- (1.) This appeal by special leave against the judgment 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 it 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 14,000 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 meeting 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 1/2 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 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 20, 1962, rosin was melted and the barrel was allowed to cool 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 froth 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 2 1/2 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 burns 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.
(2.) 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 incharge 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.
(3.) 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 terra which may extend to two years, or with fine, or with both." 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 set 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 or 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 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 varnish 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.;