1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.389 OF 2008 Avinash Shamrao Nadkarni ...Applicant vs. The State of Maharashtra ...Respondent Mr.S.V.Marwadi a/w Ms Seema Patil for the applicant Mr.Y.M.Nakhawa A.P.P. for State CORAM: A.S.OKA,J. DATE ON WHICH SUBMISSIONS ARE HEARD: MAY 8,2009 DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 15TH JUNE 2009 JUDGMENT: 1.The applicant has been arraigned as an accused in a Sessions Case. F.I.R. was registered by Vile Parle police station, Mumbai at the instance of one Inspector Mr.T.S.Gaikwad for offences under sections 304, 427, 325 and 323 read with section 34 of the Indian Penal Code. The case of the prosecution is that in the year 1983 a building by name Pravin Smriti was constructed by M/s.V.R.Associates. After completing the construction of the building, possession of the flats was handed over to the flat purchasers in the year 1986. On 16th August 1997, late in the night the said building collapsed which resulted into loss of lives and injuries to several persons. The allegation is that while carrying on the construction, inferior quality of construction material was used. Offence was registered at Vile Parle police station. The Investigating officer obtained opinion of Mr.R.N.Raikar, Structural Consultant. The said consultant submitted an opinion. In the opinion, fault was found with Architect of the building Mr.Bharat Gandhi and also with the applicant who was the R.C.C. consultant of the building. The Structural Consultant opined that the foundation of the building was weak. He opined that the structural design of the building was not strong enough to bear the load of six floors. The said Structural Consultant opined that the Architect Mr.Bharat Gandhi and the applicant did not take proper care and there were defects in the structural design of the building. The present applicant applied for discharge before the Sessions Court. The present applicant and Mr.Bharat Gandhi Architect jointly made an application which came to be rejected by order dated 10th July 2006. A revision application was preferred by Mr.Bharat Gandhi, a co-accused which was partly allowed by this court by order dated 26th November 2006. This court held that Mr.Gandhi Architect stands discharged in so far as offence alleged under section 304 of the Indian Penal Code is concerned. The present applicant made a fresh application for discharge before the Sessions Court. By the impugned order dated 14th July 2008, the said application was rejected. 2. The learned counsel for the applicant at the outset stated that he is confining his challenge in this revision 2 application to the charge under section 304 of the Indian Penal Code. He submitted that even assuming that the allegations made by the prosecution are true and correct, section 304 of the IPC is not attracted. The learned A.P.P supported the impugned Judgment and Order by pointing out that the question whether the offence under section 304 of the IPC is attracted or not is a matter of evidence.He submitted that no interference is called for. 3. I have carefully considered the submissions. Section 304 of the IPC is attracted when allegation is of commission of culpable homicide not amounting to murder. Section 299 of the IPC provides that a person causing death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause or with the knowledge that he is likely to cause death commits the offence of a culpable homicide. Section 304 of the IPC is attracted where culpable homicide not amounting to murder is committed provided the act by which death is caused is done with intention of causing death or of causing such bodily injury as is likely to cause death. Section 304 is attracted even if act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. 4. The allegations against the applicant are based on report submitted by Mr.Raikar that the structural designs of the building prepared by the petitioner were defective. Mr.Raikar expressed an opinion that there were defects in the structural designs of the building. There are three findings recorded by the said structural designer in his report which are against the applicant. The said findings contained in clause (a), (d) and (f) of the paragraph 14 of the report submitted by Mr.Raikar which read thus : 14(a) "It is an unsually tall structure compared to its width i.e. 16'6" width and 68" height including lift shall, the total height is 75". this important tall structure consideration is overlooked in structural design..." It was further found in 14(d) that :- . "This narrow structure had unusually large projecting lift machine room with overhead tank adjacent to it. This, in fact has thus turned out to be unusually "heavy top loaded structure on one side". Such structures are vulnerable to malfunctioning unless more than adequately provided with sound framing and bracing system. These essential requirements were lacking in the structural system provided for the building. Likewise in paragraph 14(f) it is mentioned that :- . "6" wide columns with round mild steel reinforcement for the same is considered in the design, where as slabs and beams are with tor steel provisions. This unusual". 3 5. Thus, the allegation against the applicant is that there were defects in the structural designs of the building prepared by the petitioner which led to the collapse of the building. In short, the allegation is of negligence while preparing the structural design of the building. 6. Taking the said allegations as proved, it is impossible to say that the default or negligence on the part of the applicant was committed with the intention of causing death or of causing such bodily injury as is likely to cause death. It cannot be said that the negligence or default on the part of the applicant has been committed with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injuries as is likely to cause death. Therefore, by no stretch of imagination a charge under section 304 of the IPC can be framed against the applicant . Taking the allegations against the applicant as proved,a charge under section 304 (A) of the IPC may be attracted. It must be borne in mind that the allegation is that one of the reasons for collapse of the building is use of inferior quality of material. The building collapsed eleven years after the same was occupied. Taking the prosecution case as correct, the knowledge and/or intention required by section 304 of the IPC cannot be even inferred. In the circumstances, application must succeed in part. 7. Hence, I pass the following order : i) Impugned order dated 14th July 2008 is modified. ii) The applicant stands discharged from the case to the extent to which he is sought to be proceeded against under section 304 of the Indian Penal Code. It is clarified that charge under section 304-A of the Indian Penal Code is attracted. iii) Revision application is partly allowed in above terms. JUDGE