'No Mens Rea': Gujarat High Court Discharges Financier Of Collapsed Building Which Claimed 11 Lives In 2001 Earthquake

The Gujarat High Court discharged the financier of a building in Ahmedabad, for offence of culpable homicide and criminal conspiracy, booked after the building suffered severe damage in the 2001 earthquake in the State claiming 11 lives. In doing so the court said that charge-sheet did not disclose any evidence to suggest that the petitioner was either the owner, developer, or contractor of the construction. It further ruled that to invoke Section 304 IPC, prosecution had to prove existence of mens rea/intention that the act was likely to cause death which was not established herein. The petitioner who challenged an order rejecting discharge from offences under IPC sections 304 and 120B argued that he had no connection with the construction–Sangemarmar complex in Ahmedabad as he was merely a financier. It was contended that there was no material on record to indicate that the petitioner was in any manner engaged in the construction of Sangemarmar Complex.Petitioner argued that Sessions Court has committed a serious error in rejecting the discharge application by erroneously treating the petitioner as a builder and by impermissibly shifting the burden upon the petitioner to prove that he was not a builder, whereas the burden squarely lies upon the prosecution to establish such involvement.Justice Hasmukh D Suthar in his order said:"Having heard the learned advocates for the respective parties and upon perusal of the record, it prima facie emerges that the present applicant was merely a financier. The material on record further indicates that one Mr. Jagdishchandra Gordhandas Sodhan had obtained the requisite permissions, asserted ownership over the property, undertaken the construction of the flats, and executed the indemnity bond in his own capacity.Notably, the charge-sheet does not disclose any evidence to suggest that the present applicant was either the owner, developer, or contractor of the said construction. In order to invoke the provisions of Section 304 of the Indian Penal Code, the prosecution is required to establish the existence of mens rea, namely, knowledge or intention that the act was likely to cause death. In the present case, the building is stated to have collapsed due to a catastrophic earthquake after a considerable lapse of time since its construction. It cannot be ruled out that the structural integrity of the building may have been affected over time due to age, environmental factors, and the impact of the natural calamity".The court said that even if the case of the prosecution is accepted on face value, there is no material to indicate that the applicant had any knowledge or intention that such an unfortunate incident was likely to occur. "The essential ingredient of mens rea is thus conspicuously absent. It is a settled principle of law that where two views are possible on the basis of the material available on record, the view favouring the accused must be adopted at the stage of discharge," the court ruled.The plea challenged a sessions court order dated 03.12.2011 rejecting the petitioner's application for discharge. The case pertains to damage caused to Sangemarmar Complex situated at Ambawadi, Ahmedabad, during the devastating earthquake of 26.01.2001 measuring 7.9 on the Richter Scale, which caused widespread destruction across the State. The complex comprised of two wings containing nine flats and was constructed between 1989 and 1991. One wing consisting of four flats suffered severe damage, whereas the other wing remained unaffected. The land on which the complex was constructed originally belonged to one Shodhan, who had obtained the necessary permissions and undertaken the development and construction activities. The applicant had financed the superstructure construction and subsequently occupied one flat, while two other flats stood in the names of his wife and HUF. The record further indicated that permissions, municipal payments, electricity connections and ownership-related documents were in the name of Shodhan.Certain construction agreements executed in 1992 were entered into after completion of construction. The building had remained occupied and in use by all residents, including Shodhan, until the earthquake occurred in 2001.The petitioner submitted that the building in question suffered damage due to the high-intensity earthquake that occurred on January 26, 2001 which was a natural calamity. The structure comprised two wings connected by a common staircase and lift, consisting of five apartments in one wing and four in the other, and certain portions were damaged. The construction had commenced in 1989 and was completed in 1991, nearly a decade prior to the earthquake. Therefore, the damage cannot be attributed to any alleged act or omission on the part of the petitioner. State opposed the present application and submitted that the petitioner is specifically named in the FIR and has played an active role not only in financing but...

'No Mens Rea': Gujarat High Court Discharges Financier Of Collapsed Building Which Claimed 11 Lives In 2001 Earthquake

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'No Mens Rea': Gujarat High Court Discharges Financier Of Collapsed Building Which Claimed 11 Lives In 2001 Earthquake

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