Public Prosecutor vs Pitchaiah Moopanar alias Pitchaiah Pillai

Krishnaswamy Reddy, J.—This appeal has been preferred by the Public Prosecutor against the order of acquittal of the respondent by the

Sessions Judge, Madurai, in C. A. No, 103 of 1985 by his judgment dated 18-2-1966, setting aside the conviction and sentence imposed by the

Special Additional First Class Magistrate, Madurai, in C. C. No. 1 of 1964 under Sections 304-A, 337, 338 and 290, I, P. G.

The prosecution case is briefly this: The respondent Pitchiah Moopanar was the Manager and correspondent of the Saraswathi Higher

Elementary School, Maninaga-ram Second Street, Madurai. At about 12 noon on 4-4-1964, a portion of the building collapsed while classes

were being held in the school resulting in the death of 35 girl students and a middle aged woman. Further, 16 students sustained grievous injuries

and 142 students sustained simple injuries. A cow and two calves died, and one cow was injured. The Collector of Madurai directed P. W. 215

Sri. Jayapalan, Executive Engineer, to inspect the building and submit a report as to the cause for the collapse of the ouilding. An enquiry was also

held by the Revenue Divisional Officer, Madurai. Certain broken pieces of brick masonry construction were examined by P. W. 214 Sri.

Muthukumaran, Research Officer at the Research Laboratory of the Soil Mechanics and Research Division of the Public Works Department and

he gave his opinion. After receiving the report of P. W. 215, based upon the report of P. W. 214, the Inspector of Police, B. North Circle,

Madurai, fifed a charge-sheet against the respondent under Sections 304-A, 336, 337, 338, 288 and 290 read with 109 I.P.C.

It is the case of the prosecution that the respondent who was the Manager of the said school was responsible for the roper upkeep and

maintenance of the building in which the school was being conducted and that he had not exercised that amount of reasonable care expected of him

in constructing and maintaining the building. The respondent had taken on lease the vacant portion around a Samathy on a monthly rent of Rs. 7

from P. W. 205 Karappan Chettiar to whom the site belonged and was conducting the school in tiled shed, Subsequently, he took permission from

P, W. 205 for constructing a double storeyed building on the site and after the building was constructed, an agreement was entered into between

the respondent and P. W. 205 that the respondent was to pay Rs. 250 per month as rent, that this amount was to be deducted from the value of

the building which was fixed at Rs. 32,000 and that after the entire amount is wiped out by adjustment of rent, P. W. 205 would become the

owner of the building,

The prosecution suggested that the res-pendent, with a view to make profit out of running of the school and since the building itself would not

belong to him after some time, got the building constructed with bad materials and without proper technical advice and assistance and in violation

of certain orders passed by the Municipality and thus was rash and negligent in putting up the building in a hurried manner without devoting any

care expected of a prudent man. It was also suggested that even after the construction of the building, he was not attending to the repairs of the

building then and there even when he had come to know that the building required immediate repairs.

The prosecution let in evidence to show that the respondent submitted a plan for the construction of building, prepared by P. W. 203

Meenakshisundaram an unlicensed Surveyor and after the plan was approved by the Municipality, he made deviations from the approved plan and

constructed the building and that in spite of notice to remove the deviations, he disobeyed the orders of the Municipality and completed the

construction hurriedly and that as a result, he was prosecuted and sentenced to pay fine. The prosecution has further tendered evidence that in

respect of the construction of the building, lime mortar used was prepared by the respondent himself, using almost double the quantity of sand that

would be mixed with lime and that he had not taken any technical advice whatever but constructed the building with the aid of Cooly masons.

Evidence was also tendered that the pillars, both in the ground floor and in the first floor were heavily overloaded that the excess load on the

masonry pillars had resulted in cracks to the building, that in spite of such cracks, no attempt was made by the respondent to take proper technical

advice even at that time and that he was callously indifferent to the safety to the building as well as the persons who used it. It is also the case of the

prosecution that besides the cracks on the walls of the building, in some places, the beams had sagged on account of over-loading and that

casuarina posts had been given as props to support the bent beams and that even then the respondent had not taken proper steps to ensure the

safety of the building.

The respondent contended that he had taken proper technical advice from one Nataraja Pillai, a Retired Assistant Town Planning Officer of

Madurai Municipality and after getting his advice, he entrusted the work of construction to the mason. P. W. 206 Ramaswamy Naidu deposed that

he was not a skilled person, that he was not responsible for mixing of mortar using more quantity of sand, that he was not supervising the

construction as he did not know the technique of construction and that the said Nataraja Pillai was supervising the construction. He further added

that he was effecting repairs whenever he was told about the necessary repairs to be done, that he did not construct the building with profit motive,

that the immediate cause of the fall was really the action of a mason who tampered with a pillar which required repairs and that he was neither rash

nor negligent in the construction of the building or its upkeep. The respondent examined nine witnesses to substantiate his case.

The learned Magistrate, after hearing the evidence tendered by the prosecution found that the respondent constructed the building at a cheap

cost with a profit motive and without taking proper technical advice and that that itself would be a rash and negligent act and, therefore, convicted

the respondent

On appeal, the learned Sessions Judge acquitted the respondent by his well-reasoned judgment after having discussed all the points raised by

both sides. He ultimately found that the respondent was not a skilled person that he had to depend upon the mason for the construction of the

work and that the respondent could not have known as to what kind o� mortar and what quantity of mortar should be used as it was not within

his knowledge. The learned Judge accepted the version of the respondent that the work has done by the mason Ramasami Naidu (P. W. 206) and

that the respondent could not be held liable for the rash and negligent act. The learned Sessions Judge also found that the respondent would not

have constructed the building in a hurried manner by using bad materials as he had put his own money spending a sum of Rs. 32,000 for the

purpose of occupying it at least for ten years, so that the amount spent by him could be wiped out by adjustment of rent for ten years.

There cannot be any doubt that the building collapsed as a result of which, unfortunately 35 school children died and several others were

injured. The main question is whether the collapse of the building was due to the rash or negligent act of the respondent. The learned Public

Prosecutor reiterated the same points urged on behalf of the prosecution before the appellate Court, but stressed before me that the act of the

respondent in not having attended to immediate repairs by taking technical advice after having come to know that it required such repairs should be

held to be a rash and negligent act on his part. He relied upon the evidence of P, W. 208 Paramanandam, the carpenter. P. W. 208 stated that a

few months before the collapse of the school building the respondent sent for him to inspect the beams of the building. He found one beam of the

ground floor and one beam of the first floor bent,

X X X X x

It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance o� the

masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the

lime mortar in proper proportions, the respondent could not be made liable for the negligence of those persons who actually constructed the

building, who are supposed to be skilled. The respondent is a layman. He, therefore, cannot be held liable for the negligence of the persons who

actually constructed the building which negligence is the cause causans for the collapse of the building.

In Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, it is held that death must be direct result of the rash or negligent act of

accused and the act must be efficient cause without intervention of another''s negligence, and it must be the cause causans, and it is not enough that

it may have been the cause sine qua non.

In the result, I find, taking an all round view of the case, that the prosecution has not established beyond reasonable doubt that the school

building collapsed causing the death of several persons and Injuries to several others by the rash and negligent act of the respondent. In any event,

I do not see any compelling reason to reverse the order of acquittal, by the learned Sessions Judge.

It is of course unfortunate that several school children died as a result of the collapse. If the Municipal authorities had taken care to inspect the

building periodically being a public institution, this unfortunate incident could have been probably avoided. It is gratifying to note that immediately

after this incident, the State has brought a legislation to control and regulate the construction, upkeep and maintenance of the public buildings. It is

at least expected in future that the authorities concerned would be vigilant and Jake that much of the care expected of them to inspect the buildings,

wherein public institutions are housed, and, if they find such buildings are unsafe, to take immediate appropriate action as they deem fit.

The appeal is dismissed.