Gujarat High Court
Sunil Prabhudas Sarvaiya vs State Of Gujarat on 4 July, 2024
NEUTRAL CITATION
R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1007 of 2007
With
R/CRIMINAL APPEAL NO. 973 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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SUNIL PRABHUDAS SARVAIYA
Versus
STATE OF GUJARAT
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Appearance in Criminal Appeal No.1007 of 2007:
MR DIVYESH SEJPAL(1322) for the Appellant(s) No. 1
MR SOAHAM JOSHI, APP for the Opponent(s)/Respondent(s)
No. 1
Appearance in Criminal Appeal No.973 of 2007:
MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR. PRAVIN
GONDALIYA for the Appellant(s) No. 1 - 5
MR SOAHAM JOSHI, APP for the Opponent(s)/Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date :04/07/2024
CAV JUDGMENT
1. As facts and issue involved in both the appeals Page 1 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined are identical and both the appeals are directed against the common impugned judgment and order passed by the learned Trial Court, both these appeals are heard together and being disposed of by this common judgment.
2. By way of preferring Criminal Appeal No.973 of 2007 under Section 374(2) of the Code of Criminal Procedure, 1973, the appellants have assailed the judgment and order of conviction dated 17.07.2007 passed by learned Additional Sessions Judge, Gandhidham - Kachchh in Sessions Case No.36 of 2002, whereby, the appellants have been convicted for the offence punishable under Sections 304 Part-II, 337 and 338 of the Indian Penal Code. So far as offence under 304 Part-II IPC is concerned, the appellants are ordered to undergo 5 years' Rigorous Imprisonment and to pay fine of Rs.30,000/- each and in default of payment of fine, the appellants have to undergo one year Simple Imprisonment. So far as offence under Section 337 IPC is concerned, the appellants are ordered to undergo three months simple imprisonment and to pay fine of Rs.500/- each and in default of payment of fine, the appellants have to suffer 10 days' SI. So far as offence under Section 338 IPC is concerned, the appellants are ordered to undergo one year simple imprisonment and to pay fine of Rs.500/- each and in default of payment of fine, the appellants have to suffer 10 days SI'.
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3. By way of preferring Criminal Appeal No.1007 OF 2007 under Section 341 of the Code of Criminal Procedure, 1973, the appellant has assailed the same judgment and order dated 17.07.2007 passed by learned Additional Sessions Judge, Gandhidham - Kachchh in Sessions Case No.36 of 2002, whereby, the learned Judge has, in exercise of powers under Section 340 of the Cr.P.C., directed an officer of the learned Trial Court to file a complaint for the offence punishable under Sections 191, 193, 199, 200 and 201 of the Indian Penal Code against the present appellant.
4. The brief facts of the case of the prosecution can be summarized as under:
4.1 It is the specific case of the prosecution that at around 8:45 a.m. on 26.01.2001, due to the incident of devastating earthquake, total 89 persons including kids, have been died in Keval, Kinnar and Kinjal complexes. The said buildings were constructed by the appellants of Criminal Appeal No.973 of 2007.
The construction of said complexes was not up to the mark and the material used for construction of said complexes was of inferior quality and therefore in the earthquake the said complexes were collapsed, due to which, number of innocent persons have lost their valuable lives. Therefore, FIR is registered against the accused persons for the offence punishable under Sections 304, 337, 338, 120B of the Indian Penal Code and under Sections 3(2)(c)B, 7(1)(i)(2) and 42 of the Page 3 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined Gujarat Flat Ownership Act. Pursuant to the registration of the FIR, the investigation has started and investigating officer has collected ample evidences against the accused persons. Therefore, they were arrested and subsequently charge-sheeted. As the offences are exclusively triable by the Court of Sessions, the learned Judge concerned has committed the case to the Court of Sessions. The accused persons have not pleaded guilty and therefore trial has been commenced. To prove the charges against the accused persons, the prosecution has examined total 20 witnesses and many other documentary evidences were also adduced. The cumulative effect of all those evidences clearly shows the hypothesis of guilt on the part of the accused persons. Therefore, impugned judgment and order of conviction has been passed. Being aggrieved by and dissatisfied with the said judgment and order of conviction, present appeal is preferred by the appellants.
5. Heard Mr. Y. S. Lakhani, learned Senior Advocate assisted by learned advocate Mr. Pravin S. Gondaliya for the appellants of Criminal Appeal No.973 of 2007 and learned advocate Mr. Divyesh C. Sejpal for appellant of Criminal Appeal No.1007 of 2007 and learned APP Ms. Monali Bhatt for the respondent - State.
6. Learned Senior Advocate Mr. Lakhani submits that Page 4 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined the impugned judgment and order of conviction passed by the learned Trial Court is erroneous, unjust, improper and against the evidence available on record and against the facts and circumstances of the case and at the time of jumping to the conclusion, learned Judge has not properly appreciated the basis principle of criminal jurisprudence and therefore the impugned judgment and order of conviction is required to be quashed and set aside. Learned Senior Advocate Mr. Lakhani further submits that it is settled proposition of law that in a criminal proceedings, prosecution has to prove its case beyond reasonable shadow of doubt, whereas, in civil litigation the plaintiff has to prove his case on the basis of principle of law of preponderance of probability. Learned Senior Advocate Mr. Lakhani submits that in the present case, the prosecution has to prove its case beyond reasonable shadow of doubt. Admittedly, at the time of recording the evidence of prosecution witnesses, there are so many infirmities, improvements, contradictions and lacuna in the depositions of the said witnesses and therefore the prosecution has miserably failed to prove the charges levelled against the appellants. Learned Senior Advocate Mr. Lakhani has read the evidence of all the witnesses and submitted that essentially at the time of appreciating the evidence available on record, the learned Sessions Judge has given much emphasis to two set of evidences available on record and essentially by putting reliance upon those set of evidences, Page 5 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined learned Judge has passed the order of conviction.
7. The first issue is that at the time of recording the deposition of Prosecution Witness No.12 - Amit Shriramsuresh Trivedi at Exh.56, who was working in the National Council for Cement and Building Materials, Vallabhgadh, Haryana as a Deputy Manager, the said witness has very categorically stated that the accused persons have used 6 mm thick iron rods for construction of beam of the buildings and therefore as per the report of the said expert, the size of the hook (the size of the iron rod to be kept outside the concrete structure of beam) must be 8 times more than the thickness of the iron rod installed for construction of the beam. In short, the size of the iron rod to be kept outside the concrete structure of beam should be 6 mm x 8 mm = 48 mm which are required for the purpose of earthquake proof construction. Learned Senior Advocate Mr. Lakhani submits that however, the learned Judge has misinterpreted the said deposition given by the expert by holding that instead of 48 mm thick iron rods, the appellants have used 6 mm iron rods for construction of beams of the buildings in question with a sole intent to grab huge profit and therefore the said buildings could not be able to sustain the effect and jolt of the earthquake, as a result of which, 89 innocent persons have lost their valuable lives. Learned Senior Advocate Mr. Lakhani has read the evidence of the said witness and submitted that Page 6 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined if the evidence of the said witness is to be read as it is, in that event, it is found out that it is stated in very specific term by the said witness that at the time of construction of the beam, the size of the iron rod kept outside of the concrete structure of beam must be 8 times more than the thickness of the iron rod installed for construction of the beam to give strength to the building. Admittedly, the reasons assigned by the learned Judge at the time of appreciating the evidence available on record and logic applied by the learned Judge at the time of making observations in the operative part of the order are quite contrary to the evidence available on record and prima facie it seems that the assessment, appreciation and evaluation of evidence is without any basis and supportive evidence and learned Judge has jumped to the conclusion solely on the basis of conjectures, surmises, assumptions and presumptions and evidence available on record cannot be appreciated and evaluated on the basis of the conjectures and surmises. Therefore, the interpretation made by the learned Judge is erroneous and misconceived, which ultimately led to passing of the impugned order.
8. The second important issue upon which learned Judge has put much emphasis at the time of assigning reasons is that the material used by the appellants at the time of construction of the building is not up to the mark and said fact is also supported by the Page 7 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined scientific evidence. To establish the said charge levelled against the accused persons, the Court would have to go through the procedure of sample collection. The samples were collected by the prosecution witnesses in presence of Panchas. All the Panchas have not supported the case of the prosecution and therefore, entire case of the prosecution hinges upon the deposition of the expert persons who had gone at the place of occurrence to collect the samples from the debris. Learned Senior Advocate Mr. Lakhani has read the evidence of all the witnesses and submitted that all the expert witnesses were basically belonging to different cities and after the occurrence of the incident of devastating earthquake within the State of Gujarat, wherein, as per the report, the epicenter of which was at Kachchh and in the said earthquake number of buildings of State of Gujarat including Kachchh District have been collapsed and damaged and thousand of persons have lost their lives in the said incident and therefore the persons from different cities have been called to figure out the situation of ground reality and those persons have collected samples. Learned Senior Advocate Mr. Lakhani submits that if the evidence of these persons are seen, in that event, they have very categorically deposed that they had gone to the place of occurrence along with heavy excavators and bulldozers of Hitachi company and with the help of those machines they have cut down certain portion of debris and collected the samples from the place of Page 8 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined occurrence. During the course of cross-examination of these witnesses it has come on record that if the samples have been collected with the help of heavy loaded machines, in that event, the resultant effect of the test carried out of the said samples might have been compromised. Learned Senior Advocate Mr. Lakhani submits that thus, admittedly, from the evidence of the prosecution witnesses it is found out that at the time of collecting samples they had gone along with heavy machine like excavators and bulldozers. Learned Senior Advocate Mr. Lakhani further submits that from the evidence of those witnesses, it has also not come on record that they had taken samples of which part of the buildings in question.
9. Learned Senior Advocate Mr. Lakhani further submits that one of the prosecution witnesses, who is the police officer and who has done videography and taken photographs from the place of occurrence, has very categorically deposed that immediately after the occurrence of the incident, within a period of one month, the members of the authority of Kandla Port Trust have removed all the debris of that area and at the time of collecting sample the land was plain. Therefore, at the time of collection of the samples, debris were already removed by the competent Government authority and it is the specific case of the prosecution that they had carried out photography as well as videography of the place of occurrence.
Page 9 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined Learned Senior Advocate Mr. Lakhani submits that those set of evidence have not been produced on record by the prosecution for the reasons best known to the prosecuting agency. Not only that, it is also found out from the evidence of other witnesses that another police officer was also called at the place of occurrence and he had also done photography and videography of the place of occurrence and prosecution has also failed to produce the said set of evidence. Thus, the said fact clearly goes on to show that at the time of collection of the samples, the debris were not at all available at the place of occurrence and there was plain surface at the ground level. Learned Senior Advocate Mr. Lakhani further submits that in the city of Gandhidham due to the impact of devastating earthquake, number of buildings have been collapsed and other buildings situated near the buildings in question i.e. Keval, Kinnar and Kinjal complexes have also been collapsed and there was no sign board and/or signage available at the site. The persons who had collected samples were not belonging to Gandhidham (local) and they had come from altogether different cities and therefore they were not familiar with the topography of the city and/or aware about geographical location of that particular area. Learned Senior Advocate Mr. Lakhani further submits that it is the specific case of the prosecution that at the time of collecting the sample, the sample collecting authority had inquired about the name and ownership of the property and Page 10 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined thereafter samples were collected but who had given instructions to them had not come on record. The prosecuting agency has not recorded statement of a single person, who alleged to have identified the name and area of the apartment and disclosed the said fact before the sample collecting authority. Learned Senior Advocate Mr. Lakhani further submits that if the evidences of all the witnesses who had gone to collect the samples from the site in question are to be read as it is, in that event, it is found out that as per the say of the said persons, the site in question was identified by the local residents of nearby area. However, the prosecuting agency has failed to give the name of those independent persons who had identified the sites in question. The said persons have not been examined as witnesses and therefore defence could not get chance to cross- examine them, which ultimately caused prejudice to the accused persons. Therefore, the basic and fundamental fact about the identification of the apartment is not at all found out from the evidence available on record. Hence, in absence of proof of collection of samples from the particular apartment, order of conviction cannot be passed against the appellants.
10. Learned Senior Advocate Mr. Lakhani further submits that during the course of recording of evidence of Panch Witnesses, a very pertinent question was asked by the defence and the Panchas Page 11 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined have very categorically stated that immediately within a period of one month, the Kandla Port Trust have removed debris from the city and said version of the Panchas is also corroborated with the evidence of the prosecution witness - police officer. The independent person, who had gone to the place of occurrence for collecting the samples, has also stated in very clear terms that from the particular place debris have been removed by the concerned authority.
11. Learned Senior Advocate Mr. Lakhani submits that if evidence of all the witnesses are to be read together in juxtaposition, in that event, it would be found out that at the time of assigning reasons and reaching to a particular conclusion, learned Judge has used the guesswork and solely on the basis of surmises and conjectures the evidence available on record is moulded in particular manner and passed the order of conviction. Therefore, the said order is required to be quashed and set aside.
12. Learned Senior Advocate Mr. Lakhani further submits that the incident of earthquake occurred on 26.01.2001 in morning time on Sunday and the impact of the earthquake was so severe that number of villages in Kachchh District have been totally destroyed and even the Kachchh District was disconnected from the rest of the parts of State of Gujarat for limited hours. This is the incident of Page 12 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined natural calamity and effect of earthquake is not within the control of human being therefore it can safely be said that the said incident would be called as an 'Act of God'. The epicenter of the earthquake was reported to be near Rapar, which is in Kachchh District and the magnitude of the earthquake was 8.1 Richter Scale, which was of a very high intensity, and due to the impact of the said earthquake, number of Government buildings including Court, Collectorate, Civil Hospital, Police Stations and various other non-governmental and private buildings have been collapsed and not a single complaint has been registered against anyone. Therefore, it seems that present FIR is filed with some ulterior motive and hence the impugned judgment and order of conviction passed against the appellants is required to be quashed and set aside.
13. Learned Senior Advocate Mr. Lakhani further submits that it is an admitted position of fact that appellants have complied with all terms and conditions imposed by various Government Authorities at the time of giving permission to construct the said apartments and after completion of work of construction, they have applied for Building Use permission before the competent authority and the said authority, after examining and inspecting the quality of construction work, granted BU permission to the appellants. Therefore, by no stretch of imagination, it can be held that material of inferior Page 13 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined quality was used and utilized by the appellants at the time of constructing the said buildings. Learned Senior Advocate Mr. Lakhani submits that if the appellants had used inferior quality of cement, iron rods and other construction materials at the time of construction of the buildings in question, in that event, at the time of inspection, the inspecting authority might not have given BU permission.
14. Learned Senior Advocate Mr. Lakhani further submits that at the time of appreciating and evaluating the material available on record, the learned Judge has given undue emphasis upon unimportant, irrelevant and unessential documents, whereas the evidences available on record has not been considered and appreciated in its true spirit and proper perspective and failed to analyse the factual and legal position in proper perspective and has kept out of consideration relevant matters and drawn the presumptuous conclusion and therefore the impugned judgment and order is required to be quashed and set aside.
15. Learned Senior Advocate Mr. Lakhani further submits that at the time of assigning reasons, the learned Judge has struck a balance between the evidence available on record by specifically observing that the Prosecution Witness No. 9 has given his deposition with a sole intent to support the appellants accused. Therefore, his deposition has Page 14 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined not been considered, despite the fact that said witness has supported the case of the prosecution. Not only that, the said witness has not been declared as hostile. Therefore, whatever evidence available on record is required to be read in toto and if defence would put reliance upon the evidence of that witness, it would be binding to the prosecution. Learned Senior Advocate Mr. Lakhani submits that effect of the evidence of that witness is defaced by observing that the evidence of other witnesses is quite contrary to the evidence of the said witness. Therefore, the evidence of that witness could not have been considered. The said view adopted by the learned Judge is incorrect and not in consonance with the settled proposition of law.
16. Learned Senior Advocate Mr. Lakhani has put reliance upon the case law of Hon'ble Apex Court in the case of Nitinchandra Somnath Raval v. State of Gujarat & Ors., reported in (2019) 14 SCC 676 and submitted that for the sake of argument, even if the case of the prosecution is believed that the samples taken and analysed were of the buildings in question, in that event also it is an admitted fact that the sample which was drawn was of a small portion of one column/beam out of large number of columns/beams and even if the opinion of the expert is that these samples are of sub-standard, that can not lead to an inference that entire beam or all beams as well as entire column or all columns were of sub-standard.
Page 15 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined Thus, the impugned judgment and order of conviction may be quashed and set aside.
17. Learned advocate Mr. Divyesh Sejpal appearing for appellant of Criminal Appeal No.1007 of 2007 submits that present appeal is preferred by one of the witnesses. He submits that during the course of investigation, the appellant has carried out certain works and accordingly his statement was recorded by the Investigating Officer. It is the specific case of the appellant before the Court concerned that on the date of incident he had gone along with other officers of various Government Departments to collect the samples from the place of occurrence and at that point of time, being a Police Constable, he had carried out photography and videography of the place of occurrence. After completion of said work, he has handed over the said material to the investigating officer and later on statement in that regard is recorded by the investigating officer. The said statement is part and parcel of the record. Learned advocate Mr. Sejpal further submits that during the course of recording the evidence of the said witness he has deposed as per the act and action done by him at the time of investigation. It is specifically stated in his statement itself that at the place of occurrence, the muddamal articles were not found available and photography as well as videography of that area was recorded. The said witness was cross- examined by the defence by asking a specific question Page 16 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined that on the date when sample was collected nothing was found at the place of occurrence and he has replied it in affirmative and except that no any other question was asked to him. The role of the appellant is that he has to carry out certain work assigned to him as a Government employee. Admittedly, he had carried out the said work and handed over all those materials to the investigating officer. At the time of submission of charge-sheet before the concerned Court, all those materials are required to be sent to the office of Public Prosecutor by the Incestigating Officer along with charge-sheet papers, who in turn, has to tender those materials on record before the Court of law at the time of recording the evidences of the witnesses. The role of the present appellant is very limited. Therefore, liability of not bringing all those materials on record could not be fastened on the head of the present appellant. At the time of appreciating and evaluating the material available on record, learned Judge has thought it fit to initiate proceedings against the present appellant accused and therefore the learned Judge has, in exercise of powers under Section 340 read with Section 195 of the Cr.P.C., given specific direction to the Court Shirastedar of that Court to register a criminal complaint against the present appellant for the offence punishable under Sections 191, 193, 199, 200 and 201 of the Indian Penal Code before the Court of learned Chief Judicial Magistrate, Gandhidham- Kachchh. Being aggrieved by and dissatisfied with the Page 17 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined said judgment and order passed by the Court concerned, present appeal is preferred by one of the witnesses of the prosecution.
18. Learned advocate Mr. Sejpal further submits that being a public servant, appellant is duty bound to act as per the dictum and direction given by the higher-ups. Not only that after completion of the said work, he has to inform to the higher officer and accordingly higher officer has to reduce into writing the said work carried out by the appellant. The appellant has deposed in very categoric terms as per the act he has carried out. By no stretch of imagination it can be said that the appellant has exceeded his limit and with a sole intent to support the accused persons, he has deposed in a particular manner. If the deposition of the appellant is read into toto, in that event, it would be found out that not a single piece of evidence is led by the appellant in favour of the accused persons. Even though at the time of appreciating and evaluating the evidence available on record, without issuing any show cause notice to the appellant, by violating the principle of natural justice, straight way the caustic observations were made by the learned Judge against the present appellant and direction was given to the employee of the Court to register a complaint against the appellant herein. Therefore, appellant has no other option left but to approach before this Court by way of preferring present appeal. Learned Page 18 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined advocate Mr. Sejpal submits that during the pendency of the present appeal, this Hon'ble Court has stayed the proceedings ordered to be instituted against the present appellant by the learned Trial Court. He has read the deposition of that witness and submitted that as per the prosecution witness with a sole intent to prove the guilt of the accused, the appellant has deposed and narrated entire sequence of events of incident in very factual manner. Therefore, proceedings ordered to be instituted against the present appellant accused are required to be quashed and set aside as there is no direct or indirect nexus found out between the appellant and accused persons and the impugned judgment and order is passed by the learned Trial Court solely on the basis of presumptions, assumptions, surmises and conjectures by connecting the dots without any fundamental work and solid basis. He, therefore, submits that impugned judgment and order passed by the learned Trial Court may be quashed and set aside qua the appellant.
19. Learned APP Mr. Soaham Joshi has read the evidences of prosecution witnesses and submitted that the learned Trial Court has not committed any error while passing the judgment and order of conviction and therefore this Court may not interfere with the said order. He further submits that the learned Trial Court has, after appreciating and evaluating the oral as well as documentary evidences available on record, passed the judgment and order of conviction Page 19 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined convicting the appellants accused persons for the offence punishable under Sections 304 Part-II, 337 and 338 of the Indian Penal Code and therefore the present appeals being devoid of merit may be dismissed. Learned APP Mr. Joshi submits that the evidences of all the prosecution witnesses are in consonance with each other which ultimately led to passing of the impugned judgment and order of conviction. At the time of passing the impugned judgment and order of conviction, the learned Trial Court could not have committed any error either of law and/or facts and the impugned judgment and order passed by the learned Trial Court is just, proper and based upon the sound principle of law and therefore, this Court may not interfere with the said order.
20. I have heard the learned advocates appearing for the parties. I have also gone through the material placed on record. It is found out from the record that on 26.01.2001, due to the incident of devastating earthquake, the Keval, Kinnar and Kinjal complexes have collapsed, wherein total 89 persons have lost their valuable lives. The said buildings were constructed by the appellants. Therefore, FIR came to be registered against the accused persons for the offence punishable under Sections 304, 337, 338, 120B of the Indian Penal Code and under Sections 3(2)
(c)B, 7(1)(i)(2) and 42 of the Gujarat Flat Ownership Act. Pursuant to the registration of the FIR, the investigating officer has collected evidences against Page 20 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined the accused persons. It is alleged that the said buildings were collapsed as the appellants have used inferior quality of materials for construction of the said buildings and therefore they were not sustained in the earthquake. Moreover, the construction had not been carried out as per the plan and designed approved by the concerned Authority. After appreciating and evaluating the oral as well as documentary evidence, the learned Trial Court has passed the impugned judgment and order of conviction against the applicants. Being aggrieved by and dissatisfied with the said judgment and order of conviction, present appeal is preferred by the appellants.
21. To prove the charges levelled against the appellants accused persons, the prosecution has examined total 20 witnesses. Complainant Shambubhai Naranji Thakkar had been examined as a Prosecution Witness No.1 vide Exh.27. The said witness has deposed that he has purchased the flat from one Mr. P. C. Mehta at Rs.2,80,000/-. He further deposed that on the fateful day of incident, along with the buildings in question, so many other houses were also collapsed. In the said incident, his wife viz. Shardaben, his grand-daughters viz. Krupali, Twinkle and Lavina and his daughter-in-law viz. Rashmi died. He has also deposed that the buildings in question were collapsed on account of devastating earthquake and he did not know any other specific reasons why Page 21 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined the buildings were collapsed. The said witness has not supported the case of the prosecution and therefore he has been declared as hostile.
22. The prosecution has also examined Panch Witnesses viz. Bhupatbhai Girdharbhai Chavda - PW 2 vide Exh. 30, Hardevsinh Mulrajsinh Chavda - PW 3 vide Exh. 33, Chandulal Deepaklal Aswani - PW 4 vide Exh.34, Prakash Keshavji - PW 5 vide Exh.36, Ravindranath Girdhari Dubey - PW 6 vide Exh. 37, Kishorbhai Jayrambhai Joshi - PW 7 vide Exh.39, Shailesh Parmanand Joshi - PW 8 vide Exh.41. All those Panch Witnesses have not supported the case of the prosecution and therefore they have been declared as hostile.
23. The prosecution has also examined one Mr. Sunil Prabhudas Sarvaiya as PW 9 vide Exh.43. The said witness has carried out the photography and videography of the place of occurrence. He deposed that at that relevant point of time when he had gone to the place of occurrence for the purpose of photography and videography, the debris have already been removed. He also deposed that he had gone to the place of occurrence along with other officers of various other departments. His statement was also recorded by the police. He also deposed that as the debris were removed from the place of occurrence, samples were not taken.
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24. The prosecution has also examined Jagdishchandra Bachulal Patel as PW 10 vide Exh.49. The said witness was serving as FSL officer in the D.S.P. office, Bhuj. He received vardhi on 06.03.2001 and therefore, he came to Gandhidham Police Station on 07.03.2001. Thereafter, he along with staff members of Public Works Department and staff members of police had gone to the place of occurrence and they came to know from the local residents regarding the site of Kinjal Apartment (one of the buildings in question). Thereafter, the officer of PWD took the samples of beam, column and slab by cutting them with cutter. Thereafter, on 08.03.2001, he had gone to the site of Kinnar Apartment along with team members of Public Works Department and police staff. They identified the site from the residents of surrounding area. Thereafter, the officer of Public Works Department had taken the samples of beam, column and ceiling. The said witness has been cross-examined by the defence. He has admitted that due to earthquake, the houses adjacent to the buildings in question have also been collapsed and he cannot say that the debris of nearby houses were also collected and placed at the place of occurrence or not. In reply to a question put by the defence that the persons who have identified the site in question were local residents or not, the said witness has stated that he cannot say that the persons who have identified the site in question were local residents of the area.
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25. The prosecution has also examined one Mr. Bhuva Dhirajlal Mohanlal as PW 11 vide Exh. 47. In the examination-in-chief, the said witness has stated that due to the earthquake, he and Executive Engineer Mr. Satishkumar Shah had got instructions to check the quality of material used in the constructions of buildings in question and to send the samples to Vadodara office. Therefore, in the first week of March, 2003, he along with Mr. Shah, one Mr. Jayentibhai Patel - Engineer of Vadodara, Shri Jagdishbhai Patel - officer from Forensic Science Laboratory, one Anwarbhai - photographer from the office of D.S.P., Bhuj came at Gandhidham. Thereafter, they went to the site of Keval Apartment. However, as the debris have been removed, no samples were taken from that site. Thereafter, they went to the site of Kinnar Apartment and from there they had taken samples of beam, column and slab for the purpose of quality check and thereafter they went to the site of Kinjal Apartment and from there they had taken samples. However, he does not remember which kind of samples they have taken. The said witness has been cross-examined by the defence. In his cross- examination, he admitted that the samples were taken with the help of JCB machine.
26. The prosecution has also examined Amit Shri Ramsuresh Trivedi as PW 12 vide Exh. 56/C. The said witness has stated in his examination-in-chief that he has been serving in National Council for Cement Page 24 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined and Building Material, Vallabhgadh, Hariyana since last 6 years. He is Deputy Manager. He deposed that in the test report, they have to inform about the quality of the samples drawn. The samples of collapsed buildings in question have been sent along with questionnaires to them and they have to send test report accordingly. So far as the samples of Kinjal Apartment are concerned, he has stated that the grade of concrete was found to be unsatisfactory, whereas the iron rod and hook (the size of the iron rods to be kept outside of the concrete structure of beam/column) were found to be satisfactory. So far as beam is concerned, the grade of concrete was found to be unsatisfactory. He has further stated that the size of end of the hook (i.e. the size of the iron rod to be kept outside of the concrete structure of beam) is also prescribed which is 8 times more than the thickness of the iron rod installed. Thus, when 6 mm thick iron rods were used for construction of beams then the size of the iron rods to be kept outside of the concrete structure of beam should be of 48 mm. So far as the slab is concerned, the grade of concrete used was found to be satisfactory. The said witness has been cross-examined by the prosecution. He has stated that in case of collapse of multi-storied building, the strength of the concrete used in the beam and column can be changed on account of development of micro-cracks and therefore in that event it would be difficult to give perfect opinion of strength of concrete used in the Page 25 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined construction of a building. He has stated that it is true that procedure for samples collection is prescribed. He has also admitted that there is possibility of different opinion in case if the samples were taken with the help of JCB machines. Lastly, he has stated that it is true that by checking the samples only, perfect opinion of quality of construction of a building is not possible.
27. Now, if the reasons assigned by the learned Trial Court are considered in light of the aforesaid evidences of prosecution witnesses, in that event, it would be found out that the learned Trial Court has misinterpreted the deposition given by PW.12. The said witness has very categorically deposed that when 6 mm thick iron rods are used for construction of beams then the size of the iron rods to be kept outside of the concrete structure of beam should be of 48 mm. However, the learned Judge has observed that instead of 48 mm thick iron rods, the appellants have used 6 mm iron rods, due to which, the buildings in question were collapsed in the earthquake and 89 innocent persons have lost their lives. The said interpretation made by the learned Trial Court is erroneous. It is also found out from the evidence of the aforesaid prosecution witness that in case of collapse of a multi-storied building, the strength of the concrete used in the beam and column can be changed on account of development of micro-cracks. The PW 11, in his cross-examination has admitted the Page 26 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined fact that they have collected the samples with the help of JCB Machine. The PW 12 has also admitted that there is possibility of different opinion in case if the samples were taken with the help of JCB machines. Thus, in short, as per the opinion of expert, if the samples were drawn with the help of heavy machine like JCB, then the quality of the samples can be changed. Moreover, as per the opinion of expert - PW 12, merely through sample check, perfect opinion of quality of materials used in construction of a building is not possible.
28. Now, before adverting to the issue involved in the matter, I would like to refer to the case law of Hon'ble Apex Court in the case of Nitinchandra Somnath Raval (supra), wherein the Hon'ble Apex Court has observed as under:
"Admittedly, the appellant does not seek to bring the case in the first part. His contention is that knowledge can be attributed to the accused persons that the construction in question which was sub- standard in nature is likely to cause death when earthquake of this magnitude occurs as that would result in the collapse of the building. It is difficult to accept this contention. In the first place, as noted above, earthquake at the Richter scale of 7.7 had hit the city of Ahmedabad. This was of a very high intensity. Not only this the earthquake engulfed almost the entire State of Gujarat which was a severe calamity. Secondly, out of four towers erected by the accused persons only one tower had collapsed.Page 27 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024
NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined Thirdly, it is not only this tower of the building in question but almost 12 such buildings collapsed in Ahemdabad. In all other cases, no charge under Section 304 has been framed, as noted above. In the judgment rendered by the High Court in other cases, the High Court had discussed the law relating to Section 304 Part II IPC in detail and has also taken note of the judgment of this Court in "Keshub Mahinder vs. State of M.P. (1996) 6 SCC 129, (which is also popularly known as Bhopal Gas Tragedy case). The following observations from the said judgment are reproduced:
"19. The learned Senior Counsel for the appellant-accused on the other had submitted that even if taking the material available on record at the stage on its face value the short question is whether any charge could have been framed against the accused under Section 304 Part- II IPC with our without the aid of Section 35 IPC and even for that matter any charges could have been framed under Sections 326, 324 or 429 with or without the aid of Section 35 IPC. We may at once state that both the learned Sessions Judge as well as the High Court have taken the view on the aforesaid material that a prima facie case has been made out by the prosecution requiring the accused to face the aforesaid charges and the trial of the accused on these charges can not be cut short or nipped in the bud in the light of the aforesaid material which has to be accepted as prima facie true and reliable at this preliminary stage of framing of charges.
20. It, therefore, becomes necessary for us now to address ourselves on this moot question. As noted earlier the main charge Page 28 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined framed against all the accused is under Section 304 Part II IPC. So far as Accused 2,3, 4 and 12 are concerned, they are also charged with offences under Sections 326, 324 IPC and 429 IPC read with Section 35 IPC while Accused 5 to 9 are charged substantially with these offences also. We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned 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 likely to cause death the charged offences would fall under Section 304 Part II. However, before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part in the interest of justice would get out of the picture. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays downs that :-
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is Page 29 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that ere act of running a Plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective Plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored Page 30 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently, in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the Police Station Hanumanganj, Bhopal as Case No. 1104 of 1984 it was registered under Section 304-A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge under Section 304 Part-II. In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by the learned Senior Counsel, Shri Rajendra Singh for the appellants. In the case of Adam Ali Taluqdar v. King-Emperor a Division Bench of the Calcutta High Court made the following pertinent observations which interpreting Section 304 Part-II read with Section 34 IPC:
"Although to constitute an offence under Section 304, Part 2, there must be no intention of causing death or such injury as Page 31 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined the offender knew as likely to cause death, there must still be a common intention to do an action with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention to causing death, yet they may certainly have the common intention to do that act and therefore Section 34 can apply to a case under Section 304, Part 2."
Once we reach the conclusion that the material produced by the prosecution before the trial court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part-II against the accused concerned on such material.
Method of evaluation of quality of the material individually and jointly used is also likely to be brought under close scrutiny and has to be decided by experts and in such a situation how a person can be prosecuted for a serious offence punishable under section 304 of IPC, is the question posed. While appreciating this submission, observations made in the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and Ors.(AIR 1990 SC 1962), needs consideration. It is observed therein that the Court while framing charge or dealing with an application preferred under Section 227 of CrPC, can do some exercise to evaluate the material and documents available on record. The Apex Court, in the cited decision, after referring to the observations made in one earlier decision (AIR 1980 SC 52), has observed that:-
Page 32 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
It has been rightly argued by ld. Counsel appearing for the petitioner/s that sample which was drawn was of a small portion of one column out of large number of columns. Similarly, the sample of beam which was drawn was of a small portion of one beam out of large number of beams. Even if the opinion of the expert is that these samples are of sub- standard, that can not lead to an inference that entire beam or all beams as well as entire column or all columns were of sub-standard. He has also rightly submitted that there is no evidence on record as to the cause of collapse of building.
One more argument is advanced by ld. Counsel Mr. Raju can not be ignored by this Court viz. when the accused have been asked to face charge of a serious offence, before earthquake of 26.01.2001, the Ahmedabad Municipal Corporation had different standards in approving plans of construction and AMC being a local self government, has now changed the standards. But the day on which the apartment in question was erected, the construction was made as per the norms applied by the MC and, therefore only, the occupiers were permitted to use the building. Suppose for the sake of arguments it is accepted that construction was not as per the contract between the apartment holders and Page 33 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined the developer/ contractor and breach of contract made by the developer was noticed by anybody including the occupiers who lost their lives, but that by itself can not be equated with the knowledge or intention within the meaning of Section 299 of IPC."
29. Thus, in view of the aforesaid observations made by the Hon'ble Apex Court, learned Senior Advocate Mr. Lakhani is right in contending that sample which was drawn was of a small portion of one column out of large number of columns. Similarly, the sample of beam which was drawn was of a small portion of one beam out of large number of beams. Even if the opinion of the expert is that these samples are of sub-standard, that can not lead to an inference that entire beam or all beams as well as entire column or all columns were of sub-standard. He has also rightly submitted that there is no evidence on record as to the cause of collapse of building. Moreover, the aforesaid decision of the Hon'ble Apex Court is in relation to collapse of a building during the same period of earthquake and in the said case the magnitude of the earthquake was reported to be of 7.7 Richter Scale, whereas in the case on hand the magnitude of the earthquake was 8.1 Richter Scale. In the aforesaid case, the Hon'ble Apex Court has specifically held that it is difficult to accept the submissions of the appellant that charge under Section 304 is made out.Page 34 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024
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30. The incident of earthquake occurred on 26.01.2001 in morning time on Sunday and the impact of the earthquake was so severe that number of villages in Kachchh District have been totally destroyed and even connection of the Kachchh District was disconnected with the rest of the world for few hours. The epicenter of the earthquake was reported to be near Rapar, which is in Kachchh District and the magnitude of the earthquake was 8.1 Richter Scale, which was of a very high intensity, and due to the impact of the said earthquake, number of Government buildings including Court, Collectorate, Civil Hospital, Police Stations, etc. have been collapsed. However, not a single FIR has been registered for those instances of natural calamity. The casualty would have been more if the timing of the earthquake was during office hours. Moreover, it appears from the record that prosecution has failed to bring on record by way of leading cogent and reliable evidence as to who has given the instructions to collect the samples of the buildings in question and also failed to examine the persons who have identified the sites in question. It is pertinent to note that as observed earlier, due to earthquake, so many buildings including Government buildings in the State of Gujarat have been collapsed and nearby the area of the buildings in question, so many other buildings and houses have been collapsed and so many persons have lost their valuable lives.
31. So far as Criminal Appeal No.1007 of 2007 is Page 35 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined concerned, the role of the appellant is that he has to carry out certain work assigned to him as a Government employee. Admittedly, he had carried out the said work and handed over all those materials to the investigating officer. It is the case of the appellant that at the time of submission of charge- sheet before the concerned Court, all those materials are required to be sent to the office of Public Prosecutor by the Investigating Officer along with charge-sheet papers, who in turn, has to tender those materials on record before the Court of law at the time of recording the evidence of the witnesses. Thus, the role of the present appellant is very limited. Therefore, liability of not bringing all those materials on record could not be fastened on the head of the present appellant. At the time of appreciating and evaluating the material available on record, the learned Judge has thought it fit to initiate proceedings against the present appellant accused and therefore the learned Judge has, in exercise of powers under Section 340 read with Section 195 of the Cr.P.C., given specific direction to the Shirastedar of that Court to register a criminal complaint against the present appellant for the offence punishable under Sections 191, 193, 199, 200 and 201 of the Indian Penal Code before the Court of learned Chief Judicial Magistrate, Gandhidham- Kachchh. However, if the depositions of various prosecution witnesses along with other documentary evidences are to be re-appreciated and re-evaluated, Page 36 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024 NEUTRAL CITATION R/CR.A/1007/2007 CAV JUDGMENT DATED: 04/07/2024 undefined in that event, it is very difficult to accept that charge under Section 304 of the IPC is made out against the appellants of Criminal Appeal No.973 of 2007 - accused persons and the appellant of Criminal Appeal No.1007 of 2007 has acted in a particular manner to support the appellants accused. Thus, in the opinion of this Court, the learned Judge has committed an error while passing the impugned judgment and order of conviction against the appellants and directing the Shirastedar of that Court to register a criminal complaint against the appellant of Criminal Appeal No.1007 of 2007 for the offence punishable under Sections 191, 193, 199, 200 and 201 of the Indian Penal Code.
32. In view of the aforesaid discussions, the appeals are allowed. The impugned judgment and order dated 17.07.2007 passed by learned Additional Sessions Judge, Gandhidham - Kachchh in Sessions Case No.36 of 2002 is hereby quashed and set aside. Accordingly, the appellants are acquitted from the charges levelled against them. The bail bond shall stand cancelled.
R & P be sent back to the learned Trial Court forthwith.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 37 of 37 Downloaded on : Thu Jul 04 21:04:54 IST 2024