Chattisgarh High Court
State Of Chhattisgarh vs Safdar Ali on 3 August, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 126 of 2009
The State of Chhattisgarh Through : Special Police
Establishment, Lokayukt, Bilaspur (C.G.).
---- Appellant
Versus
1. Safdar Ali, aged about 56 years, S/o Mohammad Ali,
resident of Momin Para, Raipur, Thana Ganj, District Raipur
(C.G.).
2. Avinash Chandra Sondhi, aged about 57 years, S/o J. Rai
Sondhi, Executive Engineer, Civil Lines, Durg (C.G.).
3. Narmada Prasad Diksena (Deleted)
---- Respondents
For Applicant/State : Mr. Wasim Miyan, Panel Lawyer For Respondents : None Hon'ble Smt Justice Rajani Dubey Judgment on Board 03.08.2023
1. Challenge in the present appeal is to the judgment and order dated 16.03.2002 passed by Special Judge and 1 st Additional Sessions Judge, Bilaspur, in Special Criminal Case No. 13/1995 acquitting the accused/respondents of the charge under Sections 409/34, 467/34, 468/34, 471/34, 120(B) IPC and Section 5(1) (d) read with Section 5(2) of Prevention of Corruption Act, 1947 or Section 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the P.C. Act').
2. Brief facts of the case are that on 26.12.1981, G.K. Tiwari, Superintendent of Police, Special Police Establishment, 2 Lokayukt, received one point report to the effect that in the year 1977, there have been many irregularities with regard to 42998 bags of cement in cement stock of Irrigation Department, Pendra Road, and embezzlement of cement has also been done, whereupon an preliminary inquiry No.581/81 was lodged. From the official record, the Executive Engineer, Irrigation Department, Pendra Road came to know that earlier the State Government had sanctioned 4.35 Lakh and thereafter Rs. 10.20 lakh for Khujji Diversion Project, which was incomplete and for this project, on 22.05.1977 vide Invoice No.53, 2260 bags of cement, on 24.06.1977, for other project 1601 bags of cement and thereafter, on 25.10.1977 and 13.03.1978, total 1200 bags of cement in all 5061 bags of cement were handed over to Sub Engineer Narmada Prasad Diksena (since dead) by Store Keeper Sfdar Ali (accused/respondent No.1), which were described in stock register and the same has been signed by Section Officer A.C. Sondhi (accused/respondent No.2).
3. On 21.03.1983, G.K. Tiwari, Superintendent of Police, along with technical expert D.K. Ghosh, from Lokayukt Office and Sub Engineer S.B. Vishal, S.S. Thakur from Pendra Road and witness Karliniyas, Sarpanch of village Khudri went to the spot at Khujji Project and collected samples of cement concrete from four spot, the same were investigated by the experts, wherein it has been found that 5061 bags of cement were given for the entire work, however, in fact, only 2243 bags of cement were used for the project. The above calculation was made on the basis of proportion of cement found in concrete. As such, remaining 2818 bags of cement were found to be unaccounted for. In the preliminary investigation, the delivery of 5061 bags of cement was found to be registered in the records for the above work, 3 which was not genuine. On the basis of this investigation, report (Ex.P/29) was prepared by G.K. Tiwari, Superintendent of Police and on the basis of which, dehati nalisi Ex.P/30 was lodged and numbered FIR was registered at Special Police Establishment, Bhopal.
4. After obtaining prosecution sanction and after completing usual investigation, charge sheet was filed before the jurisdictional Court, who in turn, framed charges against the accused/respondents under Sections Sections 409/34, 467/34, 468/34, 471/34, 120(B) IPC and Section 5(1) (d) read with Section 5(2) or Section 13 (1) (d) read with Section 13 (2) of the P.C. Act. Statements of the accused/respondents were recorded under Section 313 of the Cr.P.C. Accused/respondent No.2 herein also examined one witness in his defence. The learned trial Court, after appreciating oral and documentary evidence, recorded its finding that the prosecution has utterly failed to prove its case beyond reasonable doubt and acquitted the accused/respondents herein as mentioned herein above. Hence, this acquittal appeal by the State.
5. Learned State counsel submits that the impugned judgment of acquittal has been passed without appreciating the evidence in its true perspective and the same is bad in law. Learned counsel further submits that the acquittal of the accused/respondent is mainly based on report of sample taken by the Deputy Superintendent of Police, which was not sealed before sending it for examination and the same has not been submitted before the Court, but only on the ground of technical mistake committed in taking the sample would not render the whole prosecution case doubtful. Learned counsel also submits that the trial Court has erred in law in acquitting accused/respondents even when there is ample evidence against them.
46. I have heard learned State counsel and perused the material available on record.
7. The acquittal of the accused/respondents is mainly based on the sample of concrete. In this regard, learned trial Court examined the witnesses to Sample Panchanama (Ex.P/1) namely Haribandhu Vishal (PW/1), Dilip Kumar Ghosh (PW/
5), S.S. Thakur (PW/10), G.K. Tiwari (PW/14).
8. Haribandhu Vishal (PW/1), retired sub-engineer posted in Irrigation Department, Pendra Road, was present at the time of sample taken from Khujji Project. This witness has not supported the case of the prosecution and turned hostile. In para 11 of his cross-examination, he has stated that there is prescribed procedure for taking sample, sealing, sending the same for examination but the official of Lokayukt Office did not follow the prescribed procedure of the department. d
9. Dilip Kumar Ghosh (PW/5), Assistant Engineer, has stated that Core Cutting machine was not used while taking the sample of concrete of Khujji Project, the sample of Point was not taken and the sample of concrete was also not sealed, which was mandatory in the case.
10. S.S. Thakur (PW/10), Sub Engineer, has stated that at the time of sample procedure, the accused/respondents were not present there. The sample of concrete was not taken by Core Cutter machine. This witness has also stated that there is prescribed procedure for taking sample of concrete.
11. G.K. Tiwari (PW/14), Retd. Assistant Superintendent of Police, has stated in para 12 of his statement that it has not been mentioned in sample panchanama (Ex.P/1) that by which weapon/machine the sample of concrete was taken. He has admitted that it has not been mentioned in Ex.P/1 that Core Cutter machine was used for taking sample. This 5 witness has admitted that the report of sample has not been submitted as he had been transferred during the relevant time.
12. The learned trial Court having examined the evidence of aforesaid witnesses and other prosecution witnesses recorded the finding that the due procedure was not followed while taking the sample and the same was not duly sealed and no report thereof was produced in the case and held that the evidence relating to sample procedure, analysis report and cement consumption are itself not sufficient to arrive at any definite conclusion. The learned trial Court also recorded its finding that the even if it assumed that 5061 cement bags were given to the accused/ respondents by the department and after receiving the same by accused/respondent A.C. Sondhi and N.P. Diksena the construction work was carried out, then also according to investigation report, the consumption of cement was reduced and the remaining bags of cement was misappropriated, could not be found beyond doubt and acquitted the accused/respondents of the charges levelled against them by extending them benefit of doubt. This Court finds no illegality in the order impugned acquitting the respondents particularly when there is a settled legal position that if on the basis of record two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution thus has utterly failed in proving its case beyond reasonable doubt and the trial Court has been fully justified in recording the finding of acquittal which is based on proper appreciation of evidence available on record. Furthermore, in case of appeal against the acquittal the scope is very limited and interference can only be made if finding recorded by the trial Court is highly perverse or arrived at by ignoring the relevant material and 6 considering the irrelevant ones. In the present case, no such circumstance is there warranting interference by this Court.
13. Accordingly, the acquittal appeal preferred by the State is bereft of any substance and, therefore, the same is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey) JUDGE pkd