A person cannot be held liable for the negligence of another person who is the actual cause of the damage.

JUDGMENT :- 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 1965 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. C.

2. The prosecution case is briefly this: The respondent Pitchiah Moopanar was the Manager and correspondent of the Saraswathi Higher Elementary School, Maninagaram 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 building. 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, filed a charge-sheet against the respondent under Sections 304-A, 336, 337, 338, 288 and 290 read with 109 I.P.C.

3. It is the case of the prosecution that the respondent who was the Manager of the said school was responsible for the proper 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 Karuppan 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 respondent, 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.

4. 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