Chattisgarh High Court
Raju Sultania vs State Of Chhattisgarh 24 Sa/44/2005 ... on 28 March, 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.9 of 2015
Order Reserved on : 7.1.2019
Order Passed on : 28.3.2019
Raju Sultania, son of Late Shri Lakheswar Prasad Sultania, aged about 56
years, resident of Near Sai Mandir, Vinoba Nagar, Bilaspur, P.S. Tarbahar,
Tahsil and District Bilaspur, Chhattisgarh
---- Applicant
versus
State of Chhattisgarh through Police Station Incharge, Police Station Sirgitti,
District Bilaspur, Chhattisgarh
--- Respondent
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For Applicant : Shri Kishore Bhaduri, Shri Ankit Singhal, Shri Prateek Lunked and Shri Shobit Banerjee, Advocates For Respondent : Shri Adil Minhaj, Panel Lawyer
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Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER
1. This revision has been preferred against the order dated 13.12.2014 passed by 5th Additional Sessions Judge, Bilaspur in Case No.100 of 2014, whereby the Additional Sessions Judge has framed charge against the Applicant for an offence punishable under Section 304/34 IPC.
2. Facts of the case, in brief, are that the Applicant is a partner of a firm, namely, R.G. Builder and the said firm is engaged in the business of construction and development of residential and commercial buildings. The said firm proposed a multi storey residential building at Sirgitti, Bilaspur in the name of Galaxy Apartment. For that work, the said firm through the Applicant entered into an agreement with co-accused Satish Sonwani on 2 17.10.2013. As per the prosecution case, on the east side of site of Galaxy apartment, there was a wall constructed by the railways in the direction of north-south measuring about 60 feet in length and allegedly between the site of the Galaxy Apartment and the wall of the railways, both the accused persons, i.e., the Applicant and co-accused Satish Sonwani dumped sand upto the height of the wall of the railways. On 4.6.2014, two labours namely Jankibai and Santoshibai by putting a ladder on the said wall were dumping the stored sand to the other side of the wall. Suddenly, the wall constructed by the railways collapsed as a result of which the above named two labours died. A report was made to the police by one Kripashankar Sharma. On the basis of said report, offence was registered and on completion of the investigation, a charge- sheet was filed against the Applicant as well as against co-accused Satish Sonwani for offence punishable under Section 304/34 IPC. Vide the impugned order dated 13.12.2014, the Additional Sessions Judge framed charge against the Applicant and co- accused Satish Sonwani under Section 304/34 IPC. Thus, this revision by Applicant Raju Sultania.
3. Learned Counsel appearing for the Applicant submitted that the ingredients for constitution of offence under Section 304 IPC are not available against the Applicant. Even if the case of the prosecution is accepted in totality, at the best, the Applicant can be prosecuted for the offence under Section 304A IPC not under Section 304 IPC. It was further submitted that no role was played by the Applicant in dumping the sand at the abovementioned place nor did he play any role in dumping the said sand to the other side of the wall. According to the clauses of the agreement dated 3 17.10.2013, co-accused Satish Sonwani was to arrange labours and get the work of construction etc. executed. Therefore, the Applicant cannot be implicated in the case for the act done by co- accused Satish Sonwani.
4. Learned Counsel appearing for the State/Respondent supported the impugned order of the Trial Court and submitted that there is sufficient evidence available on the basis of which offence under Section 304 IPC can be made out against the Applicant also. Therefore, the Trial Court has rightly framed the charge against the Applicant for the offence punishable under Section 304/34 IPC.
5. I have heard Learned Counsel appearing for the parties and perused the material available including the charge-sheet with due care.
6. While dealing with the subject issue, the Supreme Court, in (2012) 2 SCC 648 (Alister Anthony Pareira v. State of Maharashtra), observed as follows:
"26. Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under:
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to 4 cause death."
27. The above section is in two parts. Although the section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the Judges and the authors refer to the first paragraph of the section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment.
28. For punishment under Section 304 Part I, the prosecution must prove the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is "culpable homicide not amounting to murder"--since Section 304 does not define this expression--Sections 299 and 300 IPC have to be seen.
29. Section 299 IPC reads as under:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death."
It has been further observed by the Supreme Court as under:
"39. Like Section 304A, Sections 279, 336, 337 and 338 IPC are attracted for only the negligent or rash act. The scheme of Sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that these 5 offences are punished because of the inherent danger of the acts specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. These sections make punishable the acts themselves which are likely to cause death or injury to human life."
7. In the light of above enunciation of law, if I examine the facts of the present case, I find that there is no dispute on the point that as per the agreement dated 17.10.2013 contract for construction work was allotted to co-accused Satish Sonwani. As per the clauses of the agreement, co-accused Satish Sonwani was to arrange labours and get the construction work executed. There is also no dispute on the point that on the east side of the Galaxy Apartment, there is a wall of about 60 feet in length constructed by the railways. Dumping of sand was done between the site of the Galaxy Apartment and the wall of the railways. As stated by the witnesses in their statements recorded under Section 161 Cr.P.C., it is also clear that on the date of incident, both labours Jankibai and Santoshibai by putting a ladder on the wall of the railways were dumping sand to the other side of the wall. During that time, the wall collapsed. Though as per the agreement, arrangement of labours and execution of construction work was the responsibility of co-accused Satish Sonwani, prosecution witnesses Kripashankar Sharma, Bablu Yadav, Laxman Yadav, Laxmin Yadav, Rajram Prajapati and other witnesses have categorically stated that dumping of the sand at the spot was got done by both the Applicant and co-accused Satish Sonwani. Complainant Kripashankar Sharma has also categorically stated that the Applicant was also supervising the work being done at the spot and was visiting the spot frequently. Thus, from the statements of 6 the witnesses, prima facie, it is established that supervision of the work at the spot was being done by both the Applicant and co- accused Satish Sonwani.
8. Even if the evidence collected by the prosecution is taken as it is, in my considered opinion, prima facie, no offence under Section 304/34 IPC is made out against the Applicant or against co- accused Satish Sonwani because the facts of the present case and the evidence collected by the prosecution clearly show that when the labours were dumping the sand to the other side of the wall of the railways by putting a ladder on the wall, at that time, suddenly, the wall collapsed and the labours died due to coming under the wall. At the time of incident, the Applicant or co-accused Satish Sonwani was present at the spot, there is no evidence available in this regard. Even if for the sake of argument it is accepted that at the time of incident, the Applicant or co-accused Satish Sonwani was present at the spot and the work was being done in their supervision, it is not established that there was any intention on the part of the Applicant or co-accused Satish Sonwani to cause death of the labours or to cause such bodily injury as is likely to cause their death. There is nothing on record from which it could prima facie be established that it was within the knowledge of the Applicant and co-accused Satish Sonwani that the wall will fall due to its weakness. Therefore, at the time of execution of work of dumping of sand it was within the knowledge of the Applicant and co-accused Satish Sonwani that the wall will fall and there can be any death due to falling of the said wall there is no evidence available to prima facie establish this fact. From the evidence collected by the prosecution, prima facie, it is established that the 7 wall fell due to its weakness as well as due to pressure of dumped sand. Thus, from the evidence collected by the prosecution, in my considered opinion, prima facie, no any offence under Section 304 IPC can be made out against the present Applicant and co- accused Satish Sonwani. But, from the evidence collected by the prosecution, prima facie, it is established that there was negligence on the part of both the Applicant as well as co-accused Satish Sonwani in getting the sand dumped at the place and the work of dumping of the sand to the other side of the wall was also being got executed by the labours without making arrangement of safety of the labours. Thus, in my considered view, from the evidence collected by the prosecution only the offence under Section 304A IPC is made out against the Applicant as well as co-accused Satish Sonwani.
9. Consequently, the revision is allowed in part. The charge framed against the Applicant as well as co-accused Satish Sonwani under Section 304/34 IPC is quashed. Both are discharged from the said charge. But, the Trial Court is directed to frame a charge under Section 304A/34 IPC against both the present Applicant and co- accused Satish Sonwani and send the case to the concerned Court for trial in accordance with law.
Sd/-
(Arvind Singh Chandel) JUDGE Gopal