Judge observes investigation agency has charged accused on two ‘contrasting’ aspects,
for rash & negligent act and for culpable homicide not amounting to murder
MARGAO
The investigating agency in the Canacona Ruby building collapse case that killed 31 workers had been found wanting by the South Goa Sessions Court in bringing on record the material and evidence to pin down the government servants and the two builders resulting in their discharge.
Even in the case of contractor Vishwas Desai, the lone accused, who has been directed to face trial in the case, South Goa Sessions Judge B P Deshpande was categorical in pointing out that the Investigating Agency was confused and in a dilemma whether the contractor had committed a rash and negligent act or culpable homicide not amounting to murder.
"On one hand, the prosecution is alleging rash and negligent act on the part of the contractor and on the other hand, the agency has claimed that the accused has committed culpable homicide not amounting to murder. To my mind, both aspects cannot run concurrently in connection with the same act alleged against the accused. It is not possible to accept the contention of the prosecution that on one hand, the contractor, committed culpable homicide as far as causing death of 31 persons and on the other hand, the contractor was rash and negligent in performing his act thereby endangering human life and causing hurt/grievous hurt to other labourers. This clearly shows that the Investigating Agency itself is confused about the act performed by the contractor and whether it comes within the scope of culpable homicide qua the persons who died in the said incident and on the other hand, rash and negligent act qua the persons injured in the same incident," Judge Deshpande stated in his order.
Asserting that the basic ingredient of Section 304-A is death of a person caused by rash and negligent act which does not amount to culpable homicide, Judge Deshpande observed that the prosecution cannot be permitted to claim that the contractor committed an offence under Section 304 of IPC, i.e culpable homicide not amounting to murder only in respect of persons who died in the incident and on the other hand, same accused committed offences under Sections 336, 337 and 338 of IPC in connection with the persons who suffered hurt/grievous hurt by his rash and negligent act.
"Either there has to be an intention or a knowledge that by that act the accused is likely to cause death amounting to culpable homicide, but not causing death by negligence. Thus, by invoking Section 304 of IPC together with Sections 336, 337 and 338 of IPC, the prosecution itself shows the dilemma in the mind of the Investigating Officer as well as putting up contrary claim with regard to the same incident," the Judge said.
On the question whether the contractor had deviated from the structural plans affecting the stability of the building, Judge Deshpande said the investigating Agency failed to point out whether such deviations were minor or major and whether such deviations affected the entire structure of the building so as to cause a collapse.
"It was for the Investigating Agency to find out whether so-called deviations in the structural plans affected the structural liability of the building and in absence of such material, it cannot be said that the cause of collapse of the said building was only because of some deviations," Judge Deshpande observed.
