M/s. Shimla Hills Contractors. The work was known as ‘Stabilisation of Hill Slops’ alongwith Gharola Nallah between RD-400 to RD-450, location No.-III amounting to `98,952/- against estimated cost of `61,424/-. However, in the M.B. relating to this case, name of the work was shown as ‘Stabilization of Hill Slops alongwith Gharola Nullah between RD-450 to RD-500 at Jhakri, Location No. 1. He has admitted that they have not ascertained whether any master plan or contour plan relating to the site in question was available or not. They have also not examined the site pertaining to the RDs’ prior to RD-450. He has also admitted that while fixing RDs. in the instant case, they had not fixed “zero” RD and instead it was done on the basis of available RD No. on the stones and boulders present on the spot. No notice in writing was issued to the accused to associate them at the time of spot inspection. He could not say whether any such notice was given to them by the technical committee. In his cross-examination, he has admitted that in the year 1990, there had been wide spread rains in the area causing extensive damage to the works. He has also admitted that at some places alongwith river bed, the damage was almost total and it could not be ascertained whether any work had ever been executed there or not. He had not seen any - 5 - damage report regarding the works between RD-400 to RD-450, having been made by the respondents to the higher authorities. The site plan Ex. PW-2/A was prepared by chain and tape method and as per scale of 1 cm. =5 mtrs., meaning thereby, the area of 50 mtrs. was represented by 10 cm.. In site plan Ex. PW- 2/A, the stretch between RD-450 to RD-500 is =13.6 cm.. He has also admitted that entire crate work executed on the spot along with RD-450 to 500 was not shown to have been measured in site plan Ex. PW-2/A and the crates laid in the length-wise were not taken into consideration. He has also admitted that site plan Ex. PW-2/A has been prepared without looking into the official site plan of the project area. He has categorically admitted that they have not looked into the work relating to RD-400 to RD-500 while preparing the site plan Ex. PW-2/A. 11. PW-3 G.P. Saroch was one of the members of the technical committee. The committee was constituted as per letters Ex. PW-3/A and Ex. PW-3/B, whereby S/Sh. V.P. Gupta, S.E., K.R. Verma, Naresh Chand Sharma, A.E., K.S. Dogra, AEE and L.D. Sharma were also included as members. The work was allotted to M/s. Shimla Hills and Contractors for `98,952/- for stabilization of hills slops alongwith Gharola Nallah between RD- 400 to RD-450 at Jhakri Location No. III. The report Ex. PW-1/A was sent to the Enforcement Police vide letter Ex. PW-1/B. According to him, the work shown to have been executed vide entries in the MB, was not in fact executed on the spot in its entirety and the deficiency of work has been duly shown at Sr. - 6 - No. 21 of report Ex. PW-1/A alongwith requisite details, resulting in excess payment of `64,407/- to the contractors. In his cross-examination, he has deposed that the accused were informed about the visit of the technical committee on the spot, but he did not remember whether any notice in writing was sent or not. Later on, he stated that the accused were informed by the Enforcement police orally. The signatures of the accused were not obtained by the committee in token of their presence on the spot at the time of inspection. In the report at Sr. No. 21, the names of the accused persons at the time of inspection have not been mentioned. He has also admitted that on 31.08.1990, they had measured the site between RDs.-45 to 500. He has also admitted categorically that in the report, it is nowhere mentioned that the committee had also inspected the site between RD-400 to RD-450. The report was finalized and signed on 19.09.1990. He has also admitted that while fixing RDs., “zero” RD was not fixed. He had also admitted that the report does not contain any mentioning about fixing of “zero” RD. 12. PW-21 K.R. Verma was also one of the members of the technical committee. According to him, report Ex. PW-1/A was sent to the police vide letter Ex. PW-1/B. According to him, excess payment of `64,407/- had been made to the contractor M/S. Shimla Hills and Contractors. He has admitted that Ex. PW-1/A pertains to the work between RD-450 to RD-500 mtrs.. He has categorically admitted in his cross-examination that there is no mentioning in the report Ex. PW-1/A about the inspection of the site between RDs. 400 to 450 mtrs. He has also - 7 - admitted that the report was partly prepared and drafted on the spot, but was later on given the final shape in the Enforcement office at Shimla. They used to prepare rough notes, but those were not preserved by them and the same were destroyed. While fixing RDs., zero RD was not fixed. The report also does not mention about fixing of RDs. 13. Respondents have also examined three DWs. DW-1 Satish Kumar has proved Ex. DW1/A-1 to Ex. DW1/A-37 relating to the damage reports and correspondence of damages accrued at various sites of the project. 14. DW-2 Roshan Lal has produced the record. According to him, as per the record, the damage has occurred due to rains in NH Circle HPPWD Rampur Bushahr. He has proved report Ex. DW2/A-1. According to him, as per Ex. DW2/A-1, a sum of `91,81,800/- was sought as estimate for restoration of damage due to rains and a sum of `62,14,700/- was sanctioned for restoration of the works. 15. What emerges from the statements of PW-2, PW-3 and PW-21, is that the committee has not inspected the work executed between RDs-400 to 450. They have examined the work between RDs-450 to 500. It has come in evidence that work up to 49 meters was executed. The site plan Ex. PW-2/A does not pertain to construction of crate work between RD-400 to RD-450. It has also come on record that there were heavy rains at the time when the work was executed by the M/s. Shimla Hills contractors. The technical committee who has submitted report Ex. PW-1/A, has not fixed “zero” RD at the - 8 - time of carrying out the inspection. The committee has not associated the accused persons at the time of inspection. The prosecution has failed to prove the issuance of any notice to the accused persons. There is no material on record to prove that the accused persons were on the spot and there signatures were obtained in token of their presence. The prosecution has led entire evidence with respect to RDs.-450 to 500. The members of the committee have not retained the rough notes and the same were destroyed. Rather, the report has been prepared in the Enforcement office at Shimla. Surprisingly, there is no mentioning about the execution of work between RD-400 to RD- 450, location No. III in Ex. PW-1/A at Sr. No. 21. It is also evident from Ex. DW-1/A-12 at Sr. No. V that partial damage was caused to the work due to heavy rains. This probablises the defence of the accused that there were heavy rains, which has resulted in damage to the work on the site. 16. 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 17, 2011. (bhupender) - 9 - - 10 -