Crl. Rev. NO.1117/2011 15/9/2011 The impugned order dated 5.7.2003 of the Court below is under challenge in this Criminal Revision by the accused. By that order the Court below has refused to discharge the accused, who has been directed to tried under Section 336 IPC. The remaining part of the order is in favour of the revisionists. I have heard the learned counsel for the revisionists who has argued that the accused are not guilty of the offence under Section 336 IPC, because the cracks developed in the house on account of earthquake and not because of the faulty construction or use of sub-standard material in the constructions by the part of the accused. This is a pure question of fact which has to be decided on the basis of evidence yet to lead at the trial, and cannot be decided at this stage. If the argument of the accused is accepted, it would be mean that prosecution is to be shut out from leading evidence, which does not appear to be desirable. It is quite possible that on the evidence lead, it may be found that the houses constructed by the revisionists developed cracks, while other houses in the vicinity remained intact, which will corroborate the charge of poor quality of construction. How quake-proof the construction of the houses was required to be, having regard to the seismic zone in question, also has to be considered. The plea of earthquake, its intensity and its impact, is a defence plea which cannot be considered at this stage without evidence, including cross examination. In the circumstances, I am not inclined to interfere in this revision. It is dismissed. (Sushil Harkauli) Acting Chief Justice YS/AK