Madhya Pradesh High Court
Kamal Bhan Singh Alias Kamlesh Singh vs The State Of Madhya Pradesh on 30 January, 2018
Author: Sushil Kumar Palo
Bench: Sushil Kumar Palo
THE HIGH COURT OF MADHYA PRADESH
JABALPUR
MCRC-14084-2017
(KAMAL BHAN SINGH ALIAS KAMLESH SINGH.......... Petitioners
Vs
THE STATE OF MADHYA PRADESH.............Respondent
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For the petitioners: Mr.Vijay Kumar Shrivastava For the respondent: Mr.Mohit Nayak, Government Advocate sh Present:
e Hon'ble Mr.Justice Sushil Kumar Palo ad
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Pr ORDER a [30.1.2018] hy ad The petitioners preferred this petition under section 482 of the M Code of Criminal Procedure for invoking the extraordinary of jurisdiction of this Court and to quash the First Information Report at Crime No.224/2017 registered at Police Station, Nourazabad, District rt Umaria for offence under section 304 of the Indian Penal Code against ou the petitioners.
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2. The prosecution case, in brief, is that the petitioners-Bheem Sen Dhuliya, Bheem Sen Sahu and Kamlesh Singh resident of village h ig Gopalpur in between jungle of villages Jarha and Chhapri had taken H the labourers, namely, Puran Lal, Anand Kol, Janki Kol, Keshav Kol, Deena Bai Kol, Jagna Kol, Rasiya Kol, Sakun Bai, Matu Bai Kol and Damodar Kol for digging soil and loading in the trolley, sent them to Chhapri Khadan. The accused persons knew very well that the place where the soil was being dug is unsafe for the life and endangered the human beings for at any point of time the soil of the mountain could slide. Knowing very well the petitioners engaged the labourers to dig the soil. While the labourers were digging, due to mountain sliding, three labourers, namely, Puran Kol, Anand Kol and Janki Kol died. Therefore, Crime No.224/2017 registered on 19.6.2017 at Police Station, Nourazabad, District Umaria. After investigation charge-sheet has been filed for offences under section 304 read with section 34 of I.P.C. and sections 77 r/w 177, and section 46 r/w 196 and section 39 r/w 192 of the Motor Vehicles Act, 1988
3. On behalf of the petitioners it is claimed that they are innocent. The petitioner No.1-Kamal Bhan is the registered owner of the Tractor-MP-54/A-3514. Its insurance policy issued by Oriental Insurance Company was issued from mid-night of 20.10.2016 to 19.10.2017. The Tractor bearing registration No. MP-54/A-948 belonged to the petitioner No.2-Bheem Sen Dhuliya.The insurance sh policy is from 20.6.2017 to 19.6.2018 is issued by IFFCO-TOKIO e General Insurance Company.
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4. It is contended that the labourers around 20 in number Pr were working on the site. On 18.6.2017, suddenly the labourers slipped down and due to collapse of land three labourers were covered a under the earth. After dialing 100 the Assistant Sub Inspector hy Mr.Shailendra Singh visited the place of incident. They brought the ad dead bodies of Puran Kol, Anand Kol and Ku.Janki Kol. Thereafter, M First Information Report was lodged and other proceedings were done. Prima facie the offence under section 304 of the Indian Penal Code is of not made out. Because the earth slided naturally without any one's fault. The petitioner cannot be held liable. The authorities without rt considering the same have lodged the FIR against the petitioners. The ou petitioners, therefore, pray to quash the F.I.R. C
5. On behalf of the respondent/State the petition is h vehemently opposed and it is contended that in the FIR it is mentioned ig that petitioners are responsible for taking the labourers to the spot for H working. The statement of Bina Bai also show that the accused persons were responsible for taking the labourers to the Pahadi for engaging them in the work.
6. Perused the Police diary. Heard the counsel for the parties. The postmortem report of Puran Kol, Anand Kol and Ku.Janki Kol show that they died due to asphyxia as a result of suffocation by sand and seems to be accidental in nature. The statement of witnesses including Dinesh Kol, Bina Bai and Sammat Lal Kol show that the accused persons knowing that it is dangerous to work on the site engaged the labourers to dug the soil in Chhapri Khandan. They allowed the work to be carried out and the same falls under the category of endanger to human life. Twelve to fifteen feet below the surface the digging was being done, when the stone and earth started sliding from the mountain and, therefore, they died on the spot.
7. For the offence of culpable homicide not amounting to murder, under section 304 of the Indian Penal Code, following are to be kept in mind:-
(i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the sh punishment is imprisonment for life;
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(ii) If the act is done with knowledge that it is likely to ad cause death but without any intention to cause death or such bodily Pr injury as is likely to cause death, the punishment is imprisonment of earlier description for a term which may extend to ten years.
a When there is an act without any intention, but with the hy knowledge it is likely to cause death, offence under section 304 of ad Indian Penal Code is made out. But the knowledge that it is likely to M cause death is missing in the present case. On perusal of the spot map dated 19.6.2017, it is very clear that 15 ft. breadth of soil was being of dug and was being loaded in the tractor. The land slide occurred in Chhapri Pahadi, which was not anticipated.
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8. In the opinion of this Court, it is sheer negligence on the ou part of the accused persons who have asked the labourers to work in C that place.
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9. The word "negligence" denotes and should be used only to ig denote such blameworthy inadvertence and the man who through his H negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of injury who may sue him in tort for damages. It has been now recognized that at common law there are two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause an injury but without intention, to cause injury that it will probably be caused. The criminality lies in taking the risk of doing such an act with recklessness or being indifferent as to the consequence. Criminal negligence is gross and culpable neglect or failure to exercise with reasonable care and proper care to guard against injury either to the public generally or to an individual in particular. The hazard was such a degree that injury was most likely to be occasioned thereby.
10. For the reasons stated above, it is evident that the petitioners were rash and negligent in not taking the precautions that the land slide would come from the mountain nearby the place where they were digging earth through the labourers. The action of the sh petitioners is, therefore, not within the range of sections 299 and 300 e of the Indian Penal Code and, therefore, obviously contemplates the ad present case into which neither intention nor knowledge was present.
Pr Rash and negligent act of the accused persons, therefore, can be declared to be a crime one not amount to culpable homicide.
a Therefore, section 304-A of the Indian Penal Code is attracted and not hy section 304 of the Indian Penal Code.
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11. The petition is allowed partly. It is held that prima facie M offence under section 304 of the Indian Penal Code is not made out, but offence under section 304-A of I.P.C. is made out against the of petitioners.
rt (SUSHIL KUMAR PALO) ou JUDGE C Digitally signed by RAJESH T h MAMTANI ig Date: 2018.02.27 02:04:43 -08'00' H RM