15 December 1964
Supreme Court


Case number: Appeal (crl.) 67 of 1963






DATE OF JUDGMENT: 15/12/1964


CITATION:  1965 AIR 1616            1965 SCR  (2) 622  CITATOR INFO :  F          1968 SC 829  (12)  D          1968 SC1319  (48)  R          1972 SC1150  (8)

ACT: Rash and negligent act-To be punishable It must be proximate cause  of  death-Lighting fire and  storage  of  combustible material against conditions of license-Danger to human  life caused  thereby whether ’probable’-Indian Penal  Code,  1860 (Act 45 of 1860), ss. 304A and 285.

HEADNOTE: The appellant was the manager and working partner of a  firm which  manufactured  paints and varnish.   The  factory  was licensed by the Bombay Municipality on certain conditions to manufacture  paints  involving a cold process and  to  store certain  specified  quantities of  turpentine,  varnish  and paint.  The factory did not have a license for manufacturing wet paints but nevertheless manufactured them.  Four burners were used in the factory for the purpose of melting rosin or bitumen  by  heating them in barrels and  adding  turpentine thereto  after  the  temperature cooled down  to  a  certain degree.   While this unlicensed process was going  on  froth overflowed out of the barrel and because of heat varnish and turpentine,  which  were stored at a short  distance  caught fire,  as  a  result  of  which  seven  workmen  died.   The appellant  was prosecuted and convicted under ss.  304A  and 285  of the Indian Penal Code.  His appeal before  the  High Court having been summarily dismissed he came to the Supreme Court by special leave. HELD : (i) The appellant was not guilty under s. 304A.   The mere fact that be allowed the burners to be used in the same room  in  which  varnish and turpentine  were  stored,  even though  it would be a negligent act, would not be enough  to make the appellant responsible for the fire which broke out. The  cause  of the fire was not merely the presence  of  the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly  responsible for  the  fire  which broke out  What s.  304A  requires  is causing of death by doing any rash or negligent act and this means  that death must be the direct or proximate result  of the  rash or negligent act.  From the facts of  the  present



case it appeared that the direct and proximate cause of  the fire  which resulted in seven deaths was the act of  one  of the workmen in pouring the turpentine too early and not  the appellant’s  act  in  allowing the burners  to  bum  in  the particular room. [626 E-G] Emperor V. Omkar Rampratap, (1902) IV Bom.  L.R. 679, relied on. (ii) The  appellant was however guilty under s. 285  of  the Penal Code inasmuch he knowingly and negligently omitted  to take such order with the fire and combustible matter in  his possession  as was sufficient to guard against any  probable danger to human life from such fire and combustible  matter. His  manufacture  of  wet paints was  without  the  required licence; the fire in question was not authorised as required by the general conditions of his licence, and it was lighted in  the  proximity  of turpentine and  varnish  against  the special  conditions  of his licence.  The mere fact  that  a similar  accident had never taken place before in  the  same conditions  did  not  prove that the danger  to  human  life caused thereby was not ’probable’. [629 D-F] 623

JUDGMENT: CIVIL  APPELLATE  JURISDICTION  :  Criminal  Appeal  No.  67 of1963. Appeal  by special leave from the judgment and  order  dated April  8, 1963 of the Bombay High Court in  Criminal  Appeal No. 433 of 1963. S.   T.  Desai, J. B. Dadachanji, O. C. Mathur and  Ravinder Narain, for the appellant. S.   G. Patwardhan, B. R. G. K. Achar, for R. H. Dhebar, for the respondent. The Judgment of the Court was delivered by Wanchoo,  J. This appeal by special leave against the  judg- ment of the Bombay High Court raises questions regarding the interpretation  of S. 304-A and S. 285 of the  Indian  Penal Code.   The facts are not now in dispute and may be  briefly set  out as found by the courts below.  The appellant  along with  three  partners is the owner of a  factory  styled  as Carbon  Dry  Colour  Works  which  manufactures  paints  and varnish.    The   factory  was  licensed   by   the   Bombay Municipality   in  the  year  1953  to  manufacture   paints involving a cold process and was located at 79/81 Jail Road, Dongri.   The factory was also licensed to store 455  litres of  turpentine, 455 litres of varnish and 14000  gallons  of paint.  The licence was issued subject to certain conditions to which we shall refer later.  The appellant is the manager and working partner.  He converted the factory from the cold process  of  manufacturing  dry  paints  to  a  process   of manufacturing wet paints by heating.  For that purpose  four burners  were  used  for the purpose  of  melting  rosin  or bitumen  by  heating them in barrels over  the  burners  and adding turpentine thereto after the temperature cooled  down to  a certain degree.  On April 20, 1962, this  process  was going   on  in  the  factory  which  had  no   licence   for manufacturing wet paints through heating.  Hatim Tasduq  was the  person looking after the operation.  According  to  him the  rosin was melted on one burner and lime was  added  and the whole thing was boiled for half an hour.  Thereafter the burner  was extinguished and the barrel in which  the  rosin was melted was allowed to cool.  This began at about 4  P.m. The barrel in which the rosin is melted is about 4 /12  feet high and after the temperature comes down to a certain level



turpentine  is added in the barrel to prepare  Black  Japan. Hatim Tasduq takes a drum X of 5 gallons of turpentine which is  poured  into the barrel.  As turpentine is  poured,  the mixture begins frothing and in order to keep down the  froth the  whole  thing is stirred all the time.   One  man  helps Hatim Tasduq in this operation.  On April 624 20,  1962,  rosin was melted and the barrel was  allowed  to cool down from 4 P.m. At about 5 P.m. Hatim started  pouring turpentine,  into  the barrel.  It may be mentioned  that  5 P.m.  is  the  closing  time  and  the  process  of  pouring turpentine  started  just  about that.   As  soon  as  Hatim started  pouring  turpentine  the mixture  began  to  froth. Hatim  was unable to stir as according to him his  assistant had  gone  some distance and he could not give the  drum  of turpentine  to him so that he might stir the  mixture.   The result  was  that  forth overflowed out of  the  barrel  and because  of heat, varnish and turpentine, which were  stored at a short distance, caught fire.  Seven men were working in a  loft which is reached by a ladder and where  manufactured paint  is  stored.  The material in the  premises  being  of combustible nature, the fire spread rapidly.  Those who were working  on the ground-floor managed to get out  with  burns only  but those who were working in the loft could  not  get out  in  time with the result that all seven  of  them  were burnt to death.  The fire-brigade was sent for, but in  view of the combustible nature of the material stored it took  21 hours  to bring the fire under control.  After the fire  was controlled,  bodies of four workmen were recovered the  same night.   Next morning two more bodies were recovered and  in the  afternoon one more body was found.  Thus seven  of  the workmen lost their lives while seven other workmen  suffered bums  and were sent to hospital where they were  treated  as indoor patients.  It may be mentioned that the appellant was not present on the premises when the fire took place, though he  came there as soon as the information about  it  reached him. These  facts have been found by courts below to  be  proved. Originally the other three partners were also prosecuted but the  Magistrate  acquitted  them as the  appellant  was  the managing  partner and was directly in-charge of work in  the factory.   On these facts the appellant was convicted  under s.  304-A and s. 285 of the Indian Penal Code and it is  the correctness  of that conviction which is being  assailed  in the  present  appeal.  The appellant appealed  to  the  High Court   but  his  appeal  was  summarily   dismissed.    His application  for leave to appeal to this Court  having  been refused,  he  came  to this Court and  was  granted  special leave.               We  shall  first take up s. 304-A  which  runs               thus :-               "Whoever  causes  the death of any  person  by               doing any rash or negligent act not  amounting               to  culpable homicide shall be  punished  with               imprisonment of either description for a  term               which  may extend to two years, or with  fine,               or with both." 625 The  main  contention of the appellant is that  he  was  not present  when the fire broke out resulting in the  death  of seven  workmen  by burning and it cannot therefore  be  said that he caused the death of these seven persons by doing any rash or negligent act.  The view taken by the Magistrate  on the  other hand which appears to have been accepted  by  the High Court was that as the appellant allowed the manufacture



of wet paints in the same room where varnish and  turpentine were  stored and the fire resulted because of the  proximity of the burners to the stored varnish and turpentine, he must be  held responsible for the death of the seven workmen  who were  burnt  in the fire.  We are -however of  opinion  that this  view of the Magistrate is not correct.  The mere  fact that  the  appellant allowed the burners to be used  in  the same room in which varnish and turpentine were stored,  even though  it might be a negligent act, would not be enough  to make the appellant responsible for the fire which broke out. The cause of the fire was not merely the presence of burners in  the  room in which varnish and turpentine  were  stored, though this circumstance was indirectly responsible for  the fire which broke out.  But what s. 304-A requires is causing of death by doing any rash or negligent act, and this  means that  death  must be the direct or proximate result  of  the rash  or  negligent  act.  It appears  that  the  direct  or proximate  cause of the fire which resulted in seven  deaths was  the act of Hatim.  It seems to us clear that Hatim  was apparently in a hurry and therefore he did not perhaps allow the  rosin to cool down sufficiently and  poured  turpentine too quickly.  The evidence of the expert is that the process of adding turpentine to melted rosin is a hazardous  process and  the proportion of froth would depend upon the  quantity of  turpentine  added.   The  expert  also  stated  that  if turpentine  is not slowly added to bitumen and rosin  before it  is  cooled down to a certain temperature, such  fire  is likely to break out.  It seems therefore that as  turpentine was  being  added at about closing time, Hatim  was  not  as careful  as  he should have been and probably did  not  wait sufficiently  for  bitumen or rosin to cool down  and  added turpentine too quickly.  The expert has stated that  bitumen or rosin melts at 300 degree F and if turpentine is added at that  temperature, it will catch fire.  The flash  point  of turpentine  varies  from 76 to 110 degree F.  Therefore  the cooling  must be brought down, according to the  expert,  to below  76 degree F to avoid fire.  In any case even if  that is not done, turpentine has to be added slowly so that there may  not be too much frothing.  Clearly therefore  the  fire broke  out because bitumen or rosin was not allowed to  cool down  sufficiently and turpentine was added too  quickly  in view of the fact that the process was performed at closing 626 time.   It is clearly the negligence of Hatim which was  the direct  or proximate cause of the fire breaking out,  though the  fact that burners were kept in the same room  in  which turpentine,   and   vamish  were   stored   was   indirectly responsible  for  the  fire breaking out  and  spreading  so quickly.  Even so in order that a person may be guilty under s. 304-A, the rash or negligent act should be the direct  or proximate  cause of the death.  In the present case  it  was Hatim’s act which was the direct and proximate cause of  the fire  breaking out with the consequence that  seven  persons were  burnt to death; the act of the appellant  in  allowing turpentine and varnish being stored at a short distance  was only an indirect factor in the breaking out of fire. We  may  in this connection refer to Emperor v.  Omkar  Ram- pratap(1)  where  Sir Lawrence Jenkins had to  interpret  s. 304-A and observed as follows --               "To impose criminal liability under s.  304-A,               Indian  Penal Code, it is necessary  that  the               death should have been the direct result of  a               rash  and  negligent act of the  accused,  and               that  act must be the proximate and  efficient               cause  without the intervention  of  another’s



             negligence.  It must be the cause causans;  it               is not enough that it may have been the  cause               sine qua non." This  view  has been generally followed by  High  Courts  in India  and is in our opinion the right view to take  of  the meaning of s. 304-A.  It is not necessary to refer to  other decisions,  for as we have already said this view  has  been generally  accepted.  Therefore the mere fact that the  fire would not have taken place if the appellant had not  allowed burners  to be put in the same room in which turpentine  and varnish were stored, would not be enough to make him  liable under  s.  304-A, for the fire would not have  taken  place, with  the  result that seven persons were  burnt  to  death, without the negligence of Hatim.  The death in this case was therefore  in our opinion not directly the result of a  rash or  negligent act on the part of the appellant and  was  not the  proximate and efficient cause without the  intervention of  another’s negligence.  The appellant must  therefore  be acquitted of the offence under s. 304-A.                This  brings  us  to s.  285  which  runs  as               follows               "Whoever  does, with fire or  any  combustible               matter, any act so rashly or negligently as to               endanger human               (1)   (1902) IV Bom.  L.R.679               627               life, or to be likely to cause hurt or  injury               to any other person,               or knowingly or negligently omits to take such               order with any fire or any combustible  matter               in  his possession as is sufficient  to  guard               against any probable danger to human life from               such fire or combustible matter,               shall be punished with imprisonment of  either               description for a term which may extend to six               months,  or with fine which may extend to  one               thousand rupees, or with both               We are in the present case concerned with  the               second part of               s.    285 which runs thus :               "Whoever  knowingly  or negligently  omits  to               take   such  order  with  any  fire   or   any               combustible  matter  in his possession  as  is               sufficient  to  guard  against  any   probable               danger  to  human  life  from  such  fire   or               combustible matter, shall be punished........" The  question  is whether the appellant on the  facts  which have  been proved knowingly or negligently omitted  to  take such order with fire or combustible matter in his possession as was sufficient to guard against probable danger to  human life  from  such  fire  or  combustible  matter.   In   this connection  we may refer to the fact that the appellant  did not  have  a  licence  for  manufacturing  wet  paints   and therefore  when he allowed wet paints to be manufactured  in the circumstances which have been proved, he must be held to have knowingly acted in a manner in which he should not have done.   There is a map on the record which shows  that  four burners were in one corner while turpentine and varnish were in another corner of the same room, and the distance between the  burners  and the stores was about 8 or  10  feet.   The licence for storage given to the appellant contained general and  special conditions.  One of the general conditions  was that  "the  licence shall not use or permit to be  used  any portion  of  the licensed premises for dwelling  or  cooking purposes  and  no fire shall be lighted therein  other  than



what is authorised." The articles stored being  combustible, this  general condition was imposed on the appellant and  he had  no business to light any fire in the room where  stores were  kept unless he was authorised to do so.  There  is  no proof that he was authorised to light any fire in that room; and  therefore, be acted in breach of the general  condition of  the licence which forbade him from lighting any fire  in the room where varnish and 628 turpentine  were stored.  We take it that when  the  general condition says that no fire would be lighted except what  is authorised, the intention must have been that the  municipal committee  will  take necessary steps to see that  the  fire would be sufficiently guarded, if lighted in the same  room, so  that  there  may  not be  any  outbreak  of  fire.   The appellant  clearly acted against this general  condition  of the  licence and must be held to have knowingly, or  at  any rate  negligently, omitted to take such order with any  fire or any combustible matter in his possession as was required. Further  the special conditions for keeping  turpentine  and varnish  and paints require that "no smoking, light or  fire in  any form shall be permitted at any time" in the room  in which paints, turpentine and varnish are kept or even in any premises licensed for storage unless in the case of a light, such  light  be duly protected and on no account  be  naked. The  appellant  clearly  committed breach  of  this  special condition  also in allowing the lighting of four burners  in the  same  room  without  taking  any  precaution  for  duly protecting  the  fire and even allowed it to be  naked.   It must  therefore  be held that the appellant  negligently  or knowingly  omitted  to take proper order with  the  fire  or combustible  matter  in his possession.  The  contention  on behalf of the appellant however is that even if he may  have negligently  or knowingly omitted to take proper order  with the  fire or combustible matter in his possession it  cannot be  said that his omission to take proper order was such  as was  insufficient  to guard against any probable  danger  to human   life.   What  is  urged  is  that  his  not   taking precautions may result in possible danger to human life  but it  cannot  be  said that this omission was  such  as  would result  in probable danger to human life.  In particular  it is urged that this method of work had been going on for some years and no fire had broken out and this shows that  though there may have been possible danger to human life from  such fire or combustible matter there was no probable danger.  We are  unable to accept this contention.  The fact that  there was  no fire earlier in X this room even though the  process had  been  going on for some years is not  a  criterion  for determining whether the omission was such as would result in probable danger to human life.  We have already pointed  out that  four  burners were in one comer of the  room  and  the combustible  matter was in another corner of the  same  room and  there was only a distance of 8 or 10 feet  between  the two.   The burners were lighted against the general as  well as the special conditions of the licence for storage granted to the appellant.  The proximity of naked fire to the stores of turpentine and varnish is in our opinion always a  matter of prob- 629 able  danger to human life, namely, the life of the  persons working in the room.  This was particularly so with  respect to turpentine which has a low point, i.e., 76 decree F to  1 10  degree  F  The use of naked fire  could  in  conceivable circumstances  even rase the temperature of the room  itself above  the flash point of turpentine and if  the  turpentine



ever  happened  to be exposed it might  easily  catch  fire. There was in our opinion therefore always a probable  danger to  human  life by the appellant  negligently  or  knowingly omitting  to  take  proper care in the matter  of  the  four burners and turpentine and varnish.  His action in  allowing burners to be lighted in the room without any safeguard  did in  our opinion amount to omission to take such  order  with fire and combustible matter as would be sufficient to  guard against probable danger to human life.  We can only say that it  was  lucky that fire had not broken  out  earlier.   But there can be no doubt that the omission of the appellant  to take  proper  care  with burners  in  particular  when  such combustible  matter  as  turpentine in  large  quantity  was stored  at a distance of 8 to 10 feet from the  burners  was such  omission  as amounted to  insufficient  guard  against probable  danger  to human life.  Finally when  we  remember that all this was done in breach of the general and  special conditions of the licence given to the appellant for storage of turpentine, varnish and paints, we have no doubt that the appellant knowingly, or at least negligently, failed to take such order with fire and the combustible matter as would  be sufficient  to  guard against any probable danger  to  human life.   In  the  circumstances we are of  opinion  that  the appellant  has  been rightly convicted under s. 285  of  the Indian  Penal Code.  Considering that seven lives have  been lost  on account of the negligence of the appellant in  this connection,   the   sentence   of   six   months’   rigorous imprisonment which is the maximum provided under s.    285, cannot be said to be harsh. We  therefore partially allow the appeal and set  aside  the conviction  and sentence of the appellant under S. 304-A  of the  Indian Penal Code.  The appeal is dismissed so  far  as his  conviction  under S. 285 of the Indian  Penal  Code  is concerned.   The  appellant will surrender to  his  bail  to serve  the  remaining sentence under s. 285  of  the  Indian Penal Code. Appeal partly allowed. 630