Delhi High Court

Baldev Raj Kapur vs State on 6 February, 2009

Author: Aruna Suresh

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+          Crl. Rev. (P). 431/2005 & Crl. M.A.
           No. 5436/05

                           Date of decision: February 06, 2009


#     BALDEV RAJ KAPUR                 ..... Petitioner
!             Through : Mr. P.R. Thakur, Adv.


                              Versus


$     STATE                               ..... Respondent
^                     Through : Mr. O.P. Saxena, APP
                                SI Sudhir Kumar

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not? Yes

     (3) Whether the judgment should be reported
         in the Digest ?                     Yes

                           JUDGMENT

ARUNA SURESH, J.

1. Impugning the order of the learned Additional

Sessions Judge dated 25.4.2005 whereby the trial

court, while discharging the petitioner for offences

under Sections 304A/308 of Indian Penal Code

(hereinafter referred to as IPC) concluded that,

prima facie a case for offences under Sections 304

Part II/308 IPC was made out against the

petitioner.

2. In brief the allegations of the prosecution against

the petitioner are that, he is the owner of Shop No.

23, DDA Market, Shanti Store, Punjabi Bagh, Delhi.

On 22.10.2002, the said four-storeyed building,

which was under construction, collapsed. This

resulted into death of six labourers and grievous

injuries to eight labourers. Injured Arun Kumar,

who was working as mason in the said building

made a statement to the police in the hospital and

on his statement FIR No. 832/2002 for offences

under Sections 304/308/427/34 IPC was registered

at Police Station Punjabi Bagh against the

petitioner and co-accused Mohd. Kaif. Petitioner

was arrested and released on bail. Co-accused,

Mohd. Kaif the contractor could not be arrested

and was declared proclaimed offender.

3. Mr. P.R. Thakur, learned counsel for the petitioner

has submitted that the trial court adopted an

incorrect approach when it observed that prima

facie an offence under Section 304 Part II/308 IPC

was made out against the petitioner. Petitioner

was the owner of the shop and being an owner and

a layman had no knowledge about the manner in

which the construction was to be raised, the

material to be used in the construction of the

building and also that only repair and renovation

work was being carried out in the building as the

three-storeyed building already existed at the spot

when renovation work was started. For that

purpose, he has referred to the House Assessment

Demands made by the House Tax Department of

Municipal Corporation of Delhi in the year 1995

and again in the year 1998. It is further submitted

by the learned counsel for the petitioner that it was

the contractor who was responsible for the

construction work and he had employed the labour

for carrying out necessary repairs/

renovation/construction in the building, the

contractor used to receive payment from the

petitioner, the construction material also used to

be procured by the contractor himself, he used to

give necessary instructions to the labour for

carrying out the work. Learned counsel for the

petitioner has also submitted that at the relevant

time petitioner had undergone heart surgery and

was not physically fit to visit the spot nor, he was

present at the time when the building collapsed.

He urged that the order of the trial court dated

25.4.2005 is based on conjectures and surmises

and not on prima facie evidence available on

record, is bad in law and deserves to be set aside.

4. Mr. O.P. Saxena, learned APP for the State has

submitted that as per the complaint, petitioner

along with the contractor had been ignoring the

cautions which were being given to them by the

mason and insisted on expediting the work which

resulted into collapse of the building and therefore,

being owner of the premises, he was in the

knowledge that such act could cause death of any

of the labourer working there and therefore, the

trial court was right when it observed that prima

facie offences under Section 304 Part II read with

Section 308/34 IPC were made out against the

petitioner and prayed that revision being without

merits deserves dismissal.

5. Undisputedly, the petitioner who happened to be

accused No. 1 before the trial court is the owner of

the collapsed building. It is also not in dispute that

petitioner had engaged the services of contractor

Mohd. Kaif for the job of construction under an oral

contract. There was a sanctioned building plan and

the Municipal Corporation of Delhi was also

collecting house tax from the petitioner after its

inspection and assessment. (The house assessment

of the entire fourth storeyed building has been

questioned by the prosecution.) It was for the

MCD to see if any unauthorized construction was

being carried on at the premises owned by the

petitioner. Be that as it may, this is not an issue to

be considered by this Court in this revision

petition.

6. Admittedly, petitioner was not present at the spot

when the building collapsed. It is also not in

dispute that petitioner was a layman and did not

know the technicalities of construction of a

building and he left the entire job at the hands of

the contractor and therefore, glazy consented to

every step or advice or instructions given by the

contractor to his labour for carrying out necessary

construction.

7. Complainant was working as a mason and was in

the know of technicalities of the building

construction. He had worked with Mohd. Kaif

earlier also. There was no direct nexus of the

petitioner with the stages of construction of the

building.

8. The trial court on the basis of the evidence placed

on record observed:

"From the reading of both the section 299 and 300 of IPC and the exceptions provided u/s 300 of IPC, I am of the convinced view that accused No.1 had given the contract to accused No.2. It was within his knowledge that a building is likely to constructed on the spot and without the

knowledge and active participation in the stages of constructions, no owner would make payments to the contractor. Accused No.1 cannot be absolved off his role in over seeing the completion of construction for which the work was entrusted to the contractor. He had the knowledge about the construction and the stages there of while making the payments on various dates to the contractor. The owner of the building has a duty to the workers involved in construction,the neighbourhood and the users of the road in so far as the building is situate on a main road. I find that in the instant case the accused No.1 being the owner of the building had enough knowledge about the construction and the various stages of progress made in the construction. It was incumbent upon the part of accused No.1 to have ensured by giving proper instructions to the contractor and to have taken of the precautionary steps for strict compliance there of so that the construction would not cause any hardship or tragic incident. Hence the accused No.1 had enough knowledge about the impending dangers and though this act can be viewed as negligence, the same is positive knowledge in so far as the offence u/s 304 IPC is concerned."

9. The Court finally concluded:

"After having gone through the entire charge sheet, I find that there is a prima facie case against

accused as cited in the charge sheet except u/s 427 of IPC.

Hence, charges be framed accordingly, u/s 304 (part II) of IPC."

10. The trial court went wrong in interpreting the

provisions contained in Sections 299 and 300 IPC.

Section 299 IPC defines culpable homicide which

may amount to murder within the meaning of

Section 300 IPC or may amount to culpable

homicide not amounting to murder inviting the

penal provisions of Section 304 IPC. All murders

are culpable homicide but it is not vice-versa as

culpable homicide in the scheme of the Penal Code

is genus and murder is its specie. Therefore,

culpable homicide, in the absence of special

characteristics of murder tantamounts to culpable

homicide not amounting to murder. In this case,

the trial court has taken cognizance of culpable

homicide based on presumptive knowledge of the

petitioner, punishable under Part (II) of Section

304 IPC.

11. Under Section 304 Part II of IPC the degree of

knowledge required is, knowledge of the likelihood

of death. To make out a case against an accused of

culpable homicide under Section 304 Part II of IPC,

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

consequence of death or grievous injury of such

kind as would result in death. In the crucial

aspect, therefore, the state of mind i.e. intention or

knowledge of the consequence, proof of such

intention or knowledge has to be of high order and

all other hypothesis of innocence of accused have

to be ruled out. Direct nexus between the death of

a person and the act of the accused is essential to

attract the provisions of Section 304 Part II IPC.

12. The material placed on record and relied upon

before the trial court by the prosecution for

framing a charge under Section 304 Part II IPC, as

discussed above, in my view cannot support such a

charge unless it indicated prima facie that on that

fateful day when the building collapsed it was

being constructed under the direct supervision of

the petitioner or on his instructions and it was

within the knowledge of the petitioner that such

construction was likely to cause death of human

beings.

13. It is not the case of the prosecution that petitioner

had inflicted any injuries on the person of the

deceased labourers or demolished the building

knowing it well that it was likely to cause death of

the labourers on whom the debris might fall. The

knowledge as inferred by the trial court while

proceeding against the petitioner for offences

under Section 304 Part II of IPC and Section 308

IPC is derived from the petitioner being the owner

and not on the basis of any evidence available on

the record to indicate that petitioner had the

knowledge that by doing an act of raising a

particular construction in the building, he was

likely to cause death of the mason and other

labourers working therein or, such construction

likely to cause injuries dangerous in nature on their

persons, attracting the provisions of Section

304/308 IPC. To attract the provisions of Section

304 Part II IPC/308 IPC, presence of the petitioner

and his direct nexus with the act of causing death

of six labourers and causing injuries on the person

of eight labourers is required to be shown.

14. An offence of the like nature, at the best can be

termed as rash and negligent act on the part of the

contractor who was getting the building

constructed, by employing the deceased persons,

injured persons and other labourers at the relevant

time when work of stones, electricity, sanitary and

construction work was going on.

15. Simply because a chargesheet was filed by the

prosecution for offences under Sections

304/308/427/34 IPC, the trial court should not have

framed charges mechanically without prima facie

sifting or weighing the evidence as placed on

record by the prosecution to reach to a proper

conclusion, what offence, if any, was made out

against the petitioner.

16. Petitioner cannot be held vicariously liable for an

offence under Section 304 Part II IPC.

17. In Vijay Mafatlal Solanki and Anr. v. The State

of Gujarat - MANU/GJ/0775/2005 wherein a

building in Ahmedabad city was seriously damaged

and major portion of the said building collapsed on

26.1.2001 and the prosecution had chargesheeted

the petitioners as persons responsible for offences

under Section 304 Part II besides other sections,

for the collapse of the building on the plea that

super structure had collapsed because of

irresponsible pattern of construction and certain

omissions and commissions in constructing the

building which ultimately collapsed resulting into

the loss of lives and properties of the individuals

who were occupying the flats in the said

apartment, it was observed:

"9. Having considered the totality emerging from record and in view of the discussion made above, the Court is of the view that, prima facie, the accused persons could not have been chargesheeted for the offence punishable under Section 304 Part : II of the IPC along with other sections which the accused is charged, as there is no element of knowledge or intention on the part of the

petitioner. As there is also no element of any criminal conspiracy, the petitioners could not have been chargesheeted for the offence punishable under Section 120-B of IPC. This section has a direct nexus with an intention and mitigation of mind. When a major change is found to be related to the element of negligence, may be by overt act or by omission, there can not be even assumption of conspiracy.

Lack of reasons, to earn some more profit or to get illegal gratification may result in to negligence and also criminal negligence. The same is an independent offence punishable under IPC. The court is prima facie satisfied that the element of intention to commit a criminal wrong is lacking and, therefore, the accused could not have been chargesheeted for the said offence. So, the petitioners at least should have been discharged from the offence punishable under section 304 & 120 -B of the IPC and ld. Addl. Sessions Judge ought to have said that the accused should be asked to face charge of the offence punishable under Section 304-A of IPC along with other offences charges referred to above."

18. Reading of Section 304 Part II makes it clear that

an accused can be charged under the said

provision for an offence of culpable homicide not

amounting to murder only when being so charged,

it is alleged that the accused has done the act with

the knowledge that it is likely to cause death or to

cause such bodily injury as is likely to cause death;

under such circumstances the charged offences

would fall under Section 304 Part II. But, before

any charge is framed under Section 304 Part II, the

material on record must at least prima facie show

that the accused is guilty of homicide and the act

committed must amount to culpable homicide.

Where 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 under Section 304 Part II IPC not

amounting to murder, it is in the interest of justice

that provisions of Section 304 Part II IPC are

eliminated.

19. Consequently, the material placed on record and

relied upon before the trial court by the

prosecution for framing a charge under Section

304 Part II IPC, as discussed, in my view, cannot

support such a charge unless, it indicated prima

facie that on that fateful day when the building

collapsed, it was being constructed under the

direct supervision of the petitioner or on his

instructions and it was within the knowledge of the

petitioner that such construction was likely to

cause death of human beings.

20. Therefore, the trial court did not rightly consider

the entire material placed on record by the

prosecution while charging the petitioner for

offences under Section 304 Part II IPC. The

material placed on record did not call for framing

of a charge against the petitioner only on the plea

that, petitioner being owner of the property was in

the knowledge of the consequences of the

construction, that it was likely to cause death or

bodily injuries to the labourers working therein.

21. What is left to be seen, if any offence under Section

304-A IPC is made out against the petitioner in the

light of the material available on the record as

discussed above.

22. Petitioner being an owner of the property and a

layman cannot be fasten with the liability of having

caused death of the workers by his rash and

negligent act. There is no evidence to indicate

direct nexus between the petitioner and the alleged

rash and negligent act without the intervention of

another's negligence which caused death of six

workers and bodily injuries to eight workers.

Rather negligence is attributed to co-accused

Mohd. Kaif.

23. In Emperor v. Omkar Rampratap and another -

1902 BLR (IV) 679, in similar circumstances

when some workers died while working in the

premises of the contractor, which he had hired, due

to the alleged rash and negligent act on the part of

the accused persons for which they were charged

for offences under Section 304 A IPC, it was

observed:

"To impose criminal liability on the accused it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must have

been the proximate and efficient cause without the intervention of another negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non."

24. This judgment is being consistently followed by

various High Courts.

25. In State of Maharashtra v. V. Govind Salalsure

and others - 1991 (2) Cri. LC 623 where

workers were doing the work of repairing the well

owned by one of the accused persons, the well

collapsed and 13 workers were trapped in debris

and died on the spot and about 8 workers received

injuries in the incident and the owner of the well

was not present at the time of the accident and

there was no evidence to show that the work was

being carried out with the consent or knowledge of

the accused, it was held that merely because large

number of persons died the accused could not be

punished as there is no presumption in favour of

the prosecution that accidental death is caused by

rash and negligent act.

26. Similarly in Krishan Lal v. State of Haryana -

1994 (1) Recent Criminal Reports 259 where

the owner was getting constructed the building

through a contractor, wall of building collapsed

killing three persons and injuring seven persons

and the owner was chargesheeted for offences

under Section 304/304-A IPC, it was observed that

petitioners were proprietors of the building which

was under construction and there was no

negligence of any kind on their part; that neither

the essential ingredients of the offence under

Section 304 of the IPC nor those of 304 A were

made out.