KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. 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.

(2.) 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.

(3.) 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.