RAGHUVENDRA S. RATHORE, J. - (1.) IN this revision petition, challenge has been made to the judgment dated 1/9/1995 passed by the learned Additional Chief Judicial Magistrate, No.6, Jaipur City, Jaipur, whereby he had convicted the petitioner for the offence under Section 304-A IPC and sentenced him for 1 year S.I. and a fine of Rs. 5,000/- in default of which to further undergo one month's S.I.; for the offence under Section 288 IPC and sentenced for a fine of Rs. 500/- in default of which to further undergo one month's S.I. and for the offence under Section 337 in the alternative 338 IPC and sentenced for a fine of Rs. 100/- in default of which to further under one month's S.I. Being aggrieved of the aforesaid judgment, the petitioner preferred an appeal which was partly allowed by the Special Judge (Communal Riots/ Man Singh Murder Case), Jaipur on 11.02.1999 and the petitioner was acquitted of the offence under Section 288 IPC. However, the learned Appellate Court had maintained the conviction and sentence awarded to the petitioner for other offences.
(2.) BRIEFLY stated, the facts of the case are that on 18.08.1982, the SHO of the concerning police station had gone to Sindhi Camp, Jaipur for some official work, where Sub-Inspector Puran Pratap Nirmal was also present and they heard a noise, as the construction work at Sargam Hotel fell down. Thereafter, the said police personnel alongwith one Rajkumar reached the place of incident, where the employees of the Roadways were removing the construction material so as to rescue the injured persons. The injured were then taken to SMS Hospital in a Roadways bus by the Sub-Inspector Rajkumar. As a result of the collapse of the roof, several persons were injured out of which seven died. On enquiry, it was found that the hotel was being constructed by its owner Prithivi Raj Choudhary through the contractor Shankar Lal, the petitioner. At the relevant time, work of laying the RCC roof was being done on the second floor and it was also found that after shuttering of the roof and the work of laying down the steel rodes had been completed by the contractor, there had been heavy rains for last two days. Thereafter when the work of putting the concrete was going that the incident had taken place. Thereafter, report (228/82) was registered for the offences under Sections 288, 336, 337 and 304-A IPC. On commencement of investigation, the police collected evidence by recording of the statement of witnesses and taking of photographs of the site, etc. The investigation revealed that the hotel building was being constructed by its owner Shri Prithviraj Choudhary and the building material was also supplied by him. The work of shuttering, etc. were given on contract to the petitioner Shankar Lal and the same was done by labourers. On conclusion of the investigation, the police filed challan on 17.02.1983 for the offences under Sections 304-A and 288 IPC. The learned trial court then framed charges against the petitioner for the offences under Sections 288, 337, 338 and 304-A IPC. The accused petitioner denied the charges and claimed for trial. The prosecution produced 11 witnesses in support of its case before the trial court, out of the total of 33. Subsequently, the statement of the petitioner was recorded under Section 313 Cr.P.C. The petitioner had in his defence examined two witnesses, namely Mool Chand (DW-2), who was injured in the incident and Nanda (DW-3). On conclusion of the trial, the learned trial court convicted and sentenced the petitioner on 01.09.1995 for the offences aforementioned. Feeling aggrieved of the said order, the petitioner preferred an appeal which came to be partly allowed by the Special Judge (Communal Riots/Mansingh Murder Case), Jaipur and the petitioner was acquitted of the offences under Section 288 IPC but the conviction and sentence awarded to him for other offences was maintained. Hence, the present revision petition. The learned counsel for the petitioner has submitted that the impugned judgments passed by the learned courts below are illegal and not sustainable in law because the prosecution has failed to establish the reason for collapse of the roof and had not proved that there was any rash or negligent act on the part of the accused which resulted in the incident. Further, he has submitted that out of 11 witnesses examined on behalf of the prosecution, seven witnesses did not support the prosecution story and they had been declared hostile. From the remaining four witnesses, the prosecution could not prove the offences alleged. He has also submitted that the important witnesses of the case, such as, the owner Prithviraj Choudhary (PW-10) was not relied upon by the learned trial court and Govind Ram Arora, who was the contractor for construction of the building had not even been produced. The learned counsel for the petitioner has also submitted that the prosecution did take sample of the material used for construction of the building (Ex.P-3) but the same was not sent to the Forensic Science Laboratory. Even the report of PWD, where the material of the construction had been sent, was never placed on record. Another submission made by the counsel for the petitioner, on which he has emphasized, is that the material facts revealed from the statements of the prosecution witnesses such as PW-5 and PW-6, which had formed the basis of the prosecution story, had not been put to the accused petitioner at the time of recording of his statement under Section 313 Cr.P.C. Therefore, he has submitted that this was a very vital aspect of the prosecution case and in absence of which the entire trial is vitiated. In support of his submission, he has placed reliance on the cases of Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra, AIR 1965 SC 1616; Public Prosecutor vs. Moopanar @ Pitchaiah Pillai, AIR 1970 Madras 198; State of Haryana vs. Ram Singh, (2002) 2 SCC 426; Vikramjit Singh @ Vicky vs. State of Punjab, (2007) 1 SCC (Cri) 732 and Asraf Ali vs. State of Assam, 2008(5) Supreme 270. On the other hand, the learned Public Prosecutor has supported the judgments passed by the learned courts below and submitted that prosecution has succeeded in proving its case beyond doubt in respect of the offences for which the accused petitioner has been held guilty. Further, he has submitted that the learned courts below had held that the petitioner was a contractor for laying down the RCC roof and when it had collapsed then the damage caused has to be attributed to him because of improper shuttering beneath the roof. He has also submitted that the prosecution case is well proved on the basis of the statements of the witnesses present at the time of incident, such as Panchu Lal (PW-5) and Ram Dayal (PW-6). The Investigation Officer has also proved the investigation conducted by him, such as seizure of the construction material, which had been sent to PWD, etc. On having given my thoughtful consideration to the aforesaid submissions made by the counsels for the rival parties and on careful perusal of the material on record, I am of the considered opinion that this revision petition has merits and deserves to be accepted. The prosecution case is that on 18.08.1982, construction which was going on at Sargam Hotel had collapsed, as a result of which many persons were injured who had come underneath. The said hotel belonged to Prithviraj Choudhary and the same was being constructed on contract basis through Shankar Lal, the petitioner. Different works of construction such as shuttering, etc. were being done under the supervision of sub-contractors. The building material was supplied by the owner of the hotel. There had been heavy rains prior to the day of incident. When the construction on the second floor was going on that the shuttering collapsed, resulting in falling of the RCC roof. The prosecution case is that the incident had taken place on account of negligence of the contractor who was supervising the construction of the building. Therefore, the prosecution has levelled allegations against the petitioner primarily for the offence under Section 304-A IPC. It would be relevant to take note of the provisions under Section 304-A IPC which reads as under:-304-A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
(3.) THE said provision requires that the death should have been by a rash and negligent act of the accused. In other words, the death must be the direct or proximate result of rash and negligent act. THE said provision of law had been considered in the leading case of Emperor vs. Omkar Rampratap, 4 Bombay LR 679. While considering Section 304-A IPC, Sir Lawrence Jenkins had observed as under:- To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. THEreafter, the said view had been followed in a number of cases by different High Courts. In the case of Kurban Hussein Mohamedalli Rangawalla (supra), the Hon'ble Supreme Court had also affirmed the aforesaid view that death must be the direct or proximate result of a rash or negligent act of the accused. Later on, in the case of Public Prosecutor vs. Pitchaiah Moopanar @ Pitchaiah Pillai, AIR 1970 Madras 198, the principle had been followed. In the said case, the accused was the manager of a school and he had a building put up, employing masons who had constructed the same with excess of sand in the mortar, the building collapsed killing several inmates including 35 school children and several others were injured. The accused in that case had been acquitted by the learned Sessions Judge, who had set aside the conviction and sentence imposed by the learned Magistrate. The High Court of Madras had held that there was no compelling reason to reverse the order of acquittal passed by the learned Sessions Judge as the prosecution had not established its case beyond reasonable doubt that the school building collapsed, causing the death of several persons and injuries to several persons, by the rash and negligent act of the respondent. In the light of the aforesaid principle and from the material on record in the present case it is revealed that the prosecution has failed to give the reason for collapse of the building or prove that the rash and negligent act of the petitioner was the direct result of the collapse. The RCC roof which was being laid down, had been supported by shuttering for which contract was given to other person. It is said that it was on account of less number of supporting material that the floor collapsed and the heavy rains for last two days prior to it had also added to the cause. So far as the material used in the construction is concerned, the prosecution had seized the same and took samples. The samples were not sent to the FSL but to the PWD and the report received from it was never placed on record. ;