(2012) 241 KLR 450 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933 Crl.MC.No. 3856 of 2011 ( ) -------------------------------- AGAINST THE ORDER/JUDGMENT IN WPC.34540/2007 DATED 30-05-2008 SC.178/2010 of ADDL.DISTRICT COURT (ADHOC), KOTTAYAM ................ PETITIONER(S)/ACCUED 1 TO 4 & 6: ------------------------------------------- 1. KUMAR, AGED 27 YEARS, S/O.LAKSHMANAN, MANJATHOTTATH VILAYIL HOUSE, PARAKKUNNU VANNIYUR P.O., MALAYADI THALUK, KANYAKUMARI DIST. TAMIL NADU. 2. DAS, S/O.PATHAN, AGED 46 YEARS, KARAKKAD VEEDU, PARAKKUNNU, VANNIYUR P.O.,MALAYADI TALUK, KANYAKUMARI DIST., TAMIL NADU. 3. MANIYAN, AGED 26 YEARS, S/O.CHELLAYYAN, PUTHUVEL KARAKKAD VEEDU, PARAKKUNNU BHAGAM, VANNIYUR P.O., MALAYADI TALUK, KANYAKUMARI DIST., TAMIL NADU. 4. KRISHNAN, AGED 26 YEARS,S/O.THANKARAJ, NO.2479/C, KOTTAKKAD VILAI VEEDU, MARTHANDOM P.O., KULATHARA MUNICIPALITY, WART NO.XI, KANYAKUMARI DIST., TAMIL NADU. 5. PADMANABHAN NAIR, AGED 63 YEARS, S/O.PADMANABHA KUTTY NAIR, SREE BHAVAN CHOZHIYAKKADU, CHANNANIKKADU P.O., KOTTAYAM. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENT/STATE: ------------------------- 1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.218/CR/KTM/2007 ORIGINALLY REGISTERED AS CRIME NO.775/2007 OF KOTTAYAM WEST POLICE STATION, KOTTAYAM DISTRICT). BY BY PUBLIC PROSECUTOR SMT. V.H. JASMINE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 31-01-2012, ALONG WITH CRMC. 4249/2011, OPCR. 3681/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs CRMC. NO. 3856/2011 APPENDIX PETITIONER'S ANNEXURES:
RESPONDENT'S ANNEXURES:
/TRUE COPY/ P.A. TO JUDGE. svs N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. Nos: 3856 & 4249 OF 2011 & O.P. (Crl) No: 3681/2011 ------------------------------------------ Dated this the 31st day of January, 2012 Head Note:- Indian Penal Code, 1860 - Section 304A r/w 34 - Bricks fell down while so lifted through the temporary hoist lift - two nuns died in that incident because of the fatal injury sustained on their heads. Held, Sufficient materials have been placed before Court to prove the rash and negligent act on the part of the contractor, the supervisors and other persons who were directly responsible for the acts complained of. But at the same time merely because some of the accused happened to be partners of the firm, which owns the land, who had entrusted the construction work to the contractor, they cannot be held vicariously liable for the offences committed by other accused persons who were in charge of the construction work. Indian Penal Code, 1860 - Sections 304 Part II - the materials placed by the prosecution must prima facie show that the accused is guilty of culpable homicide. The materials made available would only show that the contractor and other persons, who were directly responsible for the construction and for the lifting of building materials using such temporary hoist lift, did not take reasonable care by providing protective measures or nets to prevent fall of bricks and other materials while being lifted. But the required knowledge of the likelihood of causing such bodily injuries resulting in the death of the person underneath cannot be attributed and as such, charge under section 304 (Part II) cannot be sustained. But there are materials to frame charge for the offence under section 304A of IPC. Held, The charge framed under section 304(Part II) IPC is set aside. Instead, charge shall be framed for offence under section 304A r/w 34 IPC against A1 to A4, A5, A6 and A10. Indian Penal Code, 1860 - Sections 468, 471 and 203 r/w 34 - A7, A8 and A9, were only partners. They were not actually present at the site. Hence, they cannot be charged for the offence under section 304A of IPC. But proceeding against them cannot be totally quashed in view of the fact that there is a specific charge that A5 to A9 conjointly forged an agreement to make it appear that it was one 'A.Selvaraj' who was the contractor. On investigation it was found that 'A. Selvaraj', shown in the agreement is only a fictitious person. There is also allegation that A5 and A9 have used such a forged document knowing it to be forged. Whether the allegations are true or not are matters to be decided at the trial based on the evidence that may be adduced. Therefore, A5 to A9 would be liable to be tried for offences under sections 468, 471 and 203 of IPC r/w 34 IPC and as such the contention that the charge framed against them for those offences cannot be sustained is bereft of any merit. O R D E R Accused nos. 1 to 4 and 6 are the petitioners in Cr.M.C.No:3856/2011. Accused no.9 therein, is the petitioner in Cr.M.C. No:4249/2011. Accused nos. 5, 7, 8 and 10 in that case are petitioners in O.P.(Crl) No:3681/2011. The firm 'M/s. Malayalam Builders' had purchased a partly constructed multi storied building. A7 to A9 are partners of that firm. An incident took place at the construction site on 21.10.2007, which resulted in the death of two nuns who were residents of the convent situated just adjacent to the compound where construction was being done. Bricks were being lifted by hoist lift without providing protective measures/nets to prevent fall of bricks and other materials while being hoisted/lifted. While bricks were being lifted through the hoist lift some bricks fell down. It fell on the heads of the two nuns causing fatal injuries to which those two nuns succumbed. A crime was registered against ten accused persons alleging offence under section 304 IPC. After conducting investigation charge sheet was laid against them alleging commission of offenses punishable under sections 304 IPC and also under sections 468, 471, 201 and 203 r/w 34 IPC. 2. The prosecution contends that accused persons had the knowledge while the bricks were being lifted/hoisted without providing protective covers or nets, that bricks and other articles are likely to fall and cause fatal injury to persons underneath and near by. A1 to A4 in the aforesaid case were workers. A5 was the contractor. He is the husband of A7, one of the partners. A6 was the supervisor for the construction. A10 is the husband of A8. A8 is one of the partners of the firm that was constructing the building. 3. According to the petitioners it was purely an accident and that there was no intention or knowledge to attract the offence punishable under section 304 IPC. It cannot be said that the accused persons, all or any of them had the knowledge that the bricks would fall on the head of the persons underneath or nearby, resulting in fatal injuries and that death would be caused by the falling of the bricks or any such materials. If no such knowledge or intention can be attributed then the offence cannot be culpable homicide, the petitioners contend. 4. An application was filed before the learned Sessions Judge for discharge under section 227 of Cr.P.C. It was argued before this Court and also before Sessions Court that though initially the parties had alleged that there was knowledge on the part of the accused, later they realised the real fact and settled the entire issue for which the accused relied upon a deed of settlement. That deed of settlement was pressed into service before this Court also. It is inconceivable how the parties (parties to the agreement/settlement) can enter into a settlement when two persons had died in the incident. Even the legal heirs of the deceased cannot enter into an agreement to stifle the prosecution. The fact that some of the parties interested had received the money from the contractors is no reason to rely upon that agreement to hold that the charge laid against the accused cannot be sustained. Since the object or consideration is unlawful it is hit by section 23 of the Contract Act. It has to be simply brushed aside from consideration. Criminal liability in such cases will not be wiped out by payment of money. Nor can such payment of money be allowed to deflect the course or cause of justice. Therefore, the argument based on that ground is rejected. 5. It was argued on behalf of the prosecution that the accused persons had the knowledge that death was likely to be caused as materials were likely to fall when lifted using the hoist-lift. It was pointed that the convent authorities had warned the persons responsible for the construction by filing petitions before the Municipality, PWD etc, expressing their apprehension regarding the danger caused or likely to be caused by the act of the accused persons. Therefore, according to the prosecution, when, despite that complaint, the accused proceeded with the work without taking any reasonable care or precaution against the possible danger, then knowledge must certainly be imputed, in which case the offence would fall under section 304 of IPC itself. 6. In the complaint filed by the Sister Superior of the Convent, it was stated that some building materials had fallen into the courtyard of the convent and as such the persons responsible for the construction of the building cannot feign ignorance. It is argued that a person should be presumed to have the knowledge of the consequences which are likely to ensue in the normal course of event. It is also argued that there is rational nexus between the offending act and consequence which ensued therefrom. 7. It was contended by the prosecution that the copies of the complaints sent by the convent authorities to PW2 and to the Town Planner, Municipal Commissioner etc were seized by the Investigating Officer. That is a circumstance strongly relied upon by the prosecution to contend that the accused persons should be imputed with the knowledge of the consequences of falling of bricks or other building materials into the compound of the convent which was abutting the building site. 8. It was also argued on behalf of the prosecution that at the time of considering the petition filed under section 227 of Cr.P.C., the Court is not expected to embark upon a roving enquiry into the pros and cons of the evidence that is to be adduced by the prosecution to prove the allegations mentioned in the charge. According to the prosecution, if the allegations mentioned in the charge, if un-rebutted would warrant a conviction, then charge has to be framed against the accused for the offences which are prima facie disclosed from the materials produced before the Court. 9. The learned counsel for the accused would submit that the gravamen of the charge is that the accused have not taken reasonable care to provide protection covers or nets or put up safety measures so as to avoid bricks and other building materials falling in to the next compound or even underneath the building under construction. That, according to the defence would, if at all, be an act of culpable negligence of the accused persons responsible for the construction and it can never be said that those persons had the required knowledge that death was likely to be caused by their act. 10. It was also contended by the prosecution that accused nos 5 to 9 had created bogus agreement in the name of one 'Selvaraj', a ficticious person, to escape from the penal consequences. The attempt was to put up a fictitious person as the contractor so as to enable the actual contractor to escape from the penal provisions. It is pertinent to note that sections 468 and 471 of IPC have also been incorporated in the charge. The charge sheet laid by the police would show that the 5th accused was the contractor and that A6 and A10 were the supervisors of the work, who were actually and directly supervising the construction work. 11. It was alleged that there was sufficient space on the other side of the building (under construction) to put up a temporary lift. But, instead of that, the temporary lift was constructed on the northern side of the building which was just abutting the compound of Fathima Matha Convent, which was just 71 cm away from the boundary wall. It was alleged that without taking any precautionary/protective measures, the temporary lift was put up and the concrete blocks, bricks etc were lifted using that temporary hoist lift without providing nets to avoid falling of such materials causing danger to the persons underneath or in the nearby compound of the Convent. 12. The learned Additional Advocate General submits that even if there is no actual intention to do a particular kind of harm to the victims, there was recklessness on the part of the accused, which in the circumstances of the case, especially in view of the fact that Sister Superior had sent complaints to the police officers and others pointing out the possible danger to be caused by fall of bricks and other materials would be sufficient to attribute the required knowledge. In that complaint it was pointed out that on earlier occasions also some materials had fallen down into the compound of the convent. Hence, the accused should be imputed with the knowledge of the consequences, the learned Additional Advocate General submits. The consequences of that reckless act should have been foreseen by the accused in the peculiar circumstances of the case and as such, it is argued that the materials on record are sufficient to put the accused to trial for offence under section 304 of I.P.C. 13. In support of that submission the learned Additional Advocate General has relied upon the decision of the Queen's Bench Division in REGINA V. CUNNIGHAM [1957] 2 Q.B. pg.396. There it was held: "In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word "maliciously" in the context of section 23, would without doubt have convicted." But this submission has been strongly resisted by the learned counsel appearing for the accused. That decision was rendered interpreting the word "malicious" in the statutory offence and not the ingredients of culpable homicide coming under section 299 of IPC. The word 'knowledge' occurring in clause second of Section 300 of IPC imports some kind of certainty and not a mere probability. There is no dispute regarding the fact that the petitioners had no intention to cause such bodily injury as they knew it to be likely to cause death of the two nuns. The allegations made in the charge sheet and the statements of the witnesses produced by the prosecution would, if accepted as a whole, according to the accused, only show a reckless act depicting culpable negligence and not a case where the accused could be imputed with the knowledge that such bodily injuries as are likely to cause the death of the nuns or any person in that compound would be caused, and as such the act complained of would attract only an offence under section 304A of IPC. 14. A person commits culpable homicide if the act by which the death is caused is done: (i) with the intention of causing death: (ii) with the intention of causing such bodily injury as is likely to cause death: or (iii) with the knowledge that the act is likely to cause death. Even according to the prosecution the clauses firstly and secondly mentioned above are not attracted in this case. But according to the prosecution clause thirdly would certainly come into play. 15. The learned counsel for the petitioners has relied upon the decision of the Delhi High Court in BALDEV RAJ KAPUR V. STATE 2009 CriLJ 1418. This decision was mainly relied upon by the petitioners to fortify the submission that so far as the accused persons, who were actually not present at the spot when the unfortunate incident happened, are concerned, no knowledge can be imputed at all. That was a case where a four storied building which was under construction collapsed resulting in the death of six labourers and grievous injuries to eight labourers. Since the accused therein, was not present at the spot it was argued that there was no direct nexus with the different stages of construction and the ultimate collapse of the building so as to hold that the petitioners therein, could be imputed with the required knowledge. There also it was argued before the trial Court that it was incumbent upon the part of accused no:1 therein, to have ensured by giving proper instructions to the contractor and to have taken precautionary steps in strict compliance thereon, so that the construction would not cause hardship or any tragic incident and thus the accused no:1 had enough knowledge about the impending dangers. 16. The trial Court in that case found that there was prima facie case against the accused and hence charge was framed under section 304 (Part II) of IPC. It was held in that decision that under section 304(Part II) of IPC, the degree of knowledge required is knowledge of the likelihood of death for which the prosecution has to show prima facie that the act complained of was done with the knowledge, with the awareness of the accused about the consequences of death or injuries as are likely to cause death. 17. The learned counsel for the petitioners would submit that the lack of taking due care which a reasonable or prudent person was expected to take, which may be sufficient to attract the offence under section 304A of IPC is different from the state of mind, namely the knowledge as to the possibility of causing injuries which are likely to cause the death of the victim. In other words, intention or knowledge has to be alleged and proved by the prosecution to attract the offence of culpable homicide. It was held in the aforesaid decision that direct nexus between the death of a person and the act of the accused is essential to attract section 304(Part II) of IPC. 18. The statements and other records produced by the prosecution do not indicate that the petitioners had the knowledge that by doing that particular act, namely, by lifting the bricks and other building materials using the temporarily put up hoist lift, it was likely to cause death of the persons underneath and/or in the near by compound and as such section 304 would not be attracted at all. 19. Considering the facts and circumstances of the case it can be found that sufficient materials have been placed before Court to prove the rash and negligent act on the part of the contractor, the supervisors and other persons who were directly responsible for the acts complained of. But at the same time merely because some of the accused happened to be partners of the firm, which owns the land, who had entrusted the construction work to the contractor, they can not be held vicariously liable for the offences committed by other accused persons who were in charge of the construction work. It is also pointed out that there was no element of any criminal conspiracy between the accused persons so as to hold them guilty with the aid of Section 120B of IPC. 20. Before a charge is framed under section 304 (Part II), the materials placed by the prosecution must prima facie show that the accused is guilty of culpable homicide. The materials made available would only show that the contractor and other persons, who were directly responsible for the construction and for the lifting of building materials using such temporary hoist lift, did not take reasonable care by providing protective measures or nets to prevent fall of bricks and other materials while being lifted. But the required knowledge of the likelihood of causing such bodily injuries resulting in the death of the person underneath cannot be attributed and as such, charge under section 304 (Part II) cannot be sustained. But there are materials to frame charge for the offence under section 304A of IPC. 21. The fact that the bricks fell down while so lifted through the temporary hoist lift is not disputed by the defence also. It is also not disputed that two nuns died in that incident because of the fatal injury sustained on their heads. It was specifically mentioned in the charge that accused nos 5 to 9 had, in furtherance of their common intention, brought up an agreement in the name of one 'Selvaraj' who was a fictitious person to make it appear that the said 'Selvaraj' was the contractor. It was pointed out that, for that purpose a false agreement was created with intend to deceive the authorities concerned including the Police and/or Court to make it appear that it was not the 5th accused but another 'Selvaraj' who was the contractor and therefore they are liable to be tried for the offence under section 468 of IPC. It was further alleged that the said agreement was produced by A5 and A9 before CW 70. According to the prosecution, by creating such a false document and inducing CW70, those accused persons wanted to cause disappearance of evidence of offence or at any rate those accused persons knowing or having reason to believe that an offence has been committed, gave an information by producing a false agreement before the authority mentioned above and which they knew or believed to be false and as such they have committed offence under section 203 of IPC. 22. It is alleged by the prosecution that since A5 and A9 produced such false document/false agreement knowing it to be false to cheat the authorities concerned, they are also liable to be tried for the offence under section 471 of IPC as well. 23. According to the prosecution the 5th accused was the contractor; A6 to A10 were the supervisors and that the construction was done under the direct supervision of A5, A6 and A10. Therefore, it cannot be said that they cannot be charged for the offence under section 304 A of IPC. It was contended that accused nos.1 to 4 were only labourers and so they cannot be charged for the offences. That contention was strongly resisted by the prosecution pointing out that, that is only a dexterous plea since, if the labourers A1 to A4 are deleted from the party array then definitely the accused facing the trial would try to get themselves exculpated stating that the employees (A1 to A4) were responsible for the act. Be that as it may , who all can be attributed with the recklessness and negligence and who had not taken reasonable care which was expected of to be taken to avoid possible danger is a matter to be adjudged based on the evidence the prosecution may adduce. It is too early for the Court to come to a conclusion as to whether the employees were not responsible or not. Therefore, the contention that A1 to A4 being the employees cannot be fastened with criminal liability, of section 304A IPC, cannot be sustained. 24. A7, A8 and A9, were only partners. They were not actually present at the site. Hence, they cannot be charged for the offence under section 304A of IPC. But proceeding against them cannot be totally quashed in view of the fact that there is a specific charge that A5 to A9 conjointly forged an agreement to make it appear that it was one 'A.Selvaraj' who was the contractor. On investigation it was found that 'A. Selvaraj', shown in the agreement is only a fictitious person. There is also allegation that A5 and A9 have used such a forged document knowing it to be forged. Whether the allegations are true or not are matters to be decided at the trial based on the evidence that may be adduced. Therefore, A5 to A9 would be liable to be tried for offences under sections 468, 471 and 203 of IPC r/w 34 IPC and as such the contention that the charge framed against them for those offences cannot be sustained is bereft of any merit. 25. In view of what is stated above the aforesaid petitions are disposed of as stated below: The charge framed under section 304(Part II) IPC is set aside. Instead, charge shall be framed for offence under section 304A r/w 34 IPC against A1 to A4, A5, A6 and A10. Charge under sections 468, 471 and 203 r/w 34 IPC shall be framed against A5 to A9. 26. The learned Additional Sessions Judge shall frame the amended charge accordingly and transfer the case for trial to the Chief Judicial Magistrate or to the Judicial Magistrate of First Class having jurisdiction over the area and thereupon the learned Magistrate shall try the offence in accordance with the procedure for trial of warrant case instituted on a police report. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj |
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Crl. M.C. No. 3856 of 2011 - Kumar Vs. State of Kerala, 2012 (2) KLJ 67 : 2012 (1) KHC 781posted Mar 22, 2012 1:43 AM by Kesav Das [ updated Jun 19, 2012 7:09 AM by Law Kerala ] |
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