Kuldeep Sharma vs State Of H.P. & Anr

KULDEEP SHARMA .... APPELLANT

VERSUS

STATE OF H.P. & ANR. ..... RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Appellant, aggrieved by his conviction and sentence

under Sections 120-B, 467, 468, 471 and 420 of the Indian

Penal Code, 1860 (hereinafter referred to as the "IPC") and

Section 5(2) of the Prevention of Corruption Act, 1947

(hereinafter called as "P.C. Act") is before us with leave of the

Court.

2. According to the prosecution, in the year 1984 the

appellant Kuldeep Sharma and Co-accused Rajinder Sharma

were posted as Junior Engineer and Assistant Engineer

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respectively at Jubbal Sub-division of the Irrigation and Public

Health Department of the Government of Himachal Pradesh.

A telegram alleging malpractices against both of them were

received on 26th September, 1984 in the Anti-Corruption Unit

at Shimla. A preliminary investigation was conducted and on

that basis, First Information Report No. 5/84 was lodged.

Investigation revealed that muster roll no. 146 (Ext. PW-1/A)

for the period 1st of July, 1984 to 31st of July, 1984 which

pertained to the running and maintenance of flow irrigation

scheme was earlier given to PW-1 Chander Singh, Meter

Reader, who returned with the endorsement `blank' on it to the

co-accused. On 29th of August, 1984, co-accused smeared the

word `blank' with red ink and handed over to PW-2 Dula Ram

to enter the names of two labourers and to mark them present

for the month of July, 1984. In the said muster roll, the names

of Kanshi Ram and Ram Bahadur were recorded by PW-2 Dula

Ram, the then Supervisor and it was countersigned by the

appellant. On the basis of the said entry, wages were paid to

the aforesaid persons. According to the prosecution on

investigation it transpired that the aforesaid labourers did not

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work for the period for which they were marked "present" in

the muster roll.

3. Further case of the prosecution is that Muster Roll No.

230 (Ext. PW-3/A) for the period 1st September, 1984 to 30th

September, 1984 pertaining to the repairs and maintenance of

water supply scheme was issued by the then Executive

Engineer PW-14 D.R. Gupta to the co-accused who in turn

endorsed it to the appellant herein. However, lateron, co-

accused struck-off the first endorsement and endorsed it to

Hazari Nand (PW-8), the then Supervisor. This muster roll

contained the names of Devki Nand, Gursa Ram, Lok Pal and

Joginder Singh as casual labourers recorded by Hazari Nand

and verified by the appellant. Payments to the aforesaid

labourers were made by the Assistant Engineer who succeeded

the co-accused.

4. Sanction for prosecution of the appellant alongwith co-

accused was granted for offence punishable under Sections

409, 465, 467, 468, 471, 201, 511 and 120-B of the IPC as

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also for offence under Section 5(2) of the P.C. Act. While

granting sanction, the State Government observed that the

appellant entered into criminal conspiracy with the co-accused

and prepared false muster roll no. 146 in which names of

casual labourers, who were not engaged, inserted.

5. Both of them i.e. Appellant Kuldeep Sharma, Junior

Engineer and Co-accused Rajinder Sharma were sent up for

trial and they were charged for commission of the offence

under Sections 467, 468, 471, 420 and 120-B of the IPC and

Section 5(2) of the P.C. Act. Appellant, pleaded not guilty and

claimed to be tried.

6. In order to bring home the charge, the prosecution has

altogether examined 15 witnesses besides a large number of

documents were exhibited. The defence of the appellant is

denial simplicitor and he termed the incriminating evidence

against him as false when examined under Section 313 of the

Code of Criminal Procedure. On appraisal of the evidence, the

Trial Court convicted the appellant and the co-accused for

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offence under Sections 120-B, 467, 468, 471 and 420 of the

IPC and Section 5(2) of the P.C. Act and sentenced them to

various terms of imprisonment.

7. Appellant as also the co-accused aggrieved by their

conviction and sentence preferred separate appeals. The High

Court by the impugned judgment dismissed both the appeals

with some reduction in sentence.

8. This order will govern the case of the appellant only.

9. Mr. Ashok Kr. Panda, learned Senior Counsel appearing

on behalf of the appellant made attempt to assail the finding of

the trial court as affirmed by the High Court and while doing

so contended that in fact the appellant had not certified the

contents of the muster roll and further no certificate was given

by him. However, from the evidence of PW-1, Shri Chander

Singh, PW-2 Shri Dula Ram and PW-14 Shri D.R. Gupta,

Meter Reader, Supervisor and Executive Engineer respectively,

it is evident that the muster roll was verified by the appellant

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herein. The muster roll has been exhibited which bears the

signature of the appellant. PW-14, D.R. Gupta has stated in

his evidence that the muster roll basically is a document

which is maintained by the Junior Engineer in which the

names of the persons engaged and working are shown and on

that basis the payment is made to the labourers engaged. The

witnesses have further stated that muster roll no. 146 and 230

(Ext. PW1/A and Ext. PW-3/A) respectively were verified and

countersigned by the appellant. In that view of the matter,

there is no escape from the conclusion that it is the appellant

who had verified and countersigned the muster roll and gave

false certificate and on that basis wages were disbursed to the

labourers.

10. Mr. Panda, then submits that the appellant was a whistle

blower and in fact complained about the mal-functioning of

the co-accused and was forced to sign the muster roll. In

support of the submission, reliance has been placed on few

decisions of this Court. Mr. Himinder Lal, learned Counsel,

however, representing the respondent submits that the

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appellant after having been caught is raising the plea of

whistle-blower and at no point of time he ever complained

about the functioning of the Assistant Engineer, the co-

accused Rajinder Sharma. In this connection, he drew our

attention to the evidence of P.W.14, the Executive Engineer

who denied the appellant's suggestion that any complaint was

made to him against the Assistant Engineer. The plea of

whistle-blower has not been stated by the appellant even in

statement under Section 313 of the Code of Criminal

Procedure. In fact, he had denied his participation in the

crime in any way. At no point of time, did he raise any

objection about the alleged coercion and threat by the co-

accused. Appellant was not a casual daily wager and could not

have been removed by the co-accused. In that view of the

matter, we are of the opinion that the plea raised by the

appellant of whistle blower deserves to be rejected. In view of

what we have found on fact, it is not necessary to refer to the

decisions of this Court relied on by the appellant.

8 11. Mr. Panda, then submits that the State Government

while granting sanction has taken into account the entry of

fictitious names of casual labourer in muster roll no. 146 but

charge was framed in respect of muster-roll no. 230 and

therefore the conviction of the appellant is vitiated on this

ground alone. This submission need not detain us much. As

stated earlier, the appellant has been convicted for his role in

relation to muster roll no. 146 and 230. Admittedly, while

sanctioning prosecution, the role of the appellant in relation to

muster roll no. 146 has been adverted to. Therefore, his

conviction can not be held to be illegal only for the reason that

no reference was made to muster-roll no. 230 in the sanction-

order.

12. Mr. Panda, lastly submits that the occurrence had taken

place as back in the year 1984 and the appellant had not only

suffered ordeal of trial and appeal for long 27 years and infact

lost the job also and in such a situation, the ends of justice

shall be met if the sentence of the appellant is reduced to the

period already undergone. It is relevant to state that the High

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Court while dismissing the appeal has reduced the substantive

sentence to one year each for the offence under Section 120-B,

467, 468, 471 and 420 of the IPC besides Section 5(2) of the

P.C. Act. We are of the opinion that sentence awarded to the

appellant in the facts and circumstances of the case cannot be

said to be excessive, calling for interference in this appeal.

13. In the result, we do not find any merit in the appeal and it

is dismissed accordingly.

................................................J.

( HARJIT SINGH BEDI )

................................................J.

( CHANDRAMAULI KR. PRASAD )

NEW DELHI,

APRIL 04, 2011.