JUDGMENT J.P.DAS. - This common order shall dispose of the aforesaid three revision applications preferred by three petitioners who stood jointly convicted in V.G.R. Case No.18 of 1999 by the learned C.J.M., Balasore. 2. The petitioner namely, Chitta Ranjan Behera and Anup Kumar Das were convicted under Sections 409/420/120-B/471, I.P.C. and so far as the petitioner Lingaraj Sahu is concerned, he was convicted under Sections 420/120-B and 471 of the I.P.C. The petitioners Chittaranjan Behera and Anup Kumar Das were sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-, in default, to undergo R.I. of six months each for the offence under Section 409 of the I.P.C., R.I. for three years and to pay a fine of Rs.20,000/-, in default, to further R.I. for three months each for the offence under Section 420 of the I.P.C., R.I. for three months each under Section 471 of the I.P.C. and R.I. for three years and to pay a fine of Rs.3000/-, in default, further R.I. for six months each for the offence under Section 120-B, I.P.C. So far as the petitioner Lingaraj Sahu is concerned, he was awarded with similar sentence like other two petitioners for the offences under Sections 420/471/120-B of the I.P.C. 3. Three separate criminal appeals were preferred by the three petitioners before the learned Second Additional Sessions Judge, Balasore vide Criminal Appeal No.36/50 of 2014-2009 and Criminal Appeal No.40/51 of 2014-2009 and Criminal Appeal No.34/52 of 2015/09. In the said appeals by a common judgment, the learned appellate court set-aside the conviction of the appellants under Section 420 of the I.P.C. and upheld the conviction and sentences of all the three appellants for the offences under Section 409/120-B/471 of the I.P.C. The said judgment of conviction and sentence has been assailed in the present revision applications filed separately by the three petitioners. 4. The Inspector of Police, Vigilance, Baripada getting some information regarding illegality and criminal misappropriation of government funds, made an enquiry. The petitioners namely, Chitta Ranjan Behera and Anup Kumar Das were working as Block Development Officer (B.D.O.) and Junior Engineer (J.E.) respectively under Bahalada Block in Mayurbhanj district during the period of 1995-96 and the other petitioner Lingaraj Sahu was a local contractor. The petitioners namely, Chitta Ranjan Behera and Anup Kumar Das were working as Block Development Officer (B.D.O.) and Junior Engineer (J.E.) respectively under Bahalada Block in Mayurbhanj district during the period of 1995-96 and the other petitioner Lingaraj Sahu was a local contractor. One Satrughana Patra and Kailash Patra of village Brahmanbase were selected as beneficiaries under the Indira Awas Yojana (‘I.A.Y.’ in short) for the year 1995-96 in Bahalada Block. Necessary papers were prepared and estimate of Rs.15,800/- was prepared for construction of the houses for each of the beneficiaries. The required technical sanction was provided by the Block Development Officer on 15.12.1995 and 08.01.1996 who also gave administrative approval to the projects. It was found out that although as per the provisions under the scheme of Indira Awas Yojana, the amount so sanctioned, was to be paid directly to the beneficiaries, still the work order was given in favour of the petitioner Lingaraj Sahu, a local contractor. It was further found out that all the three petitioners hatched a conspiracy and without making any construction of the houses, misappropriated the entire amount of Rs.31,600/- meant for the two beneficiaries by preparing forged documents including M.B. Books and other papers. The Inspector, Vigilance, on completion of such enquiry, lodged an F.I.R. before the Superintendent of Police, Vigilance, Balasore narrating the alleged acts against the present petitioners with a request to register a case on 05.08.1999. Accordingly the Balasore Vigilance P.S.Case No.18 dated 05.08.1999 was registered against the three petitioners under Sections 409/420/34, I.P.C. and the informant-Inspector was entrusted with the investigation. In course of investigation, the witnesses were examined, documents were seized, some spot verifications were made and after completion of investigation, charge-sheet was submitted under Sections 409/420/471/120-B, I.P.C. against all the three accused persons. Charges were framed accordingly. 5. The accused persons pleaded not guilty and faced the trial. 6. In course of trial, thirteen witnesses were examined on behalf of the prosecution. Besides, exhibiting certain documents as against, none preferred by the accused persons in defence. 7. On analysis of the evidence placed before the learned trial court, all the three accused persons were found guilty and were sentenced accordingly as aforesaid. 6. In course of trial, thirteen witnesses were examined on behalf of the prosecution. Besides, exhibiting certain documents as against, none preferred by the accused persons in defence. 7. On analysis of the evidence placed before the learned trial court, all the three accused persons were found guilty and were sentenced accordingly as aforesaid. In course of appeal, one document vide Ext.-A was brought into evidence on behalf of the accused persons and the learned appellate court acquitting the accused persons of the offence under Section 420 of the I.P.C. upheld their conviction and sentence for the other offences as stated hereinbefore. 8. The submissions, made on behalf of the three petitioners separately by their respective learned counsel, were similar on the question of facts and position of law. It has been submitted that both the learned courts below reached the conclusion of guilt against the accused persons simply relying on the oral testimony of the witnesses, mostly, the family members of the two beneficiaries without considering the veracity and truthfulness of the said witnesses. It was further submitted that simply believing their statements that no houses were constructed nor any funds were provided to the beneficiaries, both the learned courts below went on to hold that the accused persons misappropriated the amount and manipulated the documents by hatching a conspiracy. It was further submitted by learned counsel for the petitioners that it remained admitted on record that the family members of the two beneficiaries, out of whom, one was dead prior to the registration of the case and the other one died after submission of charge-sheet and before deposing in the court, were living in two constructed houses on the government land. The learned courts below have reached the conclusion that the said two houses were not constructed with the funds provided under the Indira Awas Yojana but were constructed by the beneficiaries out of their own funds, simply relying on the statements of the independent witnesses. The learned courts below have reached the conclusion that the said two houses were not constructed with the funds provided under the Indira Awas Yojana but were constructed by the beneficiaries out of their own funds, simply relying on the statements of the independent witnesses. Thus, it was submitted that when the main question remained to be answered as to the construction of the houses and the funds used therefor, both the learned courts below without discussing the specific evidence in that regard in proper manner erroneously accepted the deposition of the witnesses that the houses were constructed by the concerned beneficiaries and went on to analyse the ingredients of other offences and held the accused persons guilty thereof. Placing the detail evidence of all the witnesses examined on behalf of the prosecution, it was submitted that the glaring discrepancies and unbelievable statements of those witnesses were not at all considered by the court below apart from the fact that material documents like the concerned case files of the beneficiaries were not produced before the court though seized, thereby making the prosecution case unsustainable in the eye of law. 9. It was further submitted that the prosecution harped upon the allegation that although as per the guidelines of the housing scheme, the amount should have been paid directly to the beneficiaries, still in the instant case, all the three accused persons hatched a conspiracy and the contractor Lingaraj Sahu was entrusted with the work thereby violating the guidelines of the Government. It was submitted in this regard that it was the case of the defence that in a meeting convened by the concerned P.O., D.R.D.A. of the district, it was decided that the works can be entrusted to a contractor on the request made by the beneficiaries in case of their incapability, and the petitioners being the employees of the department followed the said decision on the request made by the two beneficiaries. It was also pointed out that the Enquiring as well as Investigating Officer has categorically admitted in his evidence before the court that both the beneficiaries had separately filed applications before then Block Development Officer to engage the contractor Lingaraj Sahu to construct their houses. The decision of the Committee headed by the P.O.,D.R.D.A. was brought on record before the learned appellate court as Ext. The decision of the Committee headed by the P.O.,D.R.D.A. was brought on record before the learned appellate court as Ext. A. Hence, it was submitted that ignoring such facts and admissions on record, both the learned courts below held that the contractor was entrusted with work illegally thereby imputing a motive of criminal conspiracy against the accused persons. 10. Per contra, the findings and the conclusion reached by the courts below were supported by the learned counsel appearing for the State, Vigilance with the submission that all the allegations remained proved on record and it was found out as spot verification with the help of the Revenue Inspector and the Junior Engineer that the houses were not constructed according to the specification and the measurement books were not properly prepared. It was further submitted that since all the independent witnesses have stated that no fund was provided to the beneficiaries and they have constructed their respective houses out of their own funds, the findings of both the learned courts below cannot be faulted with. 11. To put the entire prosecution case in a sentence, two beneficiaries were selected to get the houses constructed under Indira Awas Yojana with sanction of a fund of Rs.15,800/- each, but the houses were not constructed and the work was entrusted to a private contractor violating the guidelines of the scheme and all the three accused persons hatching a conspiracy misappropriated the funds by preparing forged documents. The defence case similarly was that the houses were duly constructed by engaging a contractor on the request made by the beneficiaries as per the decision taken in the district level committee and hence, there was no offence committed by the accused persons. Juxtaposing the case of the prosecution and the defence plea, the main question that remained to be answered was whether the houses were constructed with the funds provided under the scheme and paid to the contractor for the purpose or the houses, where the family members of both the beneficiaries were found staying, were constructed by the two beneficiaries out of their own funds. But, as I find from the judgments of both the trial court as well as appellate court, this aspect has not been paid with due consideration of importance as required and both the courts below holding that the houses were not constructed with the funds provided by the Government, have gone on discussing the ingredients of other offences in order to find out the liability of the accused persons for the other offences. At the first and foremost it was to be found out as to how far the prosecution was successful in establishing beyond reasonable doubts that the houses admittedly existing on government lands, were not constructed by the contractor with the funds provided by the Government but by the respective beneficiaries out of their own funds. 12. As stated earlier, one of the beneficiaries was dead prior to the registration of the case and other beneficiary though cited as charge-sheeted witness, could not be examined since he died before deposing in the Court. The family members of both the beneficiaries were examined. P.Ws. 1 and 5 were two sons of the beneficiary Kailash Patra and the P.W. 8 was the wife of Kailash Patra and P.W. 9 was the wife of P.W. Similarly P.Ws. 6 and 7 were the daughter and the wife respectively of the other beneficiary Satrughana Patra. P.W. 2 was examined as a labourer engaged by Kailash Patra in construction of the house. P.W. 11 was the Sarpanch of the concerned area who stated that the beneficiaries were not paid with their amounts as it was found out on their enquiry at the concerned Block but the funds were disbursed in favour of the contractor Lingaraj Sahu. P.Ws. 4 and 10 were R.I., Junior Engineer respectively who made the spot verification and the measurement in course of investigation. P.W. 12 was another beneficiary of the said village and P.W. 13 was the Investigating Officer. P.W. 1 the son of the beneficiary Kailash Patra stated that his father has made an application under the Scheme in the year 1995 and it was not considered. P.W. 12 was another beneficiary of the said village and P.W. 13 was the Investigating Officer. P.W. 1 the son of the beneficiary Kailash Patra stated that his father has made an application under the Scheme in the year 1995 and it was not considered. He added that in the year 1999 they had constructed a mud house and after the death of his father, he along with the Sarpanch of their village had been to the Block Office and found that although the money was sanctioned in their favour and was withdrawn still it was not paid to them. The P.W. 5 another son of Kailash Patra examined in the year 2004 stated that his father died four years back and he had not availed any benefit under I.A.Y. It is the admitted case that Kailash Patra died in the year 1997. P.W. 8 the wife of Kailash Patra stated that they had constructed a house on the government land out of their own fund and she had not received any amount from the Block Office. She stated that the house was constructed during the life time of her husband whereas it was the statement of P.W. 9 that they constructed the house in the year 1999 whereas Kailash Patra had died since 1997. The PW 9 the married daughter of Kailash Patra statement that she had not received any amount from the Block Office for construction of the house. Obviously, she was neither the beneficiary to receive the amount nor the amount had been given to her in view of the admitted position that the contractor was engaged for construction of the house. 13. Similarly so far as the other beneficiary Satrughana Patra is concerned, his daughter and wife have been examined as P.Ws. 6 and 7 respectively since Satrughana Patra expired before being examined in the court. P.W. 6 has stated that her father had applied for the housing scheme but they were not allotted with any funds. She added that her father constructed the house with his own funds. In her cross-examination, she expressed her ignorance about the amounts spent on construction of the house or when the house was constructed. Similarly, P.W. 7 stated that she had constructed the house out of her own fund and was not given with any amount from the Block. She added that her father constructed the house with his own funds. In her cross-examination, she expressed her ignorance about the amounts spent on construction of the house or when the house was constructed. Similarly, P.W. 7 stated that she had constructed the house out of her own fund and was not given with any amount from the Block. In her cross-examination she could not speak about the amount spent for construction of house nor had any knowledge as to the application of her husband for construction of house under Indira Awas Yojana. P.W. 11 is the Sarpanch of the village. He stated that in the year 1998 both the beneficiaries told him that they were not provided with the houses under the scheme and going to the village he found that the houses were not constructed in fact. He further added that going to the block, he could ascertain that the amount was sanctioned and one contractor was engaged in whose favour the amount was released. But, his cross-examination revealed that he had not stated so before the Investigating Officer. If one of the beneficiaries namely, Kailash Patra was dead since 1997 then it was impossible that he complained in the year 1998. This was the entire evidence on behalf of the prosecution regarding the construction of the houses utilizing the funds either by the beneficiaries themselves or provided by the Government. Another aspect brought to the notice on behalf of the petitioners was that as per the evidence of the concerned R.I., the houses were looking old. The R.I.. visited the spot in the year 1999. Hence, since the allotment of funds and the construction of the houses as per defence was in the year 1996-97, obviously, the houses were to be looking old. That again affects the statements of the prosecution witnesses that their houses were constructed out of their own funds in the year 1998. Further the R.I. and the Junior Engineer though stated about their spot visit and defects in the site and specifications, still they could not give the detailed findings being asked in their respective cross-examinations. That again affects the statements of the prosecution witnesses that their houses were constructed out of their own funds in the year 1998. Further the R.I. and the Junior Engineer though stated about their spot visit and defects in the site and specifications, still they could not give the detailed findings being asked in their respective cross-examinations. Thus, keeping the entire evidence of these witnesses as aforesaid, it can never be said that the prosecution was successful in establishing the allegation that the houses were constructed by the beneficiaries out of their own funds and not out of the funds provided by the Government on the admitted fact that the houses existed and the family members of the beneficiaries were staying therein. In this regard, it was also pointed out on behalf of the petitioners that the concerned Investigating Officer who was also the Enquiring Officer, has admitted in paragraph-4 of his cross-examination that the two houses were actually constructed. 14. The main thrust of the prosecution allegation was that the funds were released in favour of a private contractor violating the guidelines of the scheme and thereby established the conspiracy of the accused persons to misappropriate the funds. In this regard, placing the copy of the scheme, it was submitted by learned counsel for the State, Vigilance, that as per Rule 51.9 of the Scheme, it has been specifically mentioned that no contractor should be allowed in the construction of I.A.Y houses. Thus, it was submitted that when a contractor was engaged admittedly by the Block officials, the violation of the scheme as well as criminal intention of the accused persons remained proved. But, in this regard, it was submitted on behalf of the petitioners that as per Rule 51.10 of the Scheme, the construction of the houses should be done by the beneficiaries themselves from the very beginning. The beneficiary may make their own arrangements for the construction and may engage skilled workmen on their own and may also contribute family labour. Pursuant to the said provision, in a review meeting held under the Chairmanship of the Project Officer of D.R.D.A., it was decided that the I.A.Y. beneficiaries were allowed to select their nominees for construction of I.A.Y. houses. Pursuant to the said provision, in a review meeting held under the Chairmanship of the Project Officer of D.R.D.A., it was decided that the I.A.Y. beneficiaries were allowed to select their nominees for construction of I.A.Y. houses. Accordingly, both the beneficiaries made separate applications under their own signatures mentioning that since they were unable to carry on their constructions themselves, Lingaraj Sahu should be engaged to construct their houses. In this regard, the attention of the court was drawn to the evidence of the Investigating Officer P.W. 13 who in paragraph-5 of his cross-examination has admitted that in the respective case records of the two beneficiaries, applications were available submitted by the respective beneficiaries with a request to get the construction work of the houses done through Lingaraj Sahu. Hence, it was submitted on behalf of the petitioners that as per the provisions in the scheme, the beneficiaries had given their options for the skilled workman to construct the houses and accordingly, the contractor Lingaraj Sahu was engaged. Hence, there was absolutely no violation of the guidelines so as to impute the petitioners with the allegation of the criminal conspiracy. It was also submitted on behalf of the petitioners that the prosecution intentionally held back the concerned files of the Block in respect of the beneficiaries, which, if brought on record, could have disclosed the truthfulness of the transactions relating to the construction of the houses. 15. In view of the aforesaid facts and circumstances, basing on the evidence of the witnesses and materials brought on record, I find it difficult to agree with the findings reached by the learned trial court as well as by the learned appellate court that the houses were constructed not with the funds provided by the Government but from the own funds of the beneficiaries. The best persons to speak about the same would have been the two beneficiaries themselves but they could not be examined since they were dead. The evidence of the family members as discussed hereinbefore can never be said to have established beyond doubts that the houses were constructed from out of their own funds of the beneficiaries. In a criminal trial, the allegation of offence must be established against the petitioners beyond all reasonable doubts and not on mere preponderance of probabilities. The evidence of the family members as discussed hereinbefore can never be said to have established beyond doubts that the houses were constructed from out of their own funds of the beneficiaries. In a criminal trial, the allegation of offence must be established against the petitioners beyond all reasonable doubts and not on mere preponderance of probabilities. Hence, when the prosecution has not successfully established the main allegation that the houses were not constructed out of the government funds, the rest all other offences alleging conspiracy and misappropriation of funds or manipulation of documents fall to the ground requiring no further discussion. It was alleged that during spot verification by the Junior Engineer during investigation, it was found out that the measurements of the houses were not according to the required specifications. But, the said allegation has also not been successfully established in absence of any specific material on record as to what was the required specification and what was the deviation in that regard. If it is accepted that the houses were constructed by utilizing the funds provided by the Government, the allegations of conspiracy, preparation of false documents or misappropriation of funds do not have legs to stand. 16. Accordingly, while setting aside the judgments of both, the learned trial court as well as Appellate Court, I hold all the three petitioners not guilty of the offences punishable under Sections 409/120-B/471, I.P.C. and acquitting them thereof set them at liberty. L.C.R. be sent back. Revision allowed.