CR.A/247/1989 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 247 of 1989 WITH CRIMINAL APPEAL No. 248 of 1989 To CRIMINAL APPEAL No. 254 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant(s) Versus BHUPENDRA C SHAH & 1 - Opponent(s) ========================================================= Appearance : MR AJ DESAI ASST. PUBLIC PROSECUTOR for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 24/06/2008 ORAL JUDGMENT 1. All these appeals arise out of common judgment and order, and hence, they are taken up for final hearing together and are disposed by the CR.A/247/1989 2/7 JUDGMENT common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the learned Additional Sessions Judge, Surat(for short 'Appellate Court') dated 4th January, 1989 passed in Criminal Appeal No. 76 of 1983 as well as Criminal Appeal Nos.84 to 90 of 1983 whereby the appellate Court was pleased to quash and set aside the judgment and order of the learned 4th Joint J.M.F.C., Surat (for short 'trial Court') dated 08.08.1983 passed in Criminal Case Nos.3209 to 3215 of 1981 as well as Criminal Case Nos.3279 to 3285 of 1981 whereby the trial Court convicted opponent No.1 and one late Shri. Prakashchandra Bhaichand Shah for the offence punishable under Section 68(A) of the Factories Act and sentenced them to undergo rigorous imprisonment for one month for each case and to pay fine of Rs.2,000/- and in case of default to undergo imprisonment for a period of seven days. The aforesaid sentences were ordered to run concurrently. CR.A/247/1989 3/7 JUDGMENT 3. The brief facts of the case are that, at the relevant point of time, opponent No.1 was running a factory in the name of Shantinath Silk Mills in which late Shri. Prakashchandra Bhaichand Shah i.e. original defendant No.1 was working as manager. The said factory was established under the provisions of Section 2(M)(1) of the Factory Act, 1948. On 09.07.1981, the building of the said factory collapsed. On account of the said accident, several workers got trapped into the debris of the factory and died and several others got injured. On coming to know about the aforesaid incident, opponent No.2, herein, visited the place of accident and at that time he came to know that opponent No.1 was employing the workers who were not adult, without following the due procedure prescribed under the Factories Act, 1948. Therefore, opponent No.2 filed various complaints / cases against opponent No.1 and original defendant No.1 alleging that some of the workers employed by them were not adult. Then, the trial Court heard all the parties and convicted and sentenced opponent No.1 as well as original defendant No.1, as stated in Para-1 of this judgment. CR.A/247/1989 4/7 JUDGMENT 4. Being aggrieved and dissatisfied with the judgment and order of the trial Court, opponent No.1, herein, and original defendant No.1 preferred various appeals. During the pendency of those appeals, original defendant No.1-Shri. Prakashchandra Bhaichand Shah passed away. Hence, the appeals qua original defendant No.1 stood abetted. Thereafter, the learned Appellate Court allowed the appeals preferred by opponent No.1 by quashing and setting aside the conviction of opponent No.1 imposed by trial Court. Hence, the present appeal. 5. Learned APP for the appellant-State has submitted that the appellate Court ought to have held that Adhikantha Patnaik was workman of opponent No.1. 5.1 He has submitted that appellate Court has committed an error by holding that the seven workmen who were below age of eighteen years were required to be examined. CR.A/247/1989 5/7 JUDGMENT 5.2 He has further submitted that the appellate Court ought to have drawn adverse inference against opponent No.1 since he (opponent No.1) failed to produce the fitness certificate of a surgeon regarding seven young workmen employed by him. 6.0 Heard. I have gone through the judgment and order of the trail Court and appellate Court as well as record of the appeal. It was the case of the prosecution before the trial Court that opponent No.1 was employing workmen below age of eighteen years without obtaining certificate of fitness of such persons issued by a surgeon, and hence, opponent No.1 has committed offence punishable under Section 68(A) of the Factories Act. From the record it clearly transpires that opponent No.2 has no personal knowledge about the incident in question and that opponent No.2 had rushed to the place of incident after he received the news of the fateful accident. Thus, it becomes amply clear that opponent No.2 himself has not CR.A/247/1989 6/7 JUDGMENT witnessed the incident. So far as the aspect of employing the seven employees who were below the age of eighteen years is concerned, opponent No.2 has not produced any documentary evidence in support of his case. It is required to be noted that in support of its case prosecution has examined only one witness Adhikandha Patnaik. But, prosecution has failed to produce any documentary or oral evidence of any other witness to establish the fact that the said Adhikandha Patnaik was working in the mill run by opponent No.1. Same is the case with the other six workmen who are alleged to be have been below the age of eighteen years and are alleged to have been employed by opponent No.1. The prosecution has not led any evidence either documentary or oral to show that the aforesaid seven persons were working in the mill run by opponent No.1 and that they received any injury on account of accident in question. Hence, when the prosecution is not in a position to establish the basic fact that the aforesaid seven persons were working in the mill run by opponent No.1 and that they received injuries on account of the accident in question, opponent No.1 cannot be said to have CR.A/247/1989 7/7 JUDGMENT committed offence punishable under Section 68(A) of the Factories Act. It may also be noted that the incident in question took place in the year 1981, in other words all most about 26 years have passed from the date of incident. Hence, it would not be appropriate to disturb the findings of the appellate Court which are just and proper. Hence, I am of the opinion that these appeals deserve to be dismissed. 7.0 In the result, these appeals stand dismissed. (M.D. Shah,J.) Umesh/