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2014 DIGILAW 202 (HP)

State of Himachal Pradesh v. Jagjit Singh Parihar

2014-03-13

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge This appeal by the State is directed against judgment dated 28.5.2009 passed by learned Special Judge (Forest), Shimla in Corruption Case No.50-S/7 of 2003/96 whereby the respondents J.S.Parihar and others have been acquitted of the offences punishable under Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988, Sections 5 and 6 of H.P. Prevention of Specific Corrupt Practices Act, 1983 and Sections 468, 467, 471, 420 read with Section 120-B IPC. 2. The prosecution version which emerges consequent upon the completion of the investigation reveals that during the period 1989-90 certain works were got executed by Sub Division No.V, NJ & D-II Jhakri of which works due to rains of March-April, 1990 were damaged and thereafter, losses were intimated by the then Executive Engineer to the Superintending Engineer. The Superintending Engineer B.S.Kapoor getting suspicion on the amount of damage ordered formation of a committee to inspect the work and find the exact damages to the works so reported. The committee constituted vide Ext.PW26/A-9 for assessing damages comprised of B.S.Kapoor, N.C.Sharma, Assistant Engineer, J.K.Sirkeck, Superintending Engineer, D.R.Gupta, Assistant Engineer and V.L.Gupta. This committee inspected the spot and visited all the sites of which damages had been reported and submitted its report Ext.PW-7/C-1. In its report Ex.PW-7/C-1 the committee categorized the damages under three heads i.e. firstly where damages did occur, secondly where the works were only partially damaged but excess amount of damage had been reported and thirdly where an inspection work having been executed at site was found. The committee on assessment of the above three categories was of the view that damages/loss to the tune of only Rs. 5.14 lacs and not Rs. 53.00 lacs as reported had occurred. This was reported by the committee to the Executive Engineer, NJPC, vide letter Ex.PW-26/A along with details of damages occurred and variations found which are contained in Ext.PW26/A-1. Subsequently vide Ext.PW-26/A the Secretary, HPSEB, constituted another committee of which B.S.Kapoor, Superintending Engineer was member, which rechecked the works and prepared reports Ex.PW-7/A dated 9.7.1990 and Ex.PW-7/B dated 2.8.1990. As per both these reports in all 44 works were inspected on 23rd and 24th May, 1990 and again on 3rd and 4th July, 1990. The inspection of 3rd and 4th July, 1990 was carried out in presence of Geologist and Police. 3. As per both these reports in all 44 works were inspected on 23rd and 24th May, 1990 and again on 3rd and 4th July, 1990. The inspection of 3rd and 4th July, 1990 was carried out in presence of Geologist and Police. 3. A perusal of these reports in general reveals that the committee and the Geologist were of the opinion that wherever the work existed either there was no damage or little damage compared to what had been reported. The Committee and Geologist were of the view that no work had been carried out on the spot. As such, in June, 1990 the DIG Enforcement B.S. Thind on receipt of special audit report marked the case to Rama Nand vide letter Ext.PW27/A-1 and referred the case for registration on the basis of which FIR No.25/90 Ext.PA/2 was registered. 4. During investigation of the case, the investigating agency looked into inspection reports Ex.PW-7/A, Ex.PW-7/B, Ex.PW-7/C and Ex.PW-7/C-1 and the report of Geologist Ext.PW-19/A accompanied with video cassette of the site Ext.PW-22/B which contained videography of the site during inspection of the Geologist on 3rd and 4th July, 1990 and after collecting all material evidence against the accused prepared final report under Section 173 Cr.P.C. against the accused persons for offences on account of : 1. That all the work orders had been issued in flagrant disregard of the procedure, rules such as provisions of CPWD-Manual and Punjab PWD Code and D.O.F.P. of HPSEB. 2. That the entries in the MB’s were false, manipulated and fabricated. 3. That even the works executed had not been so executed in accordance with the specifications. 4. That the work order had been issued in utter disregard to rules regulations and orders of board. Contractors who had common partnerships were allotted works on quotations and SQN had not been called for. 5. That these works had been executed without getting the estimates despite the fact that the Dealing Assistant Bhoop Singh had brought these facts to the notice of Executive Engineer. 6. That inspection by committees as per their reports had reverified that in most of cases no work was executed but on the file had been reported to have been executed and completely damaged. Whereas, at other sites where work had been executed, the damage, if any, was to the tune of Rs. 5.14 lacs only and not Rs. 53.00 lacs as reported. 7. Whereas, at other sites where work had been executed, the damage, if any, was to the tune of Rs. 5.14 lacs only and not Rs. 53.00 lacs as reported. 7. That as per investigation the fact of heavy rains during March, April, 1990 and thereafter was found incorrect as there were no heavy rains during the said period. 8. That all the aforesaid acts had been done by the accused persons by entering into criminal conspiracy to cheat and defraud the department to cause wrongful loss to the State of Himachal Pradesh and wrongful gain to themselves. On this basis the challan was filed before the learned trial Court upon which the Court framed charges under Sections 13(2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988, under Sections 120-B, 468, 467, 420, 471 IPC, Section 73 (i) (b), 4, 5 & 6 of H.P. Prevention of Specific Corrupt Practices Act, 1983 to which the accused pleaded not guilty and claimed trial. Though the charges framed against the accused running into several pages and have been reproduced in extenso by the learned trial Court, we deem it proper not to unnecessarily burden this judgment by reproducing the same. However, the sum and substance of the charges has been reproduced by us in para-4 supra. 5. In order to prove the charges and bring home the guilt of the accused persons, the prosecution examined 29 witnesses out of 61 cited witnesses and on closure of the evidence of prosecution, the statements of accused under Section 313 Cr.P.C. were recorded. The accused persons lead defence evidence of two witnesses besides tendering certain documents. 6. The learned trial Court after taking into consideration the entire prosecution story and after evaluating the evidence adduced in support of the same, vide its judgment dated 28.5.2009 was pleased to hold the case to be based on circumstantial evidence and acquit the respondents. The learned trial Court, vide its detailed judgment came to the following conclusions : (i) The sites in question had not been identified ; (ii) There had been heavy rains during that period which destroyed most of the works; (iii) The works so executed had been buried under the debris, yet no steps were taken by the prosecution witnesses to carry out the excavation and determine the value of the work so done. (iv) The videography relied upon by the prosecution was not reliable since it had been tampered with ; and (v) The prosecution case was based on suspicion and not on evidence. 7. The State has come up in appeal against this judgment of acquittal passed by learned Special Judge, Shimla. 8. We have heard learned counsel for the parties. Mr. Shrawan Dogra, learned Advocate General for the State assisted by Mr. Virender Chauhan, vehemently contended that the trial Court had wrongly concluded that the sites in question had not been identified. It had also ignored the report of the committee constituted to look into the irregularities committed by the accused, copies whereof had been exhibited as Ex.PW-7/C-1. The learned trial Court had also ignored the videography conducted by the prosecution. On the other hand, M/s Satyen Vaidya and M.S.Kanwar, learned counsel appearing for the respondents have supported the judgment passed by learned trial Court and have contended that the learned trial Court had given cogent and convincing reasons to acquit the respondents and as such, no interference was called for. 9. With the able assistance of the learned counsel for the parties, we have gone through the records of the case and have considered the respective arguments in detail. 10. From the facts of the case as unfolded during investigation and material so collected during investigation, it is a case which is based upon the circumstantial evidence. It is settled law that the conviction can be based solely on circumstantial evidence, the prosecution case must stand on its own leg and cannot derive any strength from the weakness of the defence put up by the accused. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency. In Majenderan Langeswaran vs. State (NCT of Delhi) and another (2013) 7 SCC 192 , the Hon’ble Supreme Court has held as under :- “16. Now, we have to consider whether the judgment of conviction passed by the trial Court and affirmed by the High Court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. Now, we have to consider whether the judgment of conviction passed by the trial Court and affirmed by the High Court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the court. 17. In Hanumant Govind Nagrundkar v. State of H.P. AIR 1952 SC 343 , this Court observed as under: (AIR pp.345-46, para 10) “10…….It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused/” 18. In Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706, this Court opined as under: (SCC pp. 710-11, para 10) “10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. 710-11, para 10) “10. Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence (See Gambhir v. State of Maharashtra (1982) 2 SCC 351 . 19. In C.Chenga Reddy v. State of A.P. (1996) 10 SCC 193 ,this Court while considering a case of conviction based on the circumstantial evidence, held as under: (See pp.206-07, para 21) “21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.” 20. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: (SCC p.181, para 26) “26. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 , this Court again considered the case of conviction based on circumstantial evidence and held as under: (SCC p.181, para 26) “26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603 .)” 21. In Sattatiya vs. State of Maharashtra, (2008) 3 SCC 210 , this Court held as under: (SCC pp. 214-15, para 10) “10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.” This Court further observed in the aforesaid decision that: (Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 SCC p.217, para 17) “17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court—Bharat v. State of M.P., (2003) 3 SCC 106 . In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime.” 22. In State of Goa vs. Pandurang Mohite, (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath vs. State of Karnataka, (2010) 8 SCC 593 , this Court elaborately dealt with the subject and held as under: (SCC pp. 602-603, paras 23-24) “23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.” 24. In Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37 , while dealing with the case based on circumstantial evidence, this Court observed as under: (SCC pp.41-42, paras 12-13) “12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime. 13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.” 25. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: (SCC pp.299-300, para 28) “28. Last but not least, in the case of Brajendrasingh vs. State of M.P., (2012) 4 SCC 289 , this Court while reiterating the above principles further added that: (SCC pp.299-300, para 28) “28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220 ; Shivu v. High Court of Karnataka, (2007) 4 SCC 713 and Shivaji v. State of Maharashtra, (2008) 15 SCC 269 )” 26. As discussed hereinabove, there is no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence as laid down by this Court. In such a case, all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else”. 11. In order to prove its case the prosecution is relying mainly on the reports of committee of experts coupled with the video cassette containing the alleged videography of certain sites. The reports are :- 1. Ext.PW-7/C-1 dated 25.5.1990 of the sites inspected on 23.5.1990 and 24.5.1990 by B.S. Kapoor PW-26, J.K. Sirkeck, PW-25, V.L. Gupta (since deceased) D.R. Gupta PW-7 and N.C. Sharma. 2. Ex.PW-7/A dated 9.7.1990 of the sites inspected on 3.7.1990, 4.7.1990 by the same committee. 3. Ex.PW-7/B dated 3.8.1990 of the sites inspected on 3.7.1990 and 4.7.1990 by the same committee. 4. Ex.PW-7/C dated 24.4.1991 of the sites inspected on 25.3.1991 to 27.3.1991 by the same committee. 5. Ex.PW-19/A dated 29.12.1990 of the sites inspected on 3.7.1990 and 4.7.1990 by the Geologist in presence of committee and police. 12. 3. Ex.PW-7/B dated 3.8.1990 of the sites inspected on 3.7.1990 and 4.7.1990 by the same committee. 4. Ex.PW-7/C dated 24.4.1991 of the sites inspected on 25.3.1991 to 27.3.1991 by the same committee. 5. Ex.PW-19/A dated 29.12.1990 of the sites inspected on 3.7.1990 and 4.7.1990 by the Geologist in presence of committee and police. 12. In this backdrop, what assumes great importance is as to how the sites in question of which the aforesaid reports have been given, have been identified by the committee. This is so because without identification of the sites it cannot be said with conviction that the sites have infact been properly identified. 13. The case on behalf of the defence is that the sites were not properly identified and therefore the alleged reports placed on record cannot be read in evidence against the accused. 14. The prosecution in order to prove the case and the reports placed on record has examined three experts out of five experts, who as per the case of the prosecution visited the spots and prepared the reports referred above. The experts examined by the prosecution are PW-7 D.R.Gupta, PW-25 J.K.Sirkeck and PW-26 B.S.Kapoor. 15. The experts examined by the prosecution have categorically stated that the procedure for locating a particular site or R.D. is like demarcating a particular field and if one point from which the R.Ds is being located is correct than the other R.Ds or the sites can be correctly identified. It is relevant to refer to the statements of PW-25 J.K.Sirkeck, who has stated that “checking of R.Ds are like that of a demarcation of a particular site. It is correct that if zero RD located correctly all RDs will tally with the record and if zero RD is not correctly fixed at the site no correct RDs can be ascertained/fixed”. 16. Similarly, PW-26 B.S. Kapoor has also corroborated the version of PW-25 on this score by stating that “for the identification of RDs it is like demarcation. In such like situation, if zero RD is correctly located/identified then the entire RDs can be correctly ascertained otherwise not”. Not only this, even the investigating officer PW-29 was aware of the fact that for identification RD from where the measurement are to be taken is to be correctly fixed/ascertained. In such like situation, if zero RD is correctly located/identified then the entire RDs can be correctly ascertained otherwise not”. Not only this, even the investigating officer PW-29 was aware of the fact that for identification RD from where the measurement are to be taken is to be correctly fixed/ascertained. PW-29 in his statement has admitted that “it is correct to suggest if zero RD is not properly fixed or ascertained the entire measurement of RDs will be fruitless and incorrect”. 17. PW-26 B.S. Kapoor has further stated that RDs can be located with the help of the contour plans. To the similar effect is the statement of PW-7 D.R.Gupta who has admitted in his cross-examination that “it is correct that without contour plan/layout plan or master plan it is not possible to physical identified the site of inspection”. He further admitted that the RDs must have been reflected in the location plan of the project. 18. The evidence on record not only suggests but proves that before carrying out the inspection the location plan or the contour plans or the master plan of the project were never consulted by the committee members. PW-25 J.K.Sirkeck has specifically admitted that the committee had not consulted the contour plan or master plan at the time of inspection. It is established on record that no plan had been prepared or else the same would have been proved by the prosecution. 19. The next question then arises as to how and who identified the sites in question. Admittedly, there is no reference in the reports placed on record by the prosecution that any of the accused ever identified any site for which the reports were prepared. 20. If the evidence of PW-7 D.R. Gupta is taken note of, it is found that as per the examination in chief of this witness, he had stated that during inspection of lane of the works a few of the accused persons remained present at the site. From the rest of his examination in chief, there is not even a single word uttered by this witness that the sites inspected by the committee were identified by the accused persons. From the rest of his examination in chief, there is not even a single word uttered by this witness that the sites inspected by the committee were identified by the accused persons. Obviously the person who gets the execution of work carried out is the best person having knowledge of the site where the work has been executed, particularly when PW-7 was also a member of the committee which had submitted four reports i.e. Ex.PW-7/A, Ex.PW-7/B, Ex.PW-7/C and Ex.PW-7/C-1 to the enforcement agency. This casts a serious and grave doubt about the committee having inspected the actual sites of which rain damages has been reported. Our view is further fortified by the fact that this witness has not even named a single accused who was present on the site during the alleged inspection. This witness in his cross-examination has clearly mentioned that without contour plan/layout plan/master plan, it is not possible to physically identify the sites of inspection. He has very clearly stated that the committee had not fixed or ascertained any permanent point/marks while inspecting the spot though had voluntarily stated that the committee did not think it proper. He has further stated in his cross-examination that all the sites so inspected by the committee on the spot were identified through RDs which must have been reflected in the location plan of the project. He admitted that he could not tell from which point zero RD in respect of 44 works was taken. He further failed to recollect as to who identified the particular site at the time of inspection and has also stated that he could not even tell by going through the records also as to which work was got executed by whom. He has further admitted that even the accused contractors were not asked to identify such sites on which they had executed the works. 21. Similarly, perusal of statement of PW-25 J.K.Sirkeck reveals that Executive Engineer and Superintending Engineers who had executed the work were present when sites were identified by V.L.Gupta. Taking into consideration the statement of this witness what emerges is that sites seem to have been identified by V.L.Gupta, who had not been examined as a witness in this case because he had died by that time. Taking into consideration the statement of this witness what emerges is that sites seem to have been identified by V.L.Gupta, who had not been examined as a witness in this case because he had died by that time. In cross-examination, PW-25 J.K.Sirkeck, has stated that checking of RD is just like demarcation of a particular site and if zero RD is correctly located, all RDs will tally with record and if zero RD is not correctly fixed at sites, no correct RDs can be ascertained. It has further come in cross-examination of this witness that due to heavy slips or topographical change there can be change in RDs with passage of time. This witness has made very startling disclosure that the committee had not ascertained the RDs whether these were correctly fixed by V.L.Gupta or not and has honestly admitted that RDs were not fixed in the presence of committee. He has further admitted that the committee had given its reports of the sites only on the basis of what had been shown by V.L.Gupta. He further states that in Ex.PW-7/C dated 24.4.1991 the RDs were not got fixed at the time of clarification and the same were based on old RDs. 22. B.S.Kapoor PW-26 on the other hand states that the spots were identified by the concerned Junior Engineers, who were posted in the respective divisions at that time. In his cross-examination, he has stated that he did not mention in his reports that sites were identified by accused persons who were posted and had identified the sites on spot. He has further admitted that RDs were required to be fixed for the construction of road and are to be marked along with record. He further goes on to state that for identification of RDs, it is line demarcation and in such line situation if zero RD is correctly located/identified then the entire R.Ds can be correctly ascertained otherwise not. This witness has stated that RDs can be located with the help of contour plan i.e. when any work is executed the same is plotted on the contour plan. 23. This witness has stated that RDs can be located with the help of contour plan i.e. when any work is executed the same is plotted on the contour plan. 23. Thus from the testimony of all the aforesaid three witnesses what emerges is that with respect to identification of site the fixing to zero RD at proper point is of utmost importance, whereafter alone the identification of RDs is to be carried out in manner and procedure which is almost similar to that of a demarcation. This being so, any lapse in fixing zero RD correctly can change the identifications of locations substantially to the extent of wrong fixing of zero RD. What further emerges from complete reading of the statements of these witnesses is that the RDs can be identified and located with the help of contour plan. Thus, the contour plan or the location plan/ master plan is definitely a document with the help of which alone the RDs can be properly located after plotting the same RDs on such maps the exact site/locations can be exactly located, plotted. 24. However, from the evidence of these committee members, it is clearly found that the aforesaid exercise was not at all undertaken by the committee as such this destroys the very credibility of the prosecution in establishing and proving on record the correct identification of site. The evidence of committee members of having appointed V.L.Gupta for fixing the RD’s is of no avail as there is no evidence on record suggesting how such RDs have been fixed, what was the basis on which he i.e. V.L.Gupta fixed these RDs. Whether in doing so, he had plotted the same on same map above. In the absence of such evidence, it can be safely presumed that he had not undertaken any such exercise. Moreover, there is nothing on record which may suggest that even when if such exercise was undertaken by V.L.Gupta, whether he found the fixed RDs to be co-relatable with the earlier fixed RDs, or whether there was any change, if so, how such change took place was definitely required to explain. 25. Since there exists no such evidence, it can safely be said that the sites were not properly identified. 25. Since there exists no such evidence, it can safely be said that the sites were not properly identified. PW-25 J.K.Sirkeck has very clearly stated that RDs were not marked in presence of committee by V.L.Gupta and PW-26 B.S.Kapoor had admitted that some of the spots were inspected by committee on the basis of RDs written by V.L.Gupta. Since none of the reports of committee provides help to trace as to which were the site which were identified by the committee it further strengths the plea of the respondents that the sites were not properly identified. Simply by stating that accused were present and had identified the sites will not discharge the burden of the prosecution to prove its case with respect to the correct identification of locations. Moreover, there is also no mention as to when V.L.Gupta had fixed these RDs, because the first inspection took place on 23/24.5.1990 and V.L.Gupta was one of the member of committee alongwith PW-7, PW-25 and PW-26, who have clearly stated that RDs were not fixed in his presence. 26. Further, if statement of PW-8 Harbans Lal, who prepared site map Ex.PW-8/A is seen, it has very clearly been stated by him that RDs are depicted on master plan of project and they had not identified the RDs independently at the time when they prepared Ex.PW-8/A. This witness has stated that site plan was prepared as directed by V.L.Gupta. Thus, the identification of RDs and subsequently the sites seem to have been done at the instance of V.L.Gupta, but as discussed earlier in absence of evidence to the effect how V.L.Gupta did the same, the dispute as to proper identification of sites remains. 27. Out of the five reports in this case, the report Ex.PW-19/A is that of the Geologist PW-19 whose services were requisitioned during the course of investigation by the police and who alongwith committee and D.I.G. Enforcement inspected the sites on 3.4.1990 and 4.7.1990. PW-19 while submitting his report Ex.PW-19/A is stated to have inspected the site alongwith the committee. PW-19 in his cross-examination has stated that he had been deputed to ascertain whether work was required to be carried out or not from geological point of view and has denied that Geologist had been deputed to prepare geological report of the area. PW-19 while submitting his report Ex.PW-19/A is stated to have inspected the site alongwith the committee. PW-19 in his cross-examination has stated that he had been deputed to ascertain whether work was required to be carried out or not from geological point of view and has denied that Geologist had been deputed to prepare geological report of the area. This witness has admitted that as per the letter of D.I.G. (Enforcement), the Geologist was asked to assess the rain damage caused at HPSEB, Jhakri. However, a perusal of report Ex.PW-19/A consisting of 19 sheets does not reveal whether as per letter of D.I.G. (Enforcement), the Geologist had infact assessed the rain damages as desired by the D.I.G. Rather on the other hand the Geologist has commented that entries in MB’s etc. are false and fictitious and that there was no requirement for carrying out work at site. His cross-examination further reveals that according to him the R.Ds were not fixed independently to locate the sites. 28. When the statement of this witness is read with his report Ex.PW-19/A it does not disclose as to which particular site was identified and by whom. This witness has admitted that by seeing the M.B. the site cannot be located. He has also admitted that site/location can be located in master plan. He in his further deposition has stated that though he had mentioned about the vegetation growth yet he had not mentioned about the age of vegetation. He stated that the same may be in shape of Bhang. He has also stated that though members of the committee who had earlier inspected the sites were present yet they did not disclose to the Geologist about their having inspected the sites earlier. There is no cogent, convincing or plausible explanation forthcoming from this witness as to why after inspecting the sites on 3.7.1990 and 4.7.1990, the report Ex.PW-19/A was submitted after a delay of about five months i.e. on 29.12.1990. 29. Thus, from the above detailed discussion, it can safely be inferred that all the five reports cited above contain reference of works in which the technical committee so constituted by the HPSEB and the Geologist have given their reports, but their reports were not based on any proper identification of the sites and therefore, cannot be relied upon to convict the accused/ respondents. 30. 30. Now comes the question whether in fact during the relevant period damage did occur due to rain at the sites or not and if no such damages occurred then whether the allegation that the record so prepared of the execution of these works is false and fictitious. The relevant period for consideration of damages as per the record is March/April, 1990 and thereafter. As per the allegation of the prosecution as borne out from the record is that there was no such heavy rain during the aforesaid period which could have caused damages to the works in question. 31. For this purpose, in case the entire evidence led by the prosecution is scrutinized then except in examination in chief of PW-29 Rama Nand, wherein he had stated that he had during investigation collected the report about rain during winter season of 1990 from PWD of the N.H. Department and as per the said reports the rains were below average during winter months of 1990 i.e. January to March, there is no other evidence led by the prosecution on this point. 32. The respondents on the other hand have taken a specific defence that works in question were damaged due to rains. In fact it is the witnesses examined by the prosecution themselves who have admitted the factum of heavy rainfall and consequent damage to the works. In this regards PW-7 D.R.Gupta, one of the members of the committee had admitted that in the area inspected by the committee flash floods are very common and that the force velocity of the water in flash floods can neither be predicted nor measured after flash floods. This witness has further admitted that the committee did not consult the record of metrological department during or before the inspection of site. He further stated that Engineer J.K. Sirkeck and V.L.Gupta, SDO had substantiated the fact that intensity of rain was very high and heavy land slides did occur in the area. He has also admitted that any damage caused to works along side Gharolla Nullah would result in debris falling in Nullah and lastly into river Satluj. The witness agreed to the suggestion that damages caused in 1990 were restored. 33. He has also admitted that any damage caused to works along side Gharolla Nullah would result in debris falling in Nullah and lastly into river Satluj. The witness agreed to the suggestion that damages caused in 1990 were restored. 33. PW-25 J.K. Sirkeck, who was also member of the committee has in his cross-examination stated that on one occasion sites could not be inspected by him and V.L.Gupta because of slides that had occurred due to heavy rains they had to return because of injury sustained by V.L.Gupta due to land slide. He has admitted that during the year 1990 there were heavy rains in the project area. He further admitted that in case of damage along Gharolla Nullah, the debris would fall in river Satluj. He also admitted that the committee had seen damages at specific RDs which had occurred due to natural calamities and still further admitted such damages on NH occurred due to natural calamities. 34. Similarly, PW-26 B.S.Kapoor, in his cross-examination has admitted damages during the relevant period to project area on account of rain. This witness too has substantiated the fact that he was told by PW-25 J.K.Sirkeck that the sites could not be inspected earlier as V.L.Gupta sustained injury. Further this witness has also admitted that any damage caused along with Nullah, the debris will go into the Nullah and lastly in river Satluj. He agreed to the defence suggestion that due to excessive rain, velocity of water will also increase and debris will flow. 35. PW-8 Harbans Lal too has admitted that entire Jhakri area had been lashed by heavy rains during March-April, 1990 resulting in damages and has further stated that in some places, the damage was to such an extent that entire work had either been washed or buried completely. This witness too has agreed to the suggestion that during rains flash floods occur in the nullah and any existing work alongside nullah gets washed and ends up in river Satluj leaving behind no evidence of works. The witness has further stated that due to rain, huge chunks of debris used to slide and as such soil movement in Jhakri area was of great magnitude. In fact, it has come in the evidence of this witness that because of this large crack had appeared in the project area. 36. The witness has further stated that due to rain, huge chunks of debris used to slide and as such soil movement in Jhakri area was of great magnitude. In fact, it has come in the evidence of this witness that because of this large crack had appeared in the project area. 36. PW-9 Naveen Malhotra, who was Junior Engineer in NJCSD-V, Jhakri, in cross-examination has stated that some works under V.L.Gupta had been damaged during heavy rains between March-April, 1990 and has proved in evidence the rain damage reports of the works under his sub-division which are Ext.DAA and DBB respectively. As per this witness, these damages had occurred during heavy rains of July, 1990 to January, 1992. He further agreed to the suggestion that due to rains damages used to be caused in the area. 37. Further PW-13 Sita Ram, who was LDC in NJCD-II, Jhakri has stated that as and when there used to be heavy rains in the area of project, heavy damages to the works occurred and even now due to heavy rains, landslides occur in the area resulting in damages and flash floods in nullah. This witness too admitted that in March-April, 1990 there were damages due to rains. 38. PW-14 Satish Chand, who was a daily wager in NJCD-II has also in cross-examination admitted that due to rains damages had occurred in the project area. Similarly, PW-15 Surjit Singh in his examination in chief has stated that in sub division No.VI some damages have also occurred of which damage reports had been sent to the division. In his cross-examination, this witness has admitted that due to rains of March-April, 1990, the works had suffered damages which had been reported to higher authorities. 39. With regard to damage PW-16 D.K. Sharma, who was Assistant Engineer in Sub Division No.6, Division No.II, Jhakri has stated that during 3/90 to 4/90 many works undertaken by his sub division had suffered damages of which reports were made to superiors and damage reports prepared were exhibited as Ext.PA/3/49 and Ex.PA/3/47. In his cross-examination, this witness has admitted that during 3/90 and 4/90 project suffered heavy damages during rains and the extent of damages of three works of his sub division alone was Rs.3.00 lacs. In his cross-examination, this witness has admitted that during 3/90 and 4/90 project suffered heavy damages during rains and the extent of damages of three works of his sub division alone was Rs.3.00 lacs. This witness has also corroborated the fact regarding the works having being washed in flash floods, complete burial of works and that the extent of damages was quite heavy as the project area is in sinking and sliding zone. 40. Similar statement has come in the evidence of PW-17 Satish Kumar Gupta, who was Junior Engineer in Sub-Division No.VII, Jhakri. Even, PW-18 Bhoop Singh who was Dealing Assistant in his cross-examination has admitted that due to rains in 3/90 and 4/90 the sites of project pertaining to division No.2 and other division had been damaged of which reports had been sent to higher authorities. To similar effect is the testimony of PW-20. Even PW-29, Investigating Officer, Rama Nand, in his cross-examination has specifically stated that preventive measures have to be undertaken against natural calamities as this area was prone to cloud burst and has to some extent admitted the occurrence of damages due to slips. 41. The statement of J.K. Sirkeck corroborated by the other committee members is of utmost importance when he states that he alongwith V.L.Gupta while going for initial inspection of damaged sites could not do so for the reasons the sites were in accessible due to slides and V.L.Gupta had suffered injury as a result of slide. 42. On the other hand the respondents have in their defence led evidence to the effect that from the period w.e.f. December 1989 to March, 1990 extensive damage was caused to the work of NH division of HPPWD, Rampur Bushahr between 200 to 335 KMs. This included damage to the retaining wall, breast wall and wire crates etc. which was to the tune of Rs.91,81,800/- for which a sum of Rs.62,14,700/- was sanctioned for its restoration. This is so stated by the defence witness examined as DW-1. Copy of report of said damage is Ex.DW-1/A. This report contains reference of continuous rain storms etc. with specific reference to the fact that area around Rampur and Kinnaur falling along river Satluj has never in past experienced such heavy continuous rain. It further states that in March rains had aggravated the situation which resulted in heavy land slides, washing away of road, benches, sinking of road etc. with specific reference to the fact that area around Rampur and Kinnaur falling along river Satluj has never in past experienced such heavy continuous rain. It further states that in March rains had aggravated the situation which resulted in heavy land slides, washing away of road, benches, sinking of road etc. Importantly, it has come in the statement of DW-1 that Jhakri area falls between 200 to 335 Kms i.e. within the area which as per the report of HPPWD also was lashed by unprecedented rains. 43. Surprisingly, though the prosecution has taken a plea that damages as reported by accused persons could not have occurred as the rains during the period were below average but no such record to supplement and prove this allegation has been produced. Whereas, on the other hand, the accused have successfully demonstrated and proved the fact of unprecedented rains, storms etc. and consequent wide spread damages. Thus, the prosecution has failed to establish even this charge. 44. Interestingly, the evidence of committee members and Investigating Officer clearly reveals that during the course of investigation or otherwise no excavation had been carried out in order to find the extent of damage at the site. It has specifically been stated by PW-7, PW-19, PW-25 and PW-26 that no excavation was carried out of the sites. This proves that when no excavation work was undertaken by the committee, then the Geologist or the Investigating Officer without excavation could not have found any work which may have been completely buried. When evidence to this effect that works had been completely washed and ended up in river Satluj and in other cases there had been a complete burial of the works, yet no excavation has been carried out to find out traces of same, it can safely be concluded that the prosecution has failed to lead cogent, convincing and conclusive evidence on these lines and thus has failed to prove its case. 45. Another allegation on which the prosecution relied to bring home the guilt of accused persons is that all the works of which damage was reported or which was undertaken by the accused had been got executed in gross violation and utter disregard to the prevalent rules and procedure quoted in manuals like CPWD, Punjab PWD Code. 45. Another allegation on which the prosecution relied to bring home the guilt of accused persons is that all the works of which damage was reported or which was undertaken by the accused had been got executed in gross violation and utter disregard to the prevalent rules and procedure quoted in manuals like CPWD, Punjab PWD Code. The allegations of the prosecution that the accused had willfully ignored and bypassed such rules and regulations was with a view to cause wrongful loss to the State of Himachal Pradesh and consequent wrongful gain upon themselves as a result of criminal conspiracy between them. The prosecution has sought to prove this allegation through PW-18 Bhoop Singh, Dealing Assistant and PW-20 Kapoor Singh. 46. PW-18 Bhoop Singh has stated about the procedure and further stated that these procedures were not being followed in the division and had infact brought this fact to the notice of accused J.S. Parihar through note sheets Ex.PW-18/B, Ex.PW-18/C, Ex.PW-18/D. Similarly, Kapoor Singh, PW-20 has also stated in his examination that before issuing work orders, no estimates had been received in the office nor sanctioned and where estimates had been entered by the Junior Engineers in the estimate register, the same had not signed by the accused J.S.Parihar, Executive Engineer. Apart from this, there is no other evidence to substantiate this allegation of the prosecution. 47. It has come in the evidence of Bhup Singh that there was difference between ‘work order’ and ‘tender’. The ‘work orders’ were issued for short duration for completion of urgent works. In fact, all the works involved in the case have been got executed through work orders and were mainly for undertaking preventive measures as the area of project was in sinking and sliding zone. 48. The members of technical committee on the other hand have nowhere in their reports pointed out that all of these works had been executed in gross violation and disregard to the rules and regulations or manuals. Rather PW-18 Bhoop Singh has admitted that the project was technically, financially and administratively cleared by State and Central Government. He has stated that since main heads stood already approved by the competent authority as such, works of all the components under the main head had also the approval of competent authorities. Rather PW-18 Bhoop Singh has admitted that the project was technically, financially and administratively cleared by State and Central Government. He has stated that since main heads stood already approved by the competent authority as such, works of all the components under the main head had also the approval of competent authorities. This witness has further stated that he had not raised any objection in any of the bills and had thoroughly checked the same. 49. Not only this, even the Accounts Officer of NJPC had not raised any objection in passing of the bills. This witness has further stated that since work of project was of urgent nature, sanction can follow the execution of work. This witness has proved two notifications Ext. DA and Ex.DB vide which certain sanctions of CPWD manual were made applicable to the HPSEB only in May, 1997 and November, 2000. The witness has admitted that Executive Engineer can authorise Assistant Executive Engineer to invite NIQs and has further qualified that the procedure detailed by him and being followed by the division of accused was being followed in all the division operating in the project. Moreover, even from the evidence of this witness, it is evidently clear that at the relevant time the financial powers of Executive Engineers in project had been enhanced to Rs. 1.00 lac. 50. The deposition of PW-18 further finds corroboration from the statements of PW-20 Kapoor Singh, PW-15 Surjit Singh and PW-16 D.K.Sharma. This being so, in the absence of any observations of the committee with regard to non-following of rules and procedure, it cannot be held that the works in question had been got executed in gross violation of rules, regulations procedure. This is particularly so when the Investigating Officer of the case PW-29 Rama Nand in his cross-examination has also admitted these very facts and has even admitted that V.P. Gupta, Superintending Engineer too had sought clarification from the HPSEB regarding applicability of the manual codes. When this was the admitted position, then it was all the more duty of the prosecution to have proved this allegation beyond all reasonable doubt to bring home the guilt of accused. When this was the admitted position, then it was all the more duty of the prosecution to have proved this allegation beyond all reasonable doubt to bring home the guilt of accused. It is amply clear that the prosecution failed to discharge its burden of proving these allegations, while the accused on the other hand have been successful in demonstrating that there was no truth in the allegations of the prosecution on this account. 51. The other allegation of the prosecution is with regard to double allocation of work which is contained in 16 muster-rolls contained in file No. PA/49/22, PA/29/31 and which have been proved in evidence by PW-13 Sita Ram. However, in his cross-examination, the witness has very clearly stated that the muster-rolls which were allocated to different works and allocation of works to different site was well within the competency of the Engineers and have been done as per rules by the Engineers Incharge of the work. As such, when no other evidence to controvert this deposition of PW-13 has been brought on record which could possibly falsify the depositions of PW-13 duly corroborated by PW-18 Bhoop Singh with regard to allocation of works, there is no force in the allegation of prosecution with respect to double allocation of work also. 52. The prosecution besides other evidence have also relied on videography alleged to have been made during inspection of 3/90 and 4th July, 1990 in presence of committee and Geologist of which video cassette is Ex.PW-22/B duly filmed by PW-22 Madhu Parsad. In the cross-examination of the witness, it has come on record that possibility of something being added or deleted in videography could not be ruled out. His further cross-examination reveals that the time and date in video camera is adjustable which can be adjusted and changed and even editing is possible thereafter. This witness has clearly stated that he had not examined the video cassette to ascertain about any addition or change and states that video tape Ex.PW-22/A was sealed in his presence in the year, 1990. The sealed parcel containing video cassette was produced by the prosecution and exhibited as Ex.PW-22/B. However, in his cross-examination, PW-22 had admitted that the inner cover of video cassette Ex.PW-22/B bore postal stamps of 1996. When further confronted, the witness simply stated that he did not remember whether cassette Ex.PW-22/B was put in Ex.PW-22/A or in Ex.PW-22/A/1. The sealed parcel containing video cassette was produced by the prosecution and exhibited as Ex.PW-22/B. However, in his cross-examination, PW-22 had admitted that the inner cover of video cassette Ex.PW-22/B bore postal stamps of 1996. When further confronted, the witness simply stated that he did not remember whether cassette Ex.PW-22/B was put in Ex.PW-22/A or in Ex.PW-22/A/1. Thus, the conclusion arrived at by the learned trial Court that the possibility of the video cassette being tampered with cannot be faulted and is accordingly affirmed. 53. Though the prosecution has examined as many as 29 witnesses in order to bring home the charge against the respondents, but they have failed to do so. It is the quality and not the quantity which determines the adequacy of evidence as has been observed by the Hon’ble Supreme Court in Gulam Sarbar vs. State of Bihar (now Jharkhand) 2014 Cri. L.J. 34 as under : “14. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Evidence Act. Even in Probate cases, where the law requires the examination of at least one attesting witness, it has been held that production of more witnesses does not carry any weight. Thus, conviction can even be based on the testimony of a sole eye witness, if the same inspires confidence. (Vide: Valivelu Thevar & Anr. V. State of Madras, AIR 1957 SC 614 ; Kunju alias Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381 ; Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638 ; Mahesh & Anr. V. State of Madhya Pradesh (2011) 9 SCC 626 : ( AIR 2012 SC 2172 ); Prithipal Singh & Ors. V. State of Madras, AIR 1957 SC 614 ; Kunju alias Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381 ; Bipin Kumar Mondal v. State of West Bengal, AIR 2010 SC 3638 ; Mahesh & Anr. V. State of Madhya Pradesh (2011) 9 SCC 626 : ( AIR 2012 SC 2172 ); Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10 : (2012 AIR SCW 594); and Kishan Chand v. State of Haryana, JT 2013 (1) SC 222 : ( AIR 2013 SC 357 )”. 54. Sh. Shrawan Dogra, learned Advocate General has lastly contended that the accused persons from the very beginning had the guilt intention to cheat the State of Himachal Pradesh, therefore, they had got the different works executed from the firms of the respondents namely Rakesh Gupta, Ranjit Kumar, Pankaj Manchanda, Parkash Chand, Partap Singh, Devi Singh and Ved Parkash, who are the same persons and partners inter se of the different firms. He has argued that Rakesh Gupta was the partner of firm M/s Himalayan Transporters and Contractors, Jhakri, M/s Kinnar Kailash Contractors, Shimla, M/s Vijay Kumar Contractors and M/s Shrikhand Engineers, Jhakri. Similarly, Vijay Kumar was a partner of M/s Himalayan Transporters and Contractors, M/s Vijay Kumar Contractors. In case of Partap Singh, he was the partner of M/s Partap Singh Contractor and M/s Mount View Contractors etc. What is sought to be established by the learned Advocate General is the fact that the works had been allotted to the firms by different names but whose partners infact were the same. 55. The making of different firms by the respondents No.7 to 13, appears to be a suspicious circumstance, but then unless there is cogent and definite evidence pointing towards the guilt of the respondents, it cannot be said that respondents No. 7 to 13 had connived with the respondents No. 1 to 6 and had guilt intention from very beginning and they committed these offences with connivance with each others. It is settled law that the suspicion, however grave it may be, cannot take place of proof. In Raj Kumar Singh alias Raju alias Batya vs. State of Rajasthan, (2013) 5 SCC 722 , the Supreme Court held as under : “21. It is settled law that the suspicion, however grave it may be, cannot take place of proof. In Raj Kumar Singh alias Raju alias Batya vs. State of Rajasthan, (2013) 5 SCC 722 , the Supreme Court held as under : “21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ‘may be’ and ‘must be’ is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and ‘must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be’ true and ‘must be’ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343 ; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622 ; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 ; Ashish Batham v. State of M.P., AIR 2002 SC 3206 ; Narendra Singh & Anr. v. State of Mahrashtra, AIR 1973 SC 2622 ; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 ; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702 ; Ashish Batham v. State of M.P., AIR 2002 SC 3206 ; Narendra Singh & Anr. v. State of M.P., AIR 2004 SC 3249 ; State v. Mahender Singh Dahiya, AIR 2011 SC 1017 ; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979 ) 22. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808 , this Court observed as under: (SCC p.820, para 25) “25.Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence." 23. In Hodge (1838) 2 Lewin 227: 168 ER 1136, the court held that before a person is convicted entirely on circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person. 24. In Sharad Birdhichand Sarda (1984) 4 SCC 116 , this Court held as under: (SCC p.185, para 153) “153.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused….. They should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." A similar view has been reiterated in Krishnan v. State (2008) 15 SCC 430 , Pawan v. State of Uttaranchal, etc. etc. (2009) 15 SCC 259 ; and State of Maharashtra v. Mangilal, (2009) 15 SCC 418 . 25. etc. (2009) 15 SCC 259 ; and State of Maharashtra v. Mangilal, (2009) 15 SCC 418 . 25. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 , this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt. 26. Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under: (SCC pp. 127-28) “Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.” 27. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. & J.W. Johnson & Co. 1872, it has been explained as under : “In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions. The term ‘presumptive’ is frequently used as synonymous with circumstantial evidence; but it is not so used with strict accuracy, The word ‘ presumption,’ ex vi termini, imports an inference from facts; and the adjunct "presumptive," as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species. The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum.” 28. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.” 56. From what has been discussed hereinabove, we are of the view that the prosecution has miserably failed to prove chain of circumstances relied upon by it in the case required to convict the accused. The chain of circumstances is absolutely incomplete. From what has been discussed hereinabove, we are of the view that the prosecution has miserably failed to prove chain of circumstances relied upon by it in the case required to convict the accused. The chain of circumstances is absolutely incomplete. The statements of PW-29, PW-7, PW-25 and PW-26, the Investigating Officer of the case and the so called experts when read as a whole makes it evident of the fact that none of the allegation alleged against the accused have been proved by the prosecution. Lastly it may be observed that the prosecution had cited as many as 61 witnesses in the final report, yet it chose to examine only 29 witnesses. The reasons for giving up are neither cogent nor convincing constraining us to draw an adverse inference. 57. In view of above stated position, we find this to be a fit case calling for no interference with the judgment of acquittal dated 28.5.2009 passed by learned Special Judge (Forest), Shimla in Corruption Case No. 50-S/7 of 2003/96, which is accordingly affirmed and hence the appeal is dismissed. Bail bonds are discharged.