JUDGMENT M.R. Verma J.: Feeling aggrieved the appellants-accused (hereinafter referred to as the accused’) have preferred the present appeal against the judgment dated 29.3.1994 passed by the learned Special Judge, Shimla, whereby the accused have been convicted under Sections 417IPC and 465/109IPC and each of them has been sentenced to pay fine in the sum of Rs. 7000/- under Sections 417 IPC and fine of Rs. 800/- under! Sections 465/109 IPC and in fault of payment of fine, they have been directed to undergo simple imprisonment for six months on each count. 2. Brief facts leading to the presentation of this appeal are that in the year 1983 scab disease spread in apple growing belts in the State of Himachal Pradesh, thereby damaging orchards, production therefrom and as a consequence economy of the State. With a view to compensate the orchardists/apple growers, the State Goverrtment decided to procure the scab affected apples @ Rs.50/- per quintal and then destroy them. A scheme was accordingly formulated. Subsequently, there were allegations regarding fraudulent inflated excess payments having been made under the said scheme to the apple growers. A Commission of Inquiry was, therefore, appointed by the State to go into the allegations. The Commission of Inquiry found that accused Tara Dutt sold 225.50 quintals of scabbed apples on 8.10.1983 and 315 quintals were sold by him on 24.10.1983, to a team appointed for the purpose of such purchase which was handed by one Rajinder Sharma, who was one of the accused before the trail Court. So sold scabbed apples were mentioned as the produce from his orchard known as Sher Phal Udyan, Chhajpur in the receipts issued about the sale of two lots as aforesaid. He received a payment of Rs.27,025/- on account of the sale of said scabbed apples. Accused Shyam Dutt, 119 quintals scabbed apples on 15,9,1983, 29.4 quintals on 29.9.1983 and 60.30 quintals on 14 9.1983 to the team headed by S.N.KhuIlar who was also one of the accused before the trial Court. The name of the orchard from which these apples were allegedly procured were given in the receipts as Tara Shyam Vatika and Naouse Orchard. He received a sum of Rs. 10,435/- on account of the aforesaid scabbed apples. The Inquiry Commission got the area of orchards claimed by the accused persons as their orchards/demarcated and the apple trees standing thereon counted. He received a sum of Rs. 10,435/- on account of the aforesaid scabbed apples. The Inquiry Commission got the area of orchards claimed by the accused persons as their orchards/demarcated and the apple trees standing thereon counted. Before the Commission, the accused persons claimed that they had 550 apple trees standing on their land. However, when the District Horticulture Officer went to the spot to work out the optimum produce from the apples, he was shown 874 apple trees, some of which were standing on the land measuring 13.01 big has encroached by the accused persons. According to the assessment of the District Horticulture Officer, the optimum produce from the apples trees shown to be belonging to the accused persons could be 666.94 quintals whereas they had sold 749.20 quintals of scabbed apples in all to the Procurement and Destructions Party. The Commission also found that the accused persons forged most of the receipts regarding sale of the scabbed apples. As a consequence, the Commission concluded that the accused persons, in connivance with the members of the Procurement and Destruction Party, constituted by the Government, received fraudulently wrongful payments by forging the receipts. 3. On the basis of an extract of the report of Inquiry Commission, a case was registered against the accused persons and 9 others under Sections 468,420,120-B IPC and Section 5(2) of the Prevention of Corruption Act, 1947. On investigation and on being satisfied of the commission of the said offences, the investigating agency submitted the charge sheet against the accused persons and 9 others. 4. Three different charges, one under Section 420 IPC against accused persons, another under Sections 468,420/469 IPC, Section 5( 1 )(d) of the Prevention of Corruption Act and Section 120-B IPC against accused persons and their co-accused Durga Singh, Prem Dass, Shiv Dutt, Hari Ram, Jia Lal, Bhawani Singh, S.N.Khullar, Devinder Singh and Rajinder Sharma and the last under Section 5(1 )(d)/ 5(2) of the Prevention of Corruption Act against co-accused Rajinder Sharma, S.N.Khullar and Devinder Singh, were framed by the learned Special Judge, Shimla against the accused persons and their co-accused. 5. To prove the charges against the accused, prosecution examined as many as 18 witnesses. 6. The accused were examined under Section 313 Cr.P.C. wherein they admitted the sale of the scabbed apples, the receipts therefore and the payment of price thereof, as is the case of the prosecution. 5. To prove the charges against the accused, prosecution examined as many as 18 witnesses. 6. The accused were examined under Section 313 Cr.P.C. wherein they admitted the sale of the scabbed apples, the receipts therefore and the payment of price thereof, as is the case of the prosecution. However, the allegations about inflated quantity of stock of scabbed apples having been sold by them with a view to cheat the State Government and thereby procuring the higher price have been denied by them. The accused led defence evidence and examined DW-1 Dr.S.K. Chopra, DW-2 D.R.R.P. Awasthy and DW-3 Amin Chand, primarily with a view to show that the assessment of the likely crop which could be grown in their orchards was miscalculated by the District Horticulture Officer. 7. The learned Special Judge, vide the impugned judgment, acquitted 9 of the co-accused in the case but convicted and sentenced the accused-appellants as aforesaid. Hence the appeal. 8. The appeal was earlier heard and allowed by a learned Single Judge of this Court vide judgment dated November 19,1997 on the ground that taking of cognizance of the offences of which the accused persons were convicted, was barred in view of the provisions of Section 468 Cr.P.C. 9. The State, however, preferred an appeal before the Honble Supreme Court which held that the trial Court could take cognizance of the offences and remanded the appeal back, with the direction to dispose of the appeal on merits. 10. I have heard the learned counsel for the accused and the learned Additional Advocate General for the State and have also gone through the records. 11. Before I proceed to examine the matter on merits, it may be pointed out that the acquittal of the accused/appellants for the offences they were originally charged with and of their none co-accused has admittedly not been assailed by the State and thus has become final. 12. The accused-appellants have been convicted by the learned Special Judge on the basis of the following conclusions: (a) That the accused were not owing any land\orchard exclusively as such the question of scabbed apples, subject matter of the case belonging to them exclusively, or they being its growers/producers did not arise. 12. The accused-appellants have been convicted by the learned Special Judge on the basis of the following conclusions: (a) That the accused were not owing any land\orchard exclusively as such the question of scabbed apples, subject matter of the case belonging to them exclusively, or they being its growers/producers did not arise. Therefore, by inducing the procurement team to accept the inflated quantity of apple as theirs which was not a fact, apd thus received money as value of fictitious quantity of the scabbed apple, they are guilty of an offence under Section 417 IPC, and (b) that they abetted the commission of forgery within the meaning of Section 465 IPC punishable under Section 465 IPC in as much as they prepared/caused to be prepared false documents, viz, receipts Exs. PS, PS-1 to PS-4 as they falsely filled in an signed these themselves and falsely caused to be filled in/signed falsely by some of the members of the Team and thus also caused loss to the State of Himachal Pradesh. Therefore, they have been held guilty of the offence under Section 465 read with Section 109 IPC. 13. Now I proceed to examine whether the aforesaid conclusions arrived at by the learned Special Judge are sustainable or not. Conclusion (a) supra 14. The learned Special Judge, to arrive at this conclusion has ventured to find out whether the accused, by suggestion or by leading evidence have proved that they owned land/orchard on which the quantity of scabbed apple in question could grow. The trial Court evidently misdirected itself to examine this aspect of the case. It was unwarranted and undesirable to do so in view of the case of the prosecution and it was still worse and highly illegal to ignore the case of the prosecution and to introduce a new case of its own. 15. It is case of the prosecution itself as pleaded in the charge sheet against the accused that the accused/appellants are brothers and are members of a Joint family residing in Sabhad. As per the revenue records, the land is in the name of their father Sher Singh and 874 apple plants of different ages are standing thereon. At the relevant time, accused sold 749-20 quintals of scabbed apple to the procurement team and received the price therefore. As per the revenue records, the land is in the name of their father Sher Singh and 874 apple plants of different ages are standing thereon. At the relevant time, accused sold 749-20 quintals of scabbed apple to the procurement team and received the price therefore. The land owned by Sher Singh was got demarcated and opinion about the optimum production of apple was obtained from P.C. Pan war, Deputy Directed (Horticulture) who was District Horticulture Officer at the relevant time. It was thus found that from the apple trees standing on the land owned/possessed by Sher Singh, father of the accused, the optimum production of apples could be 666,95 quintals only whereas the total quantity of scabbed apple sold by the accused was 749.20 quintals. Thus the prosecution claims that the accused procured the receipts regarding sale of scabbed apple in such quantity which could not be grown in the orchard of their father. To be precise, according to the prosecution accused manipulated 82.26 quintals of scabbed apple over and above what they could sell from the said orchard. Thus, apparently and unambiguously as per the prosecution case, the produce sold was from the orchards owned by Sher Singh. The only accusation against the accused is that they fraudulently inflated the quantity of the I apple sold by them. Against this background, the only question to be examined was whether the accused fraudulently managed to get receipts for inflated of scabbed apple and whether the orchard admittedly owned/possessed by their father was incapable of producing the entire quantity of sold scabbed apples. The accused thus were not to prove growing the quantity of the apple sold by them. 16. Be it stated by way of clarification that admittedly it is not the case of the prosecution that Sher Singh, father of the accused, sold the produce of the apple orchard of his own and the produce thereof was not sold by the accused. 17. In view of the above, the conclusion (a) arrived at by the learned Special Judge on the premises that the accused did not own orchard, therefore, could not sell the scabbed apple is unsustainable. 18. It has, however, to be examined whether the optimum production of apple in the orchard of father of the accused could be 666.95 quintals only whereas they had admittedly sold 749.95 quintals of scabbed apple. 18. It has, however, to be examined whether the optimum production of apple in the orchard of father of the accused could be 666.95 quintals only whereas they had admittedly sold 749.95 quintals of scabbed apple. There is ho direct evidence that total apple produce from the orchards of father of the accused in the relevant year was only 666.95 quintals. To prove the optimum production, the prosecution has relied solely on the assessment report (opinion about optimum production of apple from the orchards owned by father of the accused). Ex.PN. Annexed with this report are abstracts of apple plants giving number and ages thereof Ex.PN/1 and details of individual apple plant Ex.PN/2. PW-9 P.C. Panwar has stated that he has prepared assessment report Ex.PN after visiting the spot. 19. The material question, therefore, is whether the assessment report Ex.PN can be relied upon as an expert opinion. 20. In view of the provisions of Section 45 of the Evidence Act, the opinion given by r.n expert is admissible in evidence. To be an expert as contemplated under Section 45 ibid, the witness must have made a special study of the subject or acquired special experience therein. He must be skilled and have adequate knowledge of the subject. (See United States Shipping Board, vs. The Ship "StAlbans", AIR 1931 PC 189 and State of H.P. vs. Jia Lal & others (1997)7 SCC 280. 21. It is in the statement of PW-9 P.C. Panwar that he passed B.Sc. Horticulture (Hon.) in 1959 and worked as Research Assistant/Horticulture in the Agriculture Department from 1959 to 1973 when he was promoted as Horticulture Development Officer. In 1976 he was appointed as District Horticulture Officer and worked as such till November 1986. Thereafter he was promoted as Deputy Director Horticulture. At the time of preparing the assessment report Ex.PN in the year 1984 he was District Horticulture Officer. Thus, there is nothing in this statement which may show that PW-9 has made special study in any particular branch of horticulture science which is not a perfect science like arithmetic. He had admittedly made the assessment of the approximate production potential of the orchard by spur counting method. Thus, there is nothing in this statement which may show that PW-9 has made special study in any particular branch of horticulture science which is not a perfect science like arithmetic. He had admittedly made the assessment of the approximate production potential of the orchard by spur counting method. However he has not admittedly counted all the spurs in the concerned apple trees but had counted the spurs of only a branch/- and multiplied such spurs by the number of other branches to arrive at the total number of spurs. Evidently, the method adopted by him in counting the spurs is improper inasmuch as it is not necessary that all the branches of apple tree will have similar number of spurs. In his reportjie has not mentioned the total number of spurs counted by him. It is admitted by him that pollinators increase the apple production. However, in his report there is no mention about the number and location of pollinating variety of the apple which, at the relevant time, existed in the orchard. It is his admitted case that he has not received training in regard to the assessment of the apple orchard and that their is not specific formula to assess the apple crop of each apple tree and the formula which he has adopted for assessment of the approximate produce from the orchard is not available in any literature on horticulture in the world. This admission on his part is sufficient to reject his assessment report, for the simple reason that he has no training, experience or skill in regard to the assessment of approximate produce of an orchard. It is admitted by the witness that he did the assessment of the orchards in question with the help of B.C.Sharma, Horticulture Inspector, Jubbal and Shiv Singh Chauhan, Horticulture Sub Inspector, Sawra and that their help was necessary in order to make the assessment and without their help he was not in a position to make the assessment. It is not clarified as to what type of assessment was required of an rendered by the aforesaid officials without which this witness was incapable of making the assessment. However, when it is admittedly so, the assessment report cannot be accepted unless said B.C.Sharma and Shiv Singh were examined. Thus, there is not cogent and reliable evidence to hold that PW-9 is an expert in assessing the fruit production. However, when it is admittedly so, the assessment report cannot be accepted unless said B.C.Sharma and Shiv Singh were examined. Thus, there is not cogent and reliable evidence to hold that PW-9 is an expert in assessing the fruit production. Admittedly, there is no acknowledged method of assessment of fruit crop. Therefore, the opinion given by the witness is based merely on his own conception, more akin to surmises and conjectures and is, therefore, not reliable. 22. There is yet another reason to discard the testimony of PW-9 as an expert. He has give similar assessment reports as in hand in many cases of this nature. However, his assessment reports have not been accepted by the High Court and the Apex Court as reliable opinion. (See Mohinder Singh & others Vs. State of H.P., 1997(2) Cur. L.J. (H.P.) 472 (1997(1) SLC123 and State ofH.P. Vs. Jia Lal & Others (1999) 7 SCC280. 23. In view of the above, it is not possible to come to a definite conclusion that the optimum production of apple i»the concerned orchard could not be what had been sold by the accused to the procurement team. There is no other direct or circumstantial evidence to support the prosecution case regarding alleged cheating by the accused. Conclusion (b). 24. Before I proceed to examine the legality and correctness of this conclusion, it is pertinent to refer to the modalities for the procurement and destruction of the scabbed apple which is Ex.PW- 12/A. In these modalities, each team constituted for the purpose, was to consist of one Gazetted Officer, one Inspector/E.O., two other class III officials and two labourers. 25. The function of such team was: "The above team under the leadership if a Gazetted Officer will be a mobile team which will move from center to center and each team will be allotted 6 centres for this purpose. The Deputy Commissioners will ensure that each team is provided with a vehicle/jeep. Officers drawn from the various departments having jeeps will use their own jeeps. In case of shortage the vehicle of other allied departments may be requisitioned. It may also be ensured that each party is given a compact area of operation so that the part does not have to cover longer distance, as in one day they will have to move from one centre to other centre. In case of shortage the vehicle of other allied departments may be requisitioned. It may also be ensured that each party is given a compact area of operation so that the part does not have to cover longer distance, as in one day they will have to move from one centre to other centre. Procurement will be made only once a week at one centre (except Sunday) and the day fixed for procurement at each centre may be announce in advance so that the apple growers of the area covered under a centre may bring scab affected apple only on that day. The Gazetted Officer will be responsible for procurement and destruction of apple produce brought to his centre by the growers/producers. One Inspector/E.O. Will be there to assist the officer of the team and also to lend a helping hand to the record keeper and weighman for maintenance of record etc. One record keeper and one weighman will be provided out of the class III employers with the team. Two labourers will be provided with each team in case of rush of work. One more labourer can be engaged by the Gazetted Officer concerned according to the spot situation. The receipts will be countersigned by the Gazetted Officer Incharge of the team and likewise he will initial each and every entry of the register also. The weighman will be responsible for weighing the produce brought by the growers to the centre. Weighing can be done by weighing the crop by a standar scale like Kilta or Drum. He will also be responsible for preparing the receipt in token of having received the fruit. A form of receipt and register would be as per Annexures A and B. A Carbon copy of the receipt would be retained and required to be maintained for record. It will be the duty of the record keeper to maintain the register and make entries, with regard to the name, address of person, location of his orchard -. Weight of the fruit procured, receipt number, signature of the record keeper and the Incharage of the centre." 26. It is, thus, evident from the aforesaid modalities, that the Gazetted Officer in the team would be responsible for procurement and destruction of the apple produce brought to his centre by the grower/producer. The Record keeper and weighman for maintenance of record etc. It is, thus, evident from the aforesaid modalities, that the Gazetted Officer in the team would be responsible for procurement and destruction of the apple produce brought to his centre by the grower/producer. The Record keeper and weighman for maintenance of record etc. were to be assisted by the Inspector/E.O, the Gazetted Officer was to countersign each receipt and the entries in the Register to be maintained about the procured apple. Weighing of the produce was the responsibility of the Weighman who was further responsible for preparing the receipt in token of having received the fruit. A Register was prescribed to maintain entries about the procured apple and it was the duty of the record keeper to maintain register and make entries therein. Thus, the apples sold by the accused persons were weighed by persons other than the accused, the receipt was prepared by the wieghman and the relevant entries were to be made in the Register by the record keeper. There is not even an iota of evidence to show that the receipts Exs. PSyi to PS/4 were prepared by the accused persons. What can be said on the basis of the opinion Ex.PS/5 read with the statement of PW-14 R.K. Jain, Assistant Government Examiner, Questioned Documents, Shimla, is that the receipts Ex.PS and Ex.PS/1 are signed by accused Tara Dutt and by the one Shyam Singh for him as orchardist and the receipts Exs.PS/4 are signed by Shyam Dutt accused as the orchardist. These signatures are not disputed even by the accused. However, whatever they have signed is a certificate that the produce offered is from their orchard and in case it is found otherwise, they would forfeit the value of the produce and will be liable for action in accordance with law. So far as the receipt part of each receipt is concerned, it is signed by the officials of the procurement party. One more official of the destruction committee had signed the certificate identitying the accused person and certifying that the produce belonged to the orchard of the accused. Thus, the main contents of the receipt specifying the name of the seller, name of the orchard, village and the quantity offered for destruction, have been authenticated by the officials of the procurement/destruction team. Thus, the main contents of the receipt specifying the name of the seller, name of the orchard, village and the quantity offered for destruction, have been authenticated by the officials of the procurement/destruction team. There is no evidence that these main parts of the receipts are either in the handwriting, of the accused or had been got forged by them from the officials signing the receipts who have already been acquitted of the charge of forging the receipts. The accused, therefore, could not have been held guilty of the commission of forgery or abetment of forgery of these receipts. 27. As already stated hereinabove, the procurement and destruction team was to maintain a register also about the particulars of the procured scabbed apple for destruction. In fact, such a register was maintained as is evident from the statement of PW-1 Sewak Ram who had explained to the incharge of the team S.N.Khullar the jnodalities of the procurement when die register, forms and receipts were given to him. He has further admitted that the quantities of the scabbed apple which were procured and destroyed were entered in that register and the bill prepared for payment of trie price used to be verified from that register as well as the receipt book. That register was a vital piece of evidence about the procured quantity of apples. However, the same has not been produced in evidence by the prosecution. Therefore, the only inference which can be drawn is that had such register been produced, it would not have supported the prosecution version. Thus, this conclusion of the learned Special Judge is also not supportable on the basis of the evidence on record and is based on conjectures and surmises. 28. In view of the above, there is no cogent and reliable evidence on record to prove the commission of offences punishable under Sections 417 and 465 read with Section 109IPC for which the accused have been convicted and sentenced by the learned Special Judge. Therefore, the impugned conviction and sentences cannot be sustained. 29. As a result, this appeal is allowed and the impugned conviction and sentences are set aside and the accused are accordingly acquitted of the offences of which they have been held guilty. Fine, if recovered, be refunded to them. 30. The bail bonds furnished by the accused are discharged. Appeal allowed