Himachal Pradesh High Court
State Of H.P. vs Ishwar Dass And Ors. on 17 February, 2005
Equivalent citations: 2006CRILJ46
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. The State of H. P. has filed this appeal against the judgment dated 31-7-1995 passed by learned Special Judge, Hamirpur in Corruption Case No. 3 of 1989. By the Impugned judgment and order, the learned Special Judge has acquitted the respondents for the offences under Sections 204, 218, 409, 411, 467, 468, 471, 477, 120-B of the Indian Penal Code (for short I. P. C.) and Section 5(2) of the Prevention of Corruption Act, Sections 5, 6 and 10 of Prevention of Specific Corrupt Act, 1983.
2. The prosecution case was that Ishwar Dass respondent No. 1 herein was posted as Store Keeper in Irrigation and Public Health (I. P. H.) store at Didwin Tikker, Sub-Division Barsar in the year 1986, Karan Singh-'Pathania-respondent No. 2 was posted as Junior Engineer in Chakmoh section of I. P. H. Sub-Division Barsar and PW-27 Rajinder Kumar, Junior Engineer was its incharge. Dev Raj-respondent No. 3 was the contractor and a cement dealer. In the year 1986 some project in 'Deot-Sidh' area was under construction. There was another I.P.H. store at 'Bihal' which was under Sub-Division Bhota, Kiran Singh Pathania-respondent was incharge of that store as well.
3. It was the admitted case of the parties that if any store item was required to be used within I. P. H. Division. The J. E. incharge was competent to prepare the indent and send the same to the Executive Engineer Incharge after recommendation of the Assistant Engineer requiring those items and after the approval from the Executive Engineer, the Assistant Engineer used to issue the orders for taking out the store articles so required. Junior Engineer Incharge of the store was to supply the indented articles to the Junior Engineer of the scheme, where the articles were in fact required to be utilized. If the articles of minor amounts were involved and required urgently, the Assistant Engineer Incharge was competent to approve the indent on behalf of the Executive Engineer Incharge.
4. The case of the prosecution against the respondents was that Karan Singh Pathania, J. E. had prepared the indent (Ext. P-30) for the issuance of 400 bags of cement on the recommendation of PW 29 M, C. Dhiman, Assistant Engineer. The indent was sanctioned by the Executive Engineer Incharge. The cement was required to be lifted from the I. P. H. store Didwin-Tikker where Ishwar Dass was the Store-Keeper. PW-27 Rajinder Kumar, J. E. had maintained liability register (Ext. P- 3) being the Incharge of Didwin Tikker Store. A Bin Card (Ext. P-1) was also maintained in the said store wherein the G. R. indent number, quantity of the cement supplied against the Indent and balance in the store was shown under the signature of Store- Keeper or the Junior Engineer Incharge. The quantity of the cement which was taken out from the store used to be shown in outdoor register (Ext. P-2) which was also required to be signed by the J. E. who had demanded the cement on the basis of the indent. At the time of lifting the cement bags from the store, challan (Ext. P-3) was required to be issued showing the name of the official to whom the indented cement was issued, indent number, name of work and vehicle number along with its quantity etc. was required to be entered therein and the issuing authority was under duty to put his signature on the challan. The copy of the challan shall accompany the cement bags and it was required to be signed by the receiving person at the destination. If the indented articles/ Items were taken in departmental vehicle the entry to that effect was required to be made in the log book (Ext. PAA).
5. When the material reached at the site of work, M. A. S. register (Ext. P-31) was required to be maintained giving the reference of the indent number, the articles received on the spot, source of receipt or issue were required to be indicated. The utilization of the articles was required to be shown daily in the job vide Measurement. Book (M. B.) by the J, E. under whose control/supervision the work/job was undertaken. The further ease of the prosecution was that PW-7 Ved Parkash in November, 1985 was posted as labourer in the Tikker Kunah Khad Satraru Project gave a statement (Ext. PA/1) under Section 154, Cr. P, C. to PW-47 Rohli Ram, Inspector Enforcement on 25-10-1986 at about 4 P. M. on the basis of which F. I. R. Ext. PA was registered stating therein that on 26-9-1986 when he came to Didwin Tikker Store from Dam site, the noticed truck No. HIM-2700 in which cement was being loaded by Dev Raj respondent with the help of Ishwar Dass Store-Keeper. PW-7 was told by Ishwar Dass- respondent that the cement belonged to Kiran Singh Pathania, J. E. and the same was being sent to 'Deot-Sidh'. PW-7 took lift in the said truck up to Bhota but instead the truck was taken to 'Didwan Tikker' and not to 'Deot-Sidh'. The driver got baffled as a result thereof, the truck struck against the Verandah. PW-7 got down and the truck was driven towards Tikker bazaar. He went to Ishwar Dass-respondent and apprised him about the entire episode. Ishwar Dass revealed that Dev Raj-respondent had purchased 200 bags of cement from Kiran Singh Pathania, J. E. at the rate of Rs. 57/- per bag and a sum of Rs. 10,200/- was paid by him (Dev Raj) to the Junior Engineer.
6. On the registration of the F. I. R. (Ext. PA) the Investigation commenced. During the investigation, it came to light that K.S. Pathania, J. K. had destroyed the pages of log book (Ext. PAA) and the challan accompanying store items. The police had taken into possession the log book of truck No. HPH-5100 vide seizure memo Ext. PAH dated 28-10-1986, challan book (Ext. P-4) vide seizure memo (Ext. PC) and another challan book dated 15-11-1986 from PW-33 Yashpal who at the relevant time was working as labourer on muster roll in the office of J. E. I. P. H. Chakmoh. It also came to light that K.S. Pathania, J. E. had replaced the page numbers 1, 1-A, 28 and 28-A of the log book of truck No. HPH-5100 (Ext. A-1) and made entry of 200 bags each on 17-9-1986 and 22-9-1986 against 100 bags each day. He had shown 400 bags received in M. A. S. register (Ext. P-31) (A.2 page 31(A) incorrectly. He also used cement below specification and made wrong entries in the M. B. No. 413 pages 52 M. B. No. 449 page 55, M. B. No. 397 page 97, M. B. No. 415 page 15 and M. B. No. 413 page 52, dated 16-9-1986. He also mentioned P/Lec of 1:6:12 of 22/a x 1-30 x a -- 30 x 0 -- 15 but the thickness of the lair (layer) of the project on digging was found only 4 C. M. instead of 15 C. M. In M.A.S. register at page 23 (5/36), K.S. Pathania had shown the issuance of 200 bags of cement with reference to MBS 428 at page 17, but at Sr. No. 4, the consumption of 100 bags only were shown on 2-6-1986. Thus, he had kept 100 bags for his personal use.
7. All the above said documents were sent, for the examination of the Examiner Questioned Documents, Govt. of India. According to PVV-48 Sh. S.K. Saxena, the Expert, the above entries were found in the hand of J. E, Shri Saxena submitted his report (Exts. 48A/ to 48/92). He opined that the pages were also found torn from the Log Book (Ext. PAA) and, therefore the documents were forged, misutilized and destroyed.
8. The samples of the work done were taken from the spot and sent to the Forensic Science Laboratory for examination which did not confirm to the standard required for specification affecting the quality, workmanship, strength and life of the works, thereby causing substantial loss to the department and also to the Government. On the basis of the material collected by the Investigating Officer, it was found that respondents-Ishwar Dass and Dev Raj had conspired with respondent- K.S. Pathania and all of them dishonestly and fraudulently misappropriated the cement bags of the Government for personal gains. Ishwar Dass had also forged the store documents in collusion with K.S. Pathania, J. E. Dev Raj had stored the cement bags in the shop of PW-6 Ranjit Singh which were recovered by the Police during the investigation of the case.
9. On completion of the investigation, charge sheet was laid against the respondents before the learned Special Judge who on prima facie satisfaction framed the charges against the respondents for the commission of the above said offences. The respondents pleaded not guilty to the charges and claimed to be tried.
10. In support of its case, the prosecution examined as many as 49 witnesses and also relied upon the documentary evidence placed on record. The respondents in their statements recorded under Section 313, Cr. P. C. denied the allegations appearing against them. They pleaded that it was a false case planted against them and claimed to be innocent. In defence DW-1 Gian Chand and DW-2 Des Raj were examined by them. On appraisal of the oral and documentary evidence on record the learned Special Judge came to the conclusion that the prosecution has failed to prove the charges against each of the respondents beyond reasonable doubt and accordingly acquitted them. Hence, this appeal by the State Government.
11. We have heard Mr. Som Dutt Vasudeva, learned Addl. Advocate General for the appellant-State and Pt. Om Parkash, Advocate for the respondents. The learned Addl. Advocate General contended that the Special Judge has failed to place reliance upon statement (Ext. PAC) made by Ishwar Dass-respondent before PW-21 Shri K. C. Negi the then Chief Judicial Magistrate to become approver on his request whereby he has imputed the entire allegations of removing the cement bags from the store by K.S. Pathania-respondent out of which 200 bags of cement had been sold to Dev Raj Contractor. The said statement was corroborated by indent (Ext. P-30), challan (Ext. P-4), out door register and Log Book (Ext. PAA). He then contended that all those documents were tampered with and M. Bs. did not show the utillzation of the cement for the construction of the projects. The learned Additional Advocate General has made reference to the statement of K.S. Pathanla under Section 313, Cr. P. C. to contend that he has admitted having signed the above documents and the cement bags were transported under his instruction. Even PW-29 Sh. M. C. Dhiman has proved his handwriting on the documents. Removal of pages in the Log Book as stated by PW-48 Sh. S.K. Saxena hand writing expert and also the identification of 100 bags on the page of the Log-Book of the departmental vehicle No. HPH-5100 have fully proved the charges against the respondents. The learned Addl. Advocate General has also referred to the statement. (Ext. PW-6/A) of PW-6 Ranjit Singh recorded under Section 164, Cr. P. C. and also the recovery of 39 bags of levy cement vide memo (Ext. PL) corroborated by the report of the Forensic Science Laboratory on the samples taken.
12. We have given our thoughtful consideration of the submissions of the learned Addl. Advocate General and re-appraised and scrutinized the entire material on the record. The learned Chief Judicial Magistrate, Hamirpur did not tender pardon to Ishwar Dass-respondent as his statement (Ext. PAC/1) was found self exculpatory. It Is well settled that the confession of a co-accused is not substantive evidence. Section 30 of the Indian Evidence Act merely authorizes to be called it in aid, in appropriate cases. It can be used only for lending the assurance and It is to be merely an element in considering the evidence in the case, but it cannot be called in aid to supplement evidence otherwise Insufficient and in no case can It be used to fill up the gaps in the prosecution evidence. (See : Uttam Raja Raj v. State of Maharashtra 1978 Cri Li 935 (Born) and Param Hans Yadav v. State of Bihar (1987) 1 Crimes 894 : 1987 Cri LJ 789 (SO).
13. In the light of the above well settled proposition of law, the alleged confessional statement (Ext. PAC/1) can be used against other respondents If there is some substantive evidence against them Ishwar Dass and K.S. Pathania-respondents have admitted having received 400 bags in the I. P. 11. Store Dldwin against the indent (Ext. P-30). It is also their admitted case that the cement in question was entered in the Liability Register (Ext. P-3) and also in the Bin-Card (Ext. P-1). While transferring the cement to the site of the project, it was required to be shown in the outdoor Register (Ext. P-2) duly shown in the challan (Ext. P-4) which was issued by Ishwar Dass Store-Keeper.
14. PW-47 Inspector Rohil Ram has proved on record that he inspected I.P.H. Dldwin Tikker Store in the month of September, 1986 and found all the store articles intact according to the record maintained in the store.
15. PW-7 Ved Parkash complainant made statement (Ext. PA/1) on 25-10-1986 alleging misappropriation and mis-utilization of the cement bags. This witness has not supported his earlier version made in the statement (Ext. PA/1) and he was cross-examined in detail by the learned Public Prosecutor. He reasserted that he never gave statement (Ext. PA/1) to the police. His version was that his signatures were obtained on the blank papers by the police. In the cross-examination conducted by the respondent, he stated that he was deputed to check the flow of water in the Gauge meter during 9 a.m. to 5 p.m. when he was posted as labourer in Tikker Dam Kunah Khud Project and he had no business or to discharge duty in the I. P. H. Store Didwin. He categorically stated that he had never made any statement to the police on the. basis of which First Information Report (Ext. PA) came to be recorded.
16. The next piece of evidence relied upon by the prosecution against the respondents was handing over of Rs. 3,300/- by PW-8 Keshri Devi on 25-10-1986 to the investigating Officer in the presence of PW-26 P.N. Singal, Sub-Divisional Officer which were taken into possession vide recovery memo (Ext. PF). PW-8 Keshri Devi stated that Rs. 3,300/- were handed over to her by PW-8 Jagdish Boldar saying that the said amount was found lying near the outer gate of the store. She kept the amount with her, presuming that some person might have lost the said amount and she would pay it to the rightful claimant, but nobody came forward to claim the amount. She paid the amount to the Investigating Officer. She was cross-examined by the learned Public Prosecutor but denied the suggestion of the prosecution that on 26-9-1986 Ishwar Dass-respondent had sold 200 bags of cement for Rs. 10,000/- and the amount of Rs. 4,600/- was paid to her and Rs. 1,300/- were spent by her, thus the balance amount of Rs. 3,300/-was handed over by her to the Police. She denied having made earlier statement (Ext. PJ) recorded by the Police under Section 161, Cr. P. C. On re-appraisal of the testimony of PW-8, it is not established by the prosecution that the recovery of Rs. 3,300/-from this witness has got nexus with the alleged commission of crime by the respondents. This amount has remained unclaimed by the claimant.
17. Now coming to the recovery of Rs. 500/- from Ishwar Dass-respondent in the Rest House vide recovery memo (Ext. PF), the prosecution has relied upon the evidence of PW-5 Roshan Lal. According to this witness on 31-10-1986 Ishwar Dass was in the P.W.D. Rest House at Bhota. The Investigating Officer was demanding an amount of Rs. 500/- from him but he was not having the said amount with him. Ishwar Dass was weeping. He borrowed Rs. 500/- from some person and paid the same to the investigating Officer in his presence which was taken into possession vide memo (Ext. PF). This witness in cross-examination has admitted that Ishwar Pass-respondent, was called daily for interrogation by the investigating Officer for five days continuously. PW-6 Ranjit Singh the second marginal witness of recovery memo (Ext. PF) stated that Ishwar Dass-respondent had not paid any amount to the Investigating Officer in his presence. In the teeth of the evidence of both these witnesses, it cannot be held that Ishwar Dass-respondent received Rs. 500/- as price of sale of the cement bags as alleged by the prosecution.
18. In support of the allegation of transportation of 100 bags at one time and the sale of 200 bags to Dev Raj-respondent, the prosecution has relied upon indent (Ext. P-30), challan (Ext. P-4), out Door Register (Ext. P-2) and Log Boole (Ext. PAA). PW 25 Chaudhury Ram, Cleaner of truck No. HPH-5100 stated that entries of cutting from 100' to 200' bags could not have been done by K.S. Pathania-respondent unless he was accompanying the vehicle, in question. The entry in the Log Book (Ext. PAA) was either required to be made by the driver of the vehicle or any other official accompanying the said vehicle. On bare perusal of Indent (Ext. P-30), in respect of 400 bags of cement, we find no erasing or overwriting except on the reverse side of the document which has shown the issuance of '200' bags on 17-9-1986 against 100' bags (Q. 14} whereas on 22-9-1986 there is a reference of issuance of '200' bags. This overwriting was admittedly in the hand of Ishwar Dass-respondent, who in his examination under Section 313, Cr. P. C. has stated that on 17-9-1986 only 100 bags were issued from the store, as desired by K.S. Pathania-respondent and this fact was reflected in Indent. (Ext. P-30) but on 16-9-1986 the departmental truck No. HPH-5100 was also found parked in the premises of the store. On the next, morning, PW-Chaudhary Ram Cleaner was cleaning the truck with the water and he got loaded 100 bags of cement of K.S. Pathania-respondent against the indent which were so entered in the Outer Door Register (Ext. P-2) on the reverse side of page 135. Its entry (Q. 12) was also made along with its challan (Ext. P-4) (Q-10) but later on PW-20 Balwant Rai driver of the truck arrived at the store and inquired about the indented quantity loaded in the truck. On coming to know about the loading of 100 bags, the driver told Ishwar Dass-respondent to load 100 bags more, so that the cement bags against Indent (Ext. P-30) could be taken into two trips to Chakrnoh Section. Therefore, 100 more bags were loaded in the truck and the corresponding change of figures '1.' to '2' to make '200' bags from '100' bags was made in the documents. He put his initial on the cutting.
19. PW-20 driver and PW-25 Cleaner of the truck have not supported the case of the prosecution. They stated that on 17-9-1986 and also on 12-9-1986 the truck carried 200 bags of cement each day from Didwin store to Deot Sidth (Bihal). PW-25 stated that he did not know who had made the entry in the relevant receipt and the register etc. at Bihal. He denied having made earlier statement (Ext. PAF) recorded by the Police under Section 161, Cr. P. C. In the cross-examination by the respondents, he stated that on both these occasions K.S. Pathania-respondent had not accompanied them to Tikker to take the delivery of the cement. He further stated that Log Book (Ext. PAA) was handed over to S. C. Katoch, J. E. on 1 -10-1986 and at that time no leaves of the Log Book were missing. He also admitted the suggestion of the respondents that on 17-9-1986, initially 100 bags of cement were loaded in the truck but on his intervention 100 more bags of cement were loaded. Thus, the entry was accordingly corrected from '1.00' to '200' bags by Ishwar Dass-respondent on the spot and corresponding corrections were also made in the Log Book as well as in the challan (Ext., P-4) on 17-9-1986. On re-appraisal of the entire evidence of record we held that the prosecution has failed to prove, by leading cogent and reliable evidence, that only 100 bags of cement were carried in the truck on 17-9- 1986 and it can safely be said that the signature of K.S. Pathania respondent could be taken on Log Book on the arrival of the consignment as explained by the respondents.
20. In support of the recovery of 39 bags of levy cement, the prosecution has examined PW-6 Ranjit Singh who made a statement (Ext. PW-6/A) under Section 164 Cr. P. C. on 3-11 -1.986 before the Chief Judicial Magistrate to the effect that on 26-9-1986 at about 4,30 P. M. when he was working in his field. Dev Raj Respondent got down from the truck and represented that he had loaded cement in the truck. He stated that it was raining on that day and there was no Tarpoline covering the back side of the truck and the truck had also developed some mechanical defect on the way when they were going from Didwin to Aman side. He stated that he kept the cement bags in his shop. The witness asked Dev Raj-respondent if the cement was of a disputed nature, but he said that he had got the agency of the cement. He permitted Dev Raj to store the cement, in his shop situated by the road side. The premises were locked by Dev Raj and later on some cement bags were removed with the help of two three labourers. Dev Raj respondent thereafter did not return for about 5 or 6 days. He asked Dev Raj to remove the balance cement bags but again he replied that as he had an agency of the cement and if the local persons wanted to purchase the same, he (PW-6) could sell cement bag at the rate of Rs 70/- on behalf of Dev Raj-respondent also settled the rent of the shop at the rate of Rs. 50/- per month. According to him on 30-10-1.986, the police raided his premises and recovered 39 bags of levy cement there from. PW.6 in cross-examination 26 -11 -1990 admitted that during the investigation the police had recovered 30-40 cement bags from his possession. He has categorically admitted that when his statement (Ext. PW-6/A) was recovered by the learned Chief Judicial Magistrate, he was accompanied by the Police. According to him, he never sold the cement on behalf of Dev Raj-respondent. He was again examined on 21-8-1993, but resiled from a. portion of his statement (Ext. PW-6/ A), though he admitted having kept the cement in his premises on being asked by Dev Raj-respondent but at the time of its re loading he did not name Dev Raj being present there. In the cross-examination by learned Public Prosecutor, the witness stated that he did not remember whether Dev Raj had employed some labourers to keep 101 bags of cement in his shop.
21. Admittedly, Dev Raj-respondent was a license holder for the sale and purchase of cement at the relevant time. His license was produced on record mark. Ext. P-24 which was valid during the said period. In his statement under Section 313 Cr. P. C. Dev Raj respondent had denied having removed 200 bags of cement from I. P. H. store Didwin Tikker in a private truck No. HIH-2700. he also denied having kept the cement bags in the shop of PW-Ranjit Singh but expressed his ignorance if 39 bags of levy cement were recovered by the Police from the premises of PW-6 vide memo. Ext. PL. He also denied the suggestion that he had authorized PW-6 to make safe of the cement at the rate of Rs. 70/- per bag. In support of the allegation that Dev Raj-respondent kept 39 bags of levy cement in the shop of PW-6, the prosecution examined PW-24 Umesh Kumar Gautam, the official of A. C. C. Cement Plant, Barmana who submitted his report (Ext. P-25) supported by the documents (Exts. P-26 and P-27) to show that 39 bags of cement shown to him by the Investigating Officer kept in a Pump House of I. P. H. D. Store at Tikker were of levy cement of ACC Barmana Cement Factory. In his defence, Dev Raj-respondent stated that he did not make sale of levy cement but he used to sell C. C. 1. cement. In support of his defence, Dev Raj respondent examined PW-1 Gian Chand. Up-Pradhan of Gram Panchayat Didwin. DW-1 stated that in the month of October, 1986 he was working as a Carpenter in Tikker in 'Dogra Boot House' in village Tikkri, One Subedar of village Bndhar demanded few bags of cement from Dogra on loan which were given to him and later on the case was instituted against Dev Raj-respondent. In cross-examination, he staled that at the time of loading of cement bags, Dev Raj-respondent was not present there. DW-2 DES Raj, the Secretary Co operative Society. Didwiri stated on the basis of the sale register of the society that on 11-2- 1986, 50 bags of levy cement were supplied to Jagjit Singh Dogra resident of Chokar who was running a Boot shop at Tikker. Second consignment of 15 bags was also supplied to him on 2,2-9-1986 and in support of his version he has proved on record certificate (Ext. DX).
22. On critical examination of the above evidence, we find that it docs not stand established that 39 bags of levy cement belonged to the I. P. H. Store of Didwin. PW-7 informant did not support the prosecution case. Before his statement (Ext. PA/A) was recorded, the Investigating Officer found all the store items correct as per the record of the store. PW-11 Prem Singh, Driver has also not supported the case of the prosecution in supplementary statement (Ext. PH) PW-15 Gurdas Ram, a labourer working in village Water Supply Scheme Chakmoh deposed that on 17 9-1986 and 12-9-3986 consignments of 200 bags on each day were received at Chakmoh Water Supply Scheme. He denied the suggestion of the learned Public Prosecutor that the consignment of 100 bags on each day was received at Chakmoh. In the cross examination of the respondents, the witness stated that, the cement was stored at three different places at the shed, pump house and Chowkidar's hut at village Bihal to be used in Chakmoh Water Supply Scheme. PW-16 Surat Ram, mason has also not supported the prosecution case. PW-17 Kuldip Singh, Assistant Fitter, Bihal has produced register (Ext. P-13) to the Police during the investigation of the case. According to him, the stores were checked by the Police and 826 cement bags were found intact therein and this fact has been mentioned in the recovery memo (Ext. PW). He further stated that on 17-9-1986 and 22-9-1986. a consignment of 200 bags of cement was received in the store. He admitted in the cross-examination that at the relevant time about 22 works were In progress which were spread over a distance of about 20 K. Ms. in Chakmoh area which were under the supervision of K, S. Pathania-respondent, The concrete, stones and sand were manually mixed since there was no mechanical device for mixing the material. He also stated that where it was not possible for the J. E. to attend and supervise the on going works at all the places, it was the Supervisor who used to supervise the said works. It has come in the evidence of PW-20 Balwant Rai driver of truck No. HPH 5.100 that he had handed over 200 bags of cement on each clay, i.e. 17-9-1986 and 22-9-1986 at 'Deotsidh' which were transported from Didwin Store. Necessary entry was duly made in the Log Book (Ext. PAA) at page 28. He also stated that challan (Ext. P-4) and Out-Door Register (Ext. P-2) in regard to the consignment were duly signed by PW-25, Cleaner. As noticed in the earlier part of the judgment, PW-25 Chaudhary Ram, Cleaner of the truck has not supported the case of the prosecution but instead substantiated the defence of the respondents.
23. PW-28 M.K. Subhaia, Executive Engineer stated in the cross-examination that at the relevant time K.S. Patham'a-respondent was supervising many works which were spread over about 15 Kms. involving about 100 villages. He has explained that according to the entries in M. B. No. 428 (Ext.P-7) the consumption of cement in the month of May, 1986 as shown at pages 11, 12, 13 and 15 on the basis of the ratio proposed comes to 198.02 bags of cement and it is the same ratio if calculated on the basis of the details given in (Ext. DA) wherein the extracts of the M. B. (Ext. P-7) have been detailed. He also admitted that variations of 5% was allowed on either side in the Schedule and further that according to the calculation given in Ext. DA, the quantity of 100 bags shown in the M. B. (Ext. P-7) at page-17 in the month of May, 1986 was a clerical mistake. He also admitted that the raw water tank and the general pump house were constructed by the department and its drawings were prepared separately but the drawing of the chamber of the water tank was not prepared as it was a minor item. According to him, such chambers are constructed according to the site available.
24. On scrutiny of the above stated evidence, we feel that the supply of cement, in question was made on 17-9-1986 and 22-9-1986 from I. P. H. Store Didwin, whereas the entries in the M. B. (Ext. P-7), with respect to 100 bags would pertain to the month of May, 1986 as deposed by PW-28. PW-29 M. C. Dhiman, Assistant Engineer categorically stated that every month the Log Book (Ext. PAA) was required to be signed by the Sub-Divisional Officer concerned. He stated that the work in Deot Sidh area was going on and he being the Assistant Engineer had not done cent percent checking with respect to the consumption of the material According to him, there were no such parameters on the basis of which the ratio of Bajri, Stones and Sand used in the foundations may be ascertained. The vehicle No. HPH-5100 was under the control of PW-31 S. C. Katoh J. E. He stated that the Log Book of the truck (Ext. PAA) was received on 1-10-1986 to work out the out-turn of the vehicle and he did not find any missing leaf there from. PW-32 Jagdish Singh was the witness with respect to the checking of the store which, according to him, was found correct. He admitted in the cross-examination that 40 bags of cement were purchased by him from Co-operative Society Tikkar which were given to PW-6 Ranjit singh on loan. Neither this witness nor PW-6 raised any claim regarding the return of the cement bags.
25. PW-39 Amar Nath Dhiman, J. E. was a witness to the entries in the Log Book (Ext. PAA) for the month of July 1986. He stated that there was no entry made in his hand at pages, 1, 10, 28 or 28-A in the said Log Book, therefore, he could not say whether leaves of the pages were already in the Log Book or were changed later on. He stated that the Log Book remained in the custody of the driver till the last date of the month and thereafter it was deposited with J. E. Incharge to draw the out-turn of the whole month and during the month of September it never came in possession of K.S. Pathania-respondent.
26. From the discussions of the above said evidence, it cannot be definitely concluded that on both days i.e. 17-9 1986 and 22-9-1986 only 100 bags of cement were transported on each day and also that the pages of the Log Book (Ext PAA) were removed and reinserted by the respondents. The Log Book was to be deposited with Junior Engineer after the end of each month and no tampering was noticed by any of the officials in the Log Book. The learned trial Court has rightly observed that since both the official and non-official witnesses have tried to suppress the true facts and there is no other cogent, reliable and convincing evidence on record, the respondents cannot be held guilty of the charges framed against them.
27. The police have also collected the samples of the works which were allegedly under the charge of K.S. Pathania-respondent. In this behalf, the statement of PW-12 Chhajju Ram, Dy. S. P. has to be noticed. According to him he along with PW-49 S. P. Kaushal, S. P. was present on the spot along with Executive Engineer. PWD (B&R) and the Sub Divisional Officer, I. P. H. The samples of concrete, mortar and sand were taken vide memo Exts. PN to PR, which were scaled with seal impression 'A', In the cross-examination he stated that there were seven water tanks in village Bihal, whereas the samples were taken from one tank which was newly constructed and one more big tank was also under construction. PW-44 R. C. Vashisht, Executive Engineer who was present on the spot has stated that he did not have any information about the quality of the material. On seeing the sample collected by PW-12 in the presence of PW-49, He stated that samples were taken from the head works of the Water Supply Scheme and the blue prints of the said works were not. taken into possession by the police nor were the same shown to him. The case of the prosecution was that the base of the water chamber was required to be 15 cms. in the ratio of 1:6:3.2 as noted in the M. B. (Ext. P-38), page 62 but. according to the report of the Forensic Science Laboratory (Ext. PAP) it was sub-standard, thus K.S. Pathania respondent was guilty of not using the proper ratio.
28. As noticed in the earlier part of the judgment, K.S. Pathania respondent was neither present on the spot when the sample of the water chamber was taken nor was he associated in the process. It was incumbent upon the Investigating Officer to have taken the record of the blue prints of the on-going constructions which were under the charge of K.S. Pathania and then sample should have been taken of the on-going works in order to overrule any possibility of taking the samples from any other works than those under the supervision and charge of K.S. Pathania-respondent. It is not clear from the evidence led by the prosecution as to who had pointed out those places to the Investigating Officer from where the samples were taken. The prosecution has miserably failed to lead independent evidence to corroborate the alleged confessional statement (Ext. PAC/1) made by Ishwar Dass respondent in the presence of Chief Judicial Magistrate. The learned Additional Advocate General has cited various decisions before us during the course of the hearing of the appeal, but on perusal of the decisions, we find that the ratio of the said decisions is not of any help to the prosecution in the facts and circumstances of the present case. Therefore, we do not think it necessary to discuss the said decisions to unnecessarily burden the judgment.
29. On re-appraisal of the entire oral and documentary evidence on record relevant to the present case, we are of the view that the learned Special Judge, has properly appreciated and scrutinized the material on record and we do not find any infirmity, perversity or illegality in the judgment of acquittal to all for interference in this appeal.
30. No other point was urged by the learned Counsel for the parties.
31. In the result, for the above said reasons and discussion, there is no merit in this appeal and the same is accordingly dismissed. Bonds furnished by the respondents are discharged. The case property shall be dealt, with in accordance with the order and direction of the learned Special Judge.