JUDGMENT :

Sikri, J.

1. This appeal by certificate of fitness granted by the Bombay High Court under Article 134(1)(c) of the Constitution is directed against its judgment dated December 18, 1964, affirming the conviction of the appellant under Section 304A of the Indian Penal Code, and enhancing the sentences. The Sessions Judge had sentenced the appellant to rigorous imprisonment for 18 months and to pay a fine of Rs. 1000 or in default to undergo further rigorous imprisonment for six months, under Section 304-A. Indian Penal Code. The High Court enhanced the sentence to two years rigorous imprisonment and enhanced the fine to Rs. 3000. The appellant was also convicted under Sections 338 and 337 Indian Penal Code. The sentences under these section were also enhanced by the High Court but as the substantive sentences were made to run concurrently, it is not necessary to mention them.

2. The principal question which arises in this appeal is whether on the facts found by the High Court the conviction of the appellant under Section 304-A, Indian Penal Code, is right. This will involve consideration of the meaning to be ascribed to the words "negligent" and "rash" in Section 304A Indian Penal Code.

3. The facts in brief are as follows: On Sleater Road, Bombay, there is a building known as "Patel Building" which consists of four blocks designated as A', B', C', and D' blocks. On the ground floor of part of B' block and the whole of C' block there are a Restaurant and a Bakery, which are run in the name of "English Bakery and Restaurant". There are residential premises on the first floor and the second floor of the building which are let out to tenants. On the eastern side and the western side of the middle blocks B' and C', there are gutter-passage or gullies. At the back of the restaurant and the bakery there is a bhatti consisting two ovens for baking bread, cakes, etc., and lot the passage of smoke and gases from the bhatti there is a duct which is joined to the chimney which is erected outside alongside the eastern wall of the C' Block in the gutter-passage between blocks C' and D'. This English Bakery and Restaurant was a partnership concern consisting of original Accused 1, Behram Rustom Irani, and the appellant.

4. On the night between 15th and 16th April, 1962, the chimney of the bakery collapsed and 11 persons were killed, two persons suffered grievous injuries and seven persons received hurts. The appellant was accordingly charged on three counts: first, for having caused the death of 11 persons by doing rash or negligent acts not amounting to culpable homicide, to wit, structurally altering the height, the flue and the plastering of the chimney in such defective manner that the said chimney did collapse on the night between 15th and 16th April, 1962, and he thereby committed an offence punishable under Section 304-A; secondly, for causing grievous hurt to two persons; and thirdly, for causing hurt to seven persons.

5. The construction of the chimney has a history. It was first altered in 1954 without obtaining the permission of the appropriate authorities, but a plan, Ex. 82, was submitted and regularised. In 1957, the chimney was again altered, again without any permission. On a statutory notice, Ex. 85, being given, plans were forwarded and the construction regularised. According to the plan, Ex. 87, there were two ovens and the topmost portion of the chimney was of one foot diameter. The bore of the brick-portion of the chimney was 12 X 12 square and in this square hole the iron pipe with a diameter of 12 was put on the top of it and was not imbedded in the brick-masonry, and was supported by guy-ropes. The brick-masonry was raised from 10 feet to 50 feet and the overall length of the chimney was 65 feet from the ground level.

6. In 1962, the third alteration was carried out and it is because of this alteration that the unfortunate occurrence took place. As usual no plan was submitted to any of the concerned authorities. A