{1} cwp1338-24.doc drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1338 OF 2024 Faizan s/o Farozali Sayyed PETITIONER Age – 29 years, Occ – Contractor R/o 1505, T-Point, Saudagar Colony, Mahur, Taluka – Mahur, District - Nanded VERSUS 1. The State of Maharashtra RESPONDENTS Though the Police Inspector, Sindkhed Police Station, Sindkhed Taluka – Mahur, District – Nanded 2. Datta s/o Kisan Madavi Age – 45 years, Occ – Labour R/o Gondkhedi, Taluka – Mahur District - Nanded ....... Mr. K. N. Shermale, Advocate for the Petitioner Mrs. Kalpalata Patil Bharaswadkar, APP for Respondent - State Mr. Vanayak H. Solanke, Advocate for Respondent No.2 ....… WITH CRIMINAL APPLICATION NO. 4721 OF 2024 IN CRIMINAL WRIT PETITION NO.1338 OF 2024 Laxmi Bhimrao Pendor and Others APPLICANTS VERSUS Faizan Farozali Sayyed and Another RESPONDENTS ....... Mr. Amit A. Mukhedkar, Advocate for Applicants Mr. K. N. Shermale, Advocate for Respondent No.1 Mrs. Kalpalata Patil Bharaswadkar, APP for Respondent - State ....… 2025:BHC-AUG:14150-DB {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 the Constitution of India read with section 482 of the Criminal Procedure Code, the Petitioner seeks quashing of the First Information 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-A and 338 of the Indian Penal Code, lodged by the second respondent and proceedings of Sessions Case No. 243 of 2024 pending in the Court of Additional Sessions Judge, Nanded. 2. Respondent No.2, on 4th October, 2023, lodged FIR, alleging that he resides with his family members at Gondkhedi, Taluka – Mahur. His brother, namely Sanjay Kishan Madavi was doing labour work. On 3rd October, 2023, Sanjay was working as labour on the construction of Nali work at Ward No.5, Gram Panchayat of village Wai Bajar, along with other labours, namely Shubham Bhimrao Pendor and Sumit Sitaram Marape. Construction of wall of nali was of substandard quality and 30 feet long and 8 feet high wall collapsed on Sanjay, Shubham and Sumit. Due to the same, they received serious injuries. They were admitted in Rural Hospital, Maur. Sanjay expired around 1.00 p.m. Shubham and {3} cwp1338-24.doc Sumit were shifted to Government Hospital, Yeotmal. At Yeotmal, Shubam expired on 4th October, 2023. Sumit returned after taking treatment there. Petitioner and concerned Agency, which was doing the construction work, were negligent while doing the work and, therefore, Sanjay and Shubahm have expired. 3. On the basis of the said FIR, crime No. 106 of 2023 was registered with Sindkhed Police Station, Taluka – Mahur and investigation 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 – Raju Parmeshwar Mane, owner of JCB. It is alleged in the charge sheet that, concrete wall has fell due to the dash given by JCB. The petitioner did not obtain insurance of all the labours, as per the terms of the contract given to him. Hence, all the three accused have committed offence punishable under sections 304 and 338 of the Indian Penal Code. 4. On filing of the charge sheet, the case is numbered as Sessions Case No. 243 of 2024 and the same is pending on the file of Additional Sessions Judge, Nanded. 5. Learned Advocate for the Petitioner submits that from the charge sheet and the investigation, it is clear that this is a case {4} cwp1338-24.doc of accident. Due to the accidental dash given by the JCB, the concrete wall fell on the labours. Material used in the construction was of standard quality, so also the construction quality is good and the wall did not fall because it was of substandard quality. He, therefore, submits that no mens rea can be attributed to the Petitioner, which is a requisite ingredient of section 304 of the Indian Penal Code. He further submits that there is no material on record to show that the Petitioner has done any act, which endangered lives of the labours. According to him, not obtaining insurance of the labours would not attract section 304 of the Indian Penal Code against the Petitioner. By relying on the decision of this Court dated 16th September, 2021 in Criminal Application No. 498 of 2021 (Brijesh Kanubhai Patel and Others V/s State of Maharashtra and Another), he prays for quashing of the proceedings against the Petitioner. 4. Learned APP strenuously opposed the Petition contending that ingredients of sections 304 and 338 are clearly made out in the charge sheet and this is not a fit case for quashing of the FIR and proceedings. 5. Learned Advocate for the Second Respondent adopted the arguments of the learned APP and opposed the Petition. 6. Mr. Mukhedkar, learned Advocate for the intervenors - {5} cwp1338-24.doc parents of deceased Shubham, vehemently opposed the Application submitting that as construction of the wall was of substandard quality, it has fallen on the labours working there, due to which two labours have lost their lives. By relying on the decision in “Vishnu V. Vaze V/s Police Inspector, Bicholim and Another” 2018 (3) Mh.L.J. (Cri) 297, he submits that negligence on the part of the Petitioner is writ large on the face of record, therefore, the prosecution against the Petitioner is not liable to be quashed. 7. With the assistance of learned Advocates appearing for the respective parties and learned APP, we have perused the record. 8. Charge sheet and the material collected during the investigation shows that due to the accidental dash given by the JCB to the concrete wall, the wall fell on the labours and two labours have lost their lives and one was injured. Correspondence by Sub Divisional Engineer, Zilla Parishad, Water Supply Division, Mahur with Police Sub Inspector, Sindkhed Police Station and Chief Executive Officer, Zilla Parishad, Nanded shows that the standard and quality of the construction work done by the Petitioner was checked by him and also by the Government Polytechnic, Nanded and it was found that the material used by the Petitioner for construction is of standard quality. On {6} cwp1338-24.doc inspection of the wall, the Sub Divisional Engineer has found that gradient, width and depth of the canal is in accordance with the estimate. The correspondence further reveals that it was the duty of the Petitioner to get insurance of all the labours working on the said project. The work of filling should have been done at a subsequent stage, after proper curing of the concrete wall. Therefore, there appears negligence on the part of the contractor. Unfortunately, due to the dash given by the JCB to the wall, the accident has taken place and two labours have lost their lives. 9. From the above, as well as from the statements of the witnesses recorded during the investigation, it is clear that, due to the accidental dash given by the JCB operated by Accused No.2, wall fell on the labours. 13. Section 304 of the Indian Penal Code prescribes punishment for commission of offence of culpable homicide not amounting to murder. Section 299 of the Indian Penal Code defines culpable homicide as “whoever causes death by dying an act with an intention of causing death, or with the intention of causing such bodily injury as likely to cause death, or with the knowledge that he is likely by such act to cause death, commit the offence of culpable homicide”. Intention to cause death or {7} cwp1338-24.doc knowledge that by such act he is likely to cause death are essential ingredients to attract Section 299 of the Indian Penal Code. Therefore, mens rea is an essential ingredient for conviction 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 and Another V/s State of Gujrat and others” MNANU/SC/0964/2012 : 2012 : INSC:518: (2012) 13 SCC 231, in paragraph Nos. 24 and 25 observed as under: “24. Section 299 IPC defines culpable homicide as causing of death by doing an act with the intention of causing of death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act death is likely to be caused. Under Section 300 IPC all acts of culpable homicide amount to murder except what is specifically covered by the exceptions to the said Section 300. Section 304 of the Penal Code provides for punishment for the offence of culpable homicide not amounting to murder. 25. Commission of the offence of culpable homicide would require some positive act on the part of the accused as distinguished from silence, inaction or a mere lapse. Allegations of not carrying out a prompt search of the missing children, or delay in the lodging of formal complaint with the police and failure to take adequate measures to guard the access from the ashram to the river; which are the principal allegations made in the FIR, cannot make out a case of {8} cwp1338-24.doc culpable homicide not amount to murder punishable under Section 304 IPC. To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present. Such statement are conspicuously absent in the FIR filed in the present case.” 16. Case of the Petitioner is squarely covered by the aforesaid ratio. Even if the allegations made in the First Information Report and the material collected during the investigation is accepted as it is, in our opinion, they do not make out any ingredient of section 299 of the Indian Penal Code against the Petitioner. The accident has taken place due to the dash given by the JCB to the wall, the wall collapsed on the labours and two labours have lost their lives. In this view of the matter, it cannot be said that the Petitioner has done some positive act as distinguished from silent inaction or mere lapse with an intention to cause death of the labours. There is no material on record to prove ingredients of sections 299, 300, 304 and 338 of the Indian Penal Code, to sustain charge against the Petitioner. Only because the Petitioner failed to obtain insurance of the labours working for him, that by itself does not, in the facts of the present case, would attract any criminal liability against the Petitioner. For the said lapse, the Petitioner can be held liable to pay compensation to the legal heirs of the deceased Labour. {9} cwp1338-24.doc 17. For the aforestated reasons, the Criminal Writ Petition is allowed. 18. First Information 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 and 338 of the Indian Penal Code, lodged by the second respondent as well as proceedings of Sessions Case No. 243 of 2024 pending before Additional Sessions Judge, Nanded, are quashed to the extent of the Petitioner. 18. Amount of Rs.2 lakh deposited by the Petitioner in Anticipatory Bail Application No. 2093 of 2023, along with interest accrued thereon, be paid to the intervenors. 19. Amount of Rs.2 lakh deposited by the Petitioner in this Petition, along with interest accrued thereon, be paid to the second respondent. 20. Above mentioned compensation paid to the second Respondent and the intervenors shall be taken into consideration at the time of awarding them compensation, if they file proceedings for compensation and succed in the same. [ MANJUSHA DESHPANDE ] [ NITIN B. SURYAWANSHI ] JUDGE JUDGE drp/cwp1338-24.doc