XEC AYUB MINEIRO Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by Xec Ayub against an order dated 9-6-1964 by which the quepem magistrate accepted the charge against him and fixed the date for trial. The charge accepted against the appellant is double headed. Firstly, he was charged under Section 368 of the Portuguese Penal Code (hereinafter referred to as the Code), and, secondly, he was charged under Article 1 of Notification No. 5840 dated 27th August, 1953. The charge had been formulated against Xec Ayub and another person, Cuxali Custa Porobo Dessai. However, the latter person has not come up in appeal.

(2.) The facts of the case are neither involved, nor much in contest. Succinctly put, Xec Ayub is owner of a mine known as "Zam-butolem" in Verlem of Sanguem. His co-accused was a supervisor looking after the actual working at the mine. At about 12 noon on 18-7-1963, when the labourers were away on lunch break, a part of the mining site was blasted with dynamite. This was a site different from where the work of mining was actually being done on that date. The distance between the two sites has been variously put by the witnesses at anything between 50 and 125 feet. The labourers reassembled after enjoying their lunch and started the operations in normal routine. In between, it appears, there had been somewhat excessive rain. At 4 p.m. some considerable part of the rock and other material from the face of the mine tumbled down and fell on a worker. The same mass hurtled down and involved another three workers busy at the bottom of the mine. All the four persons were seriously injured. Instantly a truck was arranged and all the four injured were rushed towards a hospital. However, unluckily, all the four succumbed to their respective injuries. Cuxali, the co-accused of Xec Ayub, reported the occurrence to the mining officers. Experts were requisitioned by those officers for probing into the cause of the tragic occurrence. Their conclusions were that the occurrence was due to vis major and for the reason that the Works in-charge did not bestow proper care to verify whether the facing where the victims were working was such that work could be carried out without involving any risk in the context of the blasting operations which had been carried out a few hours earlier and the subsequent heavy showers.

(3.) After the Delegado de Procurador of Quepem had collected all the relevant material, he formulated a charge both against Xec Ayub and Cuxali and submitted the same to the Court. As already mentioned, the Court admitted the charge and fixed the date for trial.