Decided on August 12,1966



- (1.) THE appellant, who was accused No. 1, is an employee of Messrs. Spunpipe and Construction Co. (Baroda) Private Ltd. He was convicted under Section 304a of the Indian Penal Code. One Ishwar Petha, a worker died due to sandy earth having fallen on him while he was working in a pit in which drainage pipes were being laid. The pit was about 18 feet deep, 12 feet in breadth and 8 to 10 feet in length. The Municipal Corporation, Ahmedabad, had given a contract to Spun pipe and Construction Co. (Baroda) Private Ltd. The appellant we looking after the work done by workers for the Company. The death of the aforesaid worker occurred as a consequence of failure to provide a support of suitable shoring. The question is whether the omission to do the shoring would amount to negligence. In R. v. Haines (1847) 2 O. and K. 868, a person was killed as a result of omission to cause a coal-mine to be ventilated and noxious gases accumulated and exploded. In that case it was held that the prosecution must prove that it was the duty of the accused to have directed an air heading to be made in the mine and that by omitting to do so, he was guilty of a want of reasonable and ordinary precaution. It was further held that the prosecution must prove that it was the plain and ordinary duty of the accused to have caused an air heading to be made in the mine and that a man using reasonable diligence would have done it, and that, by the omission, the death of the deceased occurred. It was also held in that case that if a person's death be occasioned by the neglect of several persons, they are all guilty of manslaughter and that it is no defence for one, who was neglectful, to say that another was neglectful also. I agree with these observations. The accused in the instant case has admitted in his examination that he was responsible for the work done, and in the written statement he admitted that he was looking after the drainage work between Naranpura Char Rasta and Ghatlodia. Witness Nagarbhai Bhagubhai Patel, Ex. 21. has stated that the soil of the pit was sandy on the upper level, that after 7 feet the proportion of the sand was more and that after 8 feet and a half there was more proportion of the sand in the soil. According to this witness, shoring should have been done. But this was admittedly not done. Whether this witness is an expert or not, his evidence as to the nature of the soil is admissible even if he is not an expert, and it is clear that when a pit was dug about 18 feet deep, shoring must be done to avoid risk to life of workers working inside the pit. This witness has also stated that in Ahmedabad, at the time of drainage, some portion is kept as tunnel and no shoring is done in the tunnel portion. According to witness Jethalal, Ex. 25, who was working near the deceased, the earth of the upper level gave way. In cross-examination he has stated that the accident took place near the tunnel portion. The earth fell from the juncture of the tunnel and the open pit. It may be that the earth began to give way first at the juncture of the tunnel. But that docs not show that no shoring was necessary in the rest of the pit. The shoring should have been done from the juncture of the tunnel. It is therefore, clear that the appellant was guilty of neglect and was responsible for causing the death of the deceased as a result of his negligence in his duty.
(2.) THE conviction and sentence of the appellant are, therefore, confirmed, and the appeal is dismissed.;

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