Panaji: The persons who handled and operated the sparkler machines at Birch By Romeo Lane at Arpora were not arrested during investigation and the disparity in treatment of persons who were at the spot and those who were not goes in favour of the Luthra brothers, the Mapusa court observed while granting bail to Saurabh and Gaurav Luthra.“The persons who, on the case of the prosecution, handled and operated the machines at the spot, and who are alleged in the charge sheet itself to have had direct knowledge of the combustible interior and of the contact of the sparkles with the roof, were not arrested during the investigation,” said Addl Sessions Judge-1 North Goa, Mapusa, Dvijple V Patkar.“The case of the prosecution that the applicant (Luthras), who was in Delhi and is not alleged to have been at the spot, is more culpable than those persons rests on the proposition that ownership implies knowledge. I have already found that proposition insufficient for the purposes of Section 105 (Part II). The disparity in the treatment of the persons who were at the spot and those who were not is a circumstance which the prosecution has not explained, and which weighs in favour of the applicant when custody is considered,” the court said.“The charge sheet records the following. Accused no. 12 (Mayur Kolwalkar), the Director of K-Dance Events Pvt Ltd, was present at the spot on the day of the incident. Accused no. 13 (Mohammed Afif Abdulsab Bateri) its General Manager, was managing the event, operating the electronic sparkle machine, lighting and performing other related work. Both are charged under Section 105, with the allegation that they were fully aware that the deck was made of combustible material such as dry reed grass and bamboo, that acoustic foam was fixed beneath the metal roof, that the sparkles touched the roof every time, and that the establishment had a single entry-cum-exit; and that, with that knowledge, they intentionally used the machines. The charge sheet records the status of each of them as “without arrest”. It does not record that any other employee of K-Dance who handled the machines was arrested,” the court said.The material forming part of the chargesheet doesn’t show that the Luthra brothers knew that the use of sparkler machines in their establishment was likely to cause death of any person, the Mapusa court prima facie observed.The court said the Luthra brothers knew the machines were used but that material forming part of the chargesheet doesn’t show they authorised them or knew of any hazard in their use.The prosecution relied on the report of the directorate of fire and emergency services to link the sparkler machines with the fire but the court pointed out that the report must be read in full and that it states that the Department has no Special Forensic Fire Investigation team and is therefore “not in a position to determine the exact cause of fire”.The fire department described that during the demonstration held on January 5 a demo roof structure was installed inside a room of 3 m x 3m consisting tin sheets at upper level and cold pyro was operated continuously for thirty seconds at full speed during composite IT material and dark burn spots were found on the entire exposed surface of the acoustic form panel.The department then stated that “considering the findings of the demonstration seen alongside the video of the fire incident, the fire may have been triggered by fire sparklers used in the club”, and that “to ascertain the exact cause of fire, expert investigation team of the Forensic Department will be appropriate”.“The charge sheet itself records that examination reports are awaited from the forensic laboratories. It is not necessary for this court, and it would be inappropriate at this stage, to determine whether the sparklers were in fact the cause of the fire. I proceed on the footing most favourable to the prosecution, namely that the sparkler machines may have triggered the fire. The report does not go beyond that. It is expressed in terms of possibility by an authority which itself disclaims the competence to determine cause, and it expressly leaves the question to expert forensic analysis which has not yet been placed on record. The demonstrations were conducted after the incident, at the instance of the investigating agency, with materials and durations selected by it. They show that certain materials are affected by heat and spark particles when exposed to the machine. They do not show that the applicant knew of that hazard, or that the roof at the establishment was of such materials,” the court said.
