High Court
Legal Reasoning
{1} cwp1338-24.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1338 OF 2024Faizan s/o Farozali Sayyed PETITIONERAge – 29 years, Occ – ContractorR/o 1505, T-Point, Saudagar Colony, Mahur, Taluka – Mahur, District - NandedVERSUS1.The State of Maharashtra RESPONDENTSThough the Police Inspector, Sindkhed Police Station, SindkhedTaluka – Mahur, District – Nanded2.Datta s/o Kisan MadaviAge – 45 years, Occ – LabourR/o Gondkhedi, Taluka – MahurDistrict - Nanded.......Mr. K. N. Shermale, Advocate for the PetitionerMrs. Kalpalata Patil Bharaswadkar, APP for Respondent - State Mr. Vanayak H. Solanke, Advocate for Respondent No.2....…WITHCRIMINAL APPLICATION NO. 4721 OF 2024INCRIMINAL WRIT PETITION NO.1338 OF 2024Laxmi Bhimrao Pendor and Others APPLICANTSVERSUSFaizan Farozali Sayyed and Another RESPONDENTS.......Mr. Amit A. Mukhedkar, Advocate for ApplicantsMr. K. N. Shermale, Advocate for Respondent No.1Mrs. Kalpalata Patil Bharaswadkar, APP for Respondent - State ....… {2} cwp1338-24.doc [CORAM : NITIN B. SURYAWANSHI, & MANJUSHA DESHPANDE, J. J.] DATE : 7 th MAY, 2025 ORDER :1.By this petition, filed under Articles 226 and 227 of theConstitution of India read with section 482 of the CriminalProcedure Code, the Petitioner seeks quashing of the FirstInformation Report bearing No. 106 of 2023 dated 3rd October,2023 registered with Sindkhed Police Station, Taluka – Mahur,District – Nanded, for offence punishable under sections 304-Aand 338 of the Indian Penal Code, lodged by the secondrespondent and proceedings of Sessions Case No. 243 of 2024pending in the Court of Additional Sessions Judge, Nanded.2.Respondent No.2, on 4th October, 2023, lodged FIR, allegingthat he resides with his family members at Gondkhedi, Taluka –Mahur. His brother, namely Sanjay Kishan Madavi was doinglabour work. On 3rd October, 2023, Sanjay was working as labouron the construction of Nali work at Ward No.5, Gram Panchayatof village Wai Bajar, along with other labours, namely ShubhamBhimrao Pendor and Sumit Sitaram Marape. Construction of wallof nali was of substandard quality and 30 feet long and 8 feethigh wall collapsed on Sanjay, Shubham and Sumit. Due to thesame, they received serious injuries. They were admitted in RuralHospital, Maur. Sanjay expired around 1.00 p.m. Shubham and {3} cwp1338-24.docSumit were shifted to Government Hospital, Yeotmal. At Yeotmal,Shubam expired on 4th October, 2023. Sumit returned aftertaking treatment there. Petitioner and concerned Agency, whichwas doing the construction work, were negligent while doing thework and, therefore, Sanjay and Shubahm have expired.3.On the basis of the said FIR, crime No. 106 of 2023 wasregistered with Sindkhed Police Station, Taluka – Mahur andinvestigation was conducted. On completion of the investigation,charge sheet came to be filed against three accused persons i.e.Accused No.1 - Petitioner, being the contractor, Accused No.2 -Bhimrao Sheku Jugnake, JCB driver and Accused No.3 – RajuParmeshwar Mane, owner of JCB. It is alleged in the charge sheetthat, concrete wall has fell due to the dash given by JCB. Thepetitioner did not obtain insurance of all the labours, as per theterms of the contract given to him. Hence, all the three accusedhave committed offence punishable under sections 304 and 338of the Indian Penal Code.4.On filing of the charge sheet, the case is numbered asSessions Case No. 243 of 2024 and the same is pending on thefile of Additional Sessions Judge, Nanded.5.Learned Advocate for the Petitioner submits that from thecharge sheet and the investigation, it is clear that this is a case {4} cwp1338-24.docof accident. Due to the accidental dash given by the JCB, theconcrete wall fell on the labours. Material used in theconstruction was of standard quality, so also the constructionquality is good and the wall did not fall because it was ofsubstandard quality. He, therefore, submits that no mens rea canbe attributed to the Petitioner, which is a requisite ingredient ofsection 304 of the Indian Penal Code. He further submits thatthere is no material on record to show that the Petitioner hasdone any act, which endangered lives of the labours. Accordingto him, not obtaining insurance of the labours would not attractsection 304 of the Indian Penal Code against the Petitioner. Byrelying on the decision of this Court dated 16th September, 2021in Criminal Application No. 498 of 2021 (Brijesh Kanubhai Pateland Others V/s State of Maharashtra and Another), he prays forquashing of the proceedings against the Petitioner. 4. Learned APP strenuously opposed the Petition contendingthat ingredients of sections 304 and 338 are clearly made out inthe charge sheet and this is not a fit case for quashing of the FIRand proceedings.5.Learned Advocate for the Second Respondent adopted thearguments of the learned APP and opposed the Petition.6.Mr. Mukhedkar, learned Advocate for the intervenors -
Legal Reasoning
{5} cwp1338-24.docparents of deceased Shubham, vehemently opposed theApplication submitting that as construction of the wall was ofsubstandard quality, it has fallen on the labours working there,due to which two labours have lost their lives. By relying on thedecision in “Vishnu V. Vaze V/s Police Inspector, Bicholimand Another” 2018 (3) Mh.L.J. (Cri) 297, he submits thatnegligence on the part of the Petitioner is writ large on the faceof record, therefore, the prosecution against the Petitioner is notliable to be quashed.7.With the assistance of learned Advocates appearing for therespective parties and learned APP, we have perused the record.8.Charge sheet and the material collected during theinvestigation shows that due to the accidental dash given by theJCB to the concrete wall, the wall fell on the labours and twolabours have lost their lives and one was injured.Correspondence by Sub Divisional Engineer, Zilla Parishad, WaterSupply Division, Mahur with Police Sub Inspector, Sindkhed PoliceStation and Chief Executive Officer, Zilla Parishad, Nanded showsthat the standard and quality of the construction work done bythe Petitioner was checked by him and also by the GovernmentPolytechnic, Nanded and it was found that the material used bythe Petitioner for construction is of standard quality. On {6} cwp1338-24.docinspection of the wall, the Sub Divisional Engineer has found thatgradient, width and depth of the canal is in accordance with theestimate. The correspondence further reveals that it was theduty of the Petitioner to get insurance of all the labours workingon the said project. The work of filling should have been done ata subsequent stage, after proper curing of the concrete wall.Therefore, there appears negligence on the part of thecontractor. Unfortunately, due to the dash given by the JCB to thewall, the accident has taken place and two labours have lost theirlives.9.From the above, as well as from the statements of thewitnesses recorded during the investigation, it is clear that, dueto the accidental dash given by the JCB operated by AccusedNo.2, wall fell on the labours. 13.Section 304 of the Indian Penal Code prescribespunishment for commission of offence of culpable homicide notamounting to murder. Section 299 of the Indian Penal Codedefines culpable homicide as “whoever causes death by dying anact with an intention of causing death, or with the intention ofcausing such bodily injury as likely to cause death, or with theknowledge that he is likely by such act to cause death, committhe offence of culpable homicide”. Intention to cause death or {7} cwp1338-24.docknowledge that by such act he is likely to cause death areessential ingredients to attract Section 299 of the Indian PenalCode. Therefore, mens rea is an essential ingredient forconviction under Section 304 of the Indian Penal Code. (Vide“Prasad and Others V/s State of Maharashtra and Others”MANU/MH/1380/2025)15.The Apex Court in case of “Shantibhai J. Vaghela andAnother V/s State of Gujrat and others”MNANU/SC/0964/2012 : 2012 : INSC:518: (2012) 13 SCC231, in paragraph Nos. 24 and 25 observed as under:“24.Section 299 IPC defines culpable homicide as causing ofdeath by doing an act with the intention of causing of death or withthe intention of causing such bodily injury as is likely to cause deathor with the knowledge that by such act death is likely to be caused.Under Section 300 IPC all acts of culpable homicide amount tomurder except what is specifically covered by the exceptions to thesaid Section 300. Section 304 of the Penal Code provides forpunishment for the offence of culpable homicide not amounting tomurder.25.Commission of the offence of culpable homicide wouldrequire some positive act on the part of the accused as distinguishedfrom silence, inaction or a mere lapse. Allegations of not carryingout a prompt search of the missing children, or delay in the lodgingof formal complaint with the police and failure to take adequatemeasures to guard the access from the ashram to the river; which arethe principal allegations made in the FIR, cannot make out a case of {8} cwp1338-24.docculpable homicide not amount to murder punishable under Section304 IPC. To attract the ingredients of the said offence somethingmore positive than a mere omission, lapse or negligence on the partof the named accused will have to be present. Such statement areconspicuously absent in the FIR filed in the present case.”16.Case of the Petitioner is squarely covered by the aforesaidratio. Even if the allegations made in the First Information Reportand the material collected during the investigation is accepted asit is, in our opinion, they do not make out any ingredient ofsection 299 of the Indian Penal Code against the Petitioner. Theaccident has taken place due to the dash given by the JCB to thewall, the wall collapsed on the labours and two labours have losttheir lives. In this view of the matter, it cannot be said that thePetitioner has done some positive act as distinguished from silentinaction or mere lapse with an intention to cause death of thelabours. There is no material on record to prove ingredients ofsections 299, 300, 304 and 338 of the Indian Penal Code, tosustain charge against the Petitioner.Only because the Petitioner failed to obtain insurance ofthe labours working for him, that by itself does not, in the factsof the present case, would attract any criminal liability againstthe Petitioner. For the said lapse, the Petitioner can be held liableto pay compensation to the legal heirs of the deceased Labour. {9} cwp1338-24.doc17.For the aforestated reasons, the Criminal Writ Petition isallowed.18.First Information Report bearing No. 106 of 2023 dated 3rdOctober, 2023 registered with Sindkhed Police Station, Taluka –Mahur, District – Nanded, for offence punishable under sections304 and 338 of the Indian Penal Code, lodged by the secondrespondent as well as proceedings of Sessions Case No. 243 of2024 pending before Additional Sessions Judge, Nanded, arequashed to the extent of the Petitioner.18.Amount of Rs.2 lakh deposited by the Petitioner inAnticipatory Bail Application No. 2093 of 2023, along withinterest accrued thereon, be paid to the intervenors.19.Amount of Rs.2 lakh deposited by the Petitioner in thisPetition, along with interest accrued thereon, be paid to thesecond respondent.20.Above mentioned compensation paid to the secondRespondent and the intervenors shall be taken into considerationat the time of awarding them compensation, if they fileproceedings for compensation and succed in the same. [ MANJUSHA DESHPANDE ] [ NITIN B. SURYAWANSHI ]JUDGEJUDGE drp/cwp1338-24.doc