PINKESH DHIRAJ PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard finally, by consent of learned counsel for the Petitioners and learned APP for Respondent No.1 State.

(2.) It is the submission of the learned counsel for the Petitioners that even though charge-sheet is filed under Sec. 304 read with Sec. 34 of the Indian Penal Code against both the Petitioners and although the learned Judicial Magistrate First Class has committed the case to the Sessions Court for its trial for an offence punishable under Sec. 304 of the Indian Penal Code, the fact is that by no stretch of imagination can it be stated that any offence of culpable homicide not amounting to murder as explained by the Exception 2 of Sec. 300 of the Indian Penal Code is committed in this case. He further submits that in this case, there is no homicide much less culpable, committed by the Petitioners and, for committing the offence of culpable homicide, some overt act on the part of the accused and that too with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death and as provided under Sec. 299 of the Indian Penal Code is required. He submits that such intention is conspicuously absent from the allegations made in the FIR. He relies upon the law laid down in the case of Shantibhai J. Vaghela and Anr. V. State of Gujarat,(2012) 13 SCC 231.

(3.) Learned APP for the Respondent-State submits that the allegations made against the Petitioners are specific in nature and it is because of their failure to provide proper safety belts and safety measures and leaving by them exposed vertical iron bars in the column, that the unfortunate death has occurred in the present case and therefore, it would be a matter of trial as to whether or not where there was any intention on the part of the accused persons in doing such an act as was likely to cause a fatal injury. He further submits that Petitioner No.2 has not been chargesheeted only because he is absconding and such conduct of Petitioner No.1 would dis-entitle him from invoking the jurisdiction of this Court.