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. 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. According to the appellant, he asked mason Gunaji Daulat Lad, PW 8, to remove the iron pipe, which had corroded, and to bring the height of the chimney to 65 feet, as shown in the plan, Ex. 87. According to him; "I therefore sought advice from my friends in the bakery trade who had carried out such work in their own bakeries. 87. According to him; "I therefore sought advice from my friends in the bakery trade who had carried out such work in their own bakeries. At their suggestion I entrusted the work of the repairs of the oven and the chimney to witness Gunaji Daulat Lad as I was informed that he had 40 years experience in building ovens and had built and repaired a number of bakery chimneys and he would do a perfect job. Witness Lad assured me that he had done numerous similar jobs in the past. He took me to some of the bakeries in respect of whose oven and chimneys he had previously carried out works. Being assured of his abilities and experience, I asked him to carry out the work of alterations plastering the chimney of my bakery in the best possible manner so that I may be able to satisfy the authorities that there would be no room for complaint and that licence can be issued to me. He advised me that for the top of the chimney AC pipe be used instead of iron pipe as the iron pipe corrodes in a short time and becomes useless while AC pipe would last very much longer and would look decent and serve useful purpose. Having myself seen a number of bakeries having AC pipes at the top of their chimneys, I trusted in the advice of the witness and entrusted him the work of carrying out the repairs to the chimneys and ovens and also plastering the brick masonry which already existed. I gave the necessary monies for the purchase of the materials to witness Lad who brought the same including the AC pipe. Witness Lad carried out the work in March 1962. The work of repairing the oven was also carried out but remained incomplete as stated hereafter." The appellant further added that as witness Lad had stated to him that that was only a minor job and he was competent to carry it out, he trusted Lad and his experience. The appellant further stated that he had asked witness Lad whether the appellant should completely keep the bakery closed but Lad said that there would no objection if he worked the bakery as usual (early in the morning before the work of repairs began and in the evening after repair work had stopped). 7. The appellant further stated that he had asked witness Lad whether the appellant should completely keep the bakery closed but Lad said that there would no objection if he worked the bakery as usual (early in the morning before the work of repairs began and in the evening after repair work had stopped). 7. But Gunaji Lad does not support him completely. According to Gunaji, some employee of the appellant gave him the cement pipe. He raised the height of the chimney by 10 feet and put a cement pipe on that. He described the method of construction thus :- "While I was raising the height of the new brick-work by 10 feet, I was slowly reducing the size of the flue till I brought it to seven inches square. Then on this flue of 7 inches square, I placed four iron pattis on the four sides partly on the brick-work and partly on the flue thus further reducing the dimensions of the flue five inches square. On these iron pattis, which were fixed in cement in the brick work I placed the six inch diameter pipe; and raised the square brick structure to a further height of one foot around the cement pipe and then covered up the cement pipe by giving a conical shape to the brick-structure upto a further height of 1½ feet. While placing the cement pipe on the iron pattis, I filled up the gaps at the four corners with brick and cement and then built up all round the pipe upto the height of one foot; and thereafter covered the pipe to a further height of 1½ feet by giving it a conical shape. The whole brick-work of 2½ feet round the pipe was sticking to the pipe." He asserted that there was no hollow or pocket anywhere round the pipe. Gunaji Lad further stated that while the masonry work was being carried out, the bhatti was not working, but it was working both in the morning and in the night, before the work was started and after the work was completed. 8. Even while the chimney was being altered, one Mr. Samtani, Sub-Engineer, inspected the chimney and reported that the height of the chimney was raised by about 10 feet. This was done without obtaining prior municipal permission. 8. Even while the chimney was being altered, one Mr. Samtani, Sub-Engineer, inspected the chimney and reported that the height of the chimney was raised by about 10 feet. This was done without obtaining prior municipal permission. A notice under 354-A of the Bombay Municipal Corporation Act was served on the bakery, but the bakery denied, vide their letter dated April 4, 1962, that they had raised the height of the chimney, as alleged. 9. Mr. Keer, PW 27, a Sanitary Inspector of D/2 Ward also visited the bakery during the period the chimney was being altered. He found on April 10, 1962, that one bhatti was working and the other bhatti which was demolished was being re-built. 10. Dr Shah, PW 21, the Medical Inspector, Health Department, also visited the bakery in the first week of April and he saw repairs to the oven going on and the chimney was also being plastered. 11. After the chimney fell down a number of officers visited the spot and inspected the bakery and the pieces of the chimney which had fallen down. Sewant, PW 18, who worked as a Tendal in-charge of the Fire Brigade at Nana Chowk on April 15, 1962, found that the western side of the bhatti was working and the oven on the eastern side was warm. Sadanand Rane. PW 19, who was the Station Officer in the Byculla Fire Station, found lighted segrees in the bakery portion and he ordered the crew to put out the segrees. Mr. D'souza, PW 37, Executive Engineer of the Bombay Municipal Corporation, found the concrete of the top blocks of the chimney, which had fallen to be damp and loose and the concrete was crumbling. This indicated that the mortar had not set. He gave his opinion that if a furnace is worked when the construction work of the chimney is going on, it would extract the water very rapidly from the concrete and this was not desirable, because it was necessary for the moisture to evaporate gradually in order that the bonding might be better and secure. According to him the heat of the furnace would extract the damp from the interior surface of the chimney while the exterior surface would remain damp. He further stated :- "In my opinion, the collapse of the chimney was due to explosion or a blow-up. According to him the heat of the furnace would extract the damp from the interior surface of the chimney while the exterior surface would remain damp. He further stated :- "In my opinion, the collapse of the chimney was due to explosion or a blow-up. One of the subsidiary causes was that the brick work of the chimney was not bonded properly i.e. to say that the cement was not allowed to set. If the brickwork of the chimney was not bonded properly, it would give way with a slightest explosion or blow-up." 12. The Chief Inspector of Boilers and Smoke Nuisance, Mr. Jacob, PW 36, gave his opinion that the cause of the collapse of the chimney was due to an explosion in the chimney because "by not permitting the products of combustion to escape freely and by putting a pipe of 6 inches diameter, instead of 12 inches diameter, the proprietor of the bakery had reduced the area in the ratio of 4: 1 and as a result the gases did not escape freely; and if the gases do not flow freely, there is likelihood of explosion, especially when a pocket is formed". He further stated :- "There are two causes for the explosion, viz. (i) restriction of the area of the top portion of the chimney from 12 inches to 6 inches diameter and (ii) formation of the pocket." He added: "Even if no pocket is formed, the restriction of itself would cause the explosion. it is only the unburnt gases that would cause the explosion." 13. Another officer who inspected the site of the chimney was Mr. Seervai, PW 34, Inspector of Steam Boilers and Smoke Nuisance. He found in the room of Rama a cement pipe (Ex. 62) imbedded in the brick-masonry, one portion of which was protruding outside and another of which was protruding inside the brick-masonry, and when examined the brick-work with his hands, he found it moist. He further stated that when he examined the pipe, Ex. 62, imbedded in the brick-portion he found 27 inches length of the pipe fixed in the brick-work and the remaining 9 inches protruding in the hollow of the chimney. About 5 inches of the cement pipe was protruding above the brick portion of the chimney. According to him "when there are two ovens working, a chimney of at least 12 inches diameter is necessary... About 5 inches of the cement pipe was protruding above the brick portion of the chimney. According to him "when there are two ovens working, a chimney of at least 12 inches diameter is necessary... If one furnace is used, the area of 12 inches bore is to be halved. As the area of the 12 inches bore is 112 sq. inches for two ovens half of this area i.e. 56.5 sq. inches would be required for one oven. The pipe (Ex. 62) is of 6 inches diameter, i.e. to say of 28 sq. inches. So even for (one) oven this pipe is not adequate. A bore of 8½ inches diameter would be enough for one oven if it is worked normally." In his opinion, "the causes of the collapse of the chimney are (1) restriction of the draught by installing a six inches diameter pipe instead of 12 inch-diameter pipe as originally proposed which resulted in poor combustion of the fuel and unburned gases escaped in the chimney before they were completely burned in the furnace, (2) because of the installation of the cement pipe in the brick-portion of the chimney a pocket was created at the dead end of the brick-portion (top portion). As the brick-work was not bonded up properly, cracks were formed in the brick-work through which air entered which combining with unburned gases, formed an explosive mixture resulting in an explosion and the blowing up of the cement pipe and the brick-portion". He further opined that "even if the brick-work was bonded properly and completely dry by altering the original 12 inch diameter pipe to 6 inches diameter pipe there would be restriction of the draught and by the method of inserting the cement pipe in the brickwork forming a pocket an explosion was bound to occur". 14. Another officer who visited the spot was Mr. Khurana, PW 41, Inspector of Smoke Boilers and Smoke Nuisance. He also found a block of the chimney on the bed of a Parsee to be wet, i.e. moist. He also found two other blocks which were lying in the passage outside the room of the Parsee to be wet. 14. Another officer who visited the spot was Mr. Khurana, PW 41, Inspector of Smoke Boilers and Smoke Nuisance. He also found a block of the chimney on the bed of a Parsee to be wet, i.e. moist. He also found two other blocks which were lying in the passage outside the room of the Parsee to be wet. He reported to the Chief Inspector that in his opinion "the outgoing passage for the smoke and the unburnt gases was insufficient, which created pressure inside and as the material of the mortar used might have been of poorer quality and not even set; so, the unsupported portion above roofing might also be of eccentric structure and afresh. So, with wind-pressure together it fell down". According to him, "the main cause of the collapse of the chimney was the restriction of draught, as a result of reducing the diameter of the pipe at the top of the chimney from 12 inches to 6 inches. Then as a result of restriction of the draught there was insufficient quantity of air available to have a complete combustion, which resulted in generation of the combustible gases like carbon monoxide and hydrogen. When these gases mixed with air, they exploded and the explosion occurred". He also gave the chimney area which is required under Rule 30(4)(a) of the rules framed under the Bombay Smoke Nuisance Act. 15. The High Court, on this evidence, came to the conclusion that apart from not complying with the requirements of the Bombay Smoke Nuisance Act and the rules made thereunder, and the rules under the City of Bombay Municipal Corporation Act, the construction of the new chimney was done without advice of a properly qualified person. The High Court observed: "Though he asserts that he relied upon the advice of Gunaji Lad (PW 8), no such suggestion is made to him. The learned Judge is right in holding that the mason worked according to his directions. Even when the work of construction was in progress he continued to work the ovens, undoubted effect of which was to render the chimney weak. He asserts that he asked the Mistry and he said there would be no harm. No such suggestion is made to the witness. Even when the work of construction was in progress he continued to work the ovens, undoubted effect of which was to render the chimney weak. He asserts that he asked the Mistry and he said there would be no harm. No such suggestion is made to the witness. Curiously enough, no guy wires were even used with the result that eleven feet of the pipe was left waving' in the air above the masonry construction." The High Court then concluded :- "Having regard to all the circumstances, we have no hesitation in holding that the appellant acted with a complete disregard for the safety of others and disobeyed all rules of law intended for the safety of the public and his negligence was such as made him liable under the respective sections for which he was charged." 16. The learned counsel for the appellant contends that there was no negligence on the part of the appellant, and it was because of the negligence of the mason that the chimney fell down. He further says that Gunaji Lad was a qualified person and he had been recommended by persons in the trade and the appellant could not be responsible for the negligence of the mason. Relying on V.V. Dagholkar v. King, AIR (1948) PC 183 he says that the prosecution must prove a higher degree of negligence than negligence which might give rise to a claim for compensation in a Civil Court. He further-says that the High Court was not entitled to take into consideration the various breaches the appellant is alleged to have made of the Bombay Smoke Nuisance Act and the Bombay Municipal Corporation Act, 17. We may assume, as laid down in Dabholkar case, that a higher degree of negligence is required for conviction under Section 304A Indian Penal Code. In our opinion, the appellant was highly negligent in choosing an asbestos pipe of six inches diameter and asking PW 8, Gunaji Lad, to make the necessary alterations in the chimney, and then continuing to burn the oven during the days while alterations to the chimney were being made. Gunaji Lad may be a good mason but he does not seem to be a competent person to design the alterations to a tall chimney of a bakery. The evidence clearly shows that the chimney fell mainly because of the use of an asbestos pipe of six inches diameter. Gunaji Lad may be a good mason but he does not seem to be a competent person to design the alterations to a tall chimney of a bakery. The evidence clearly shows that the chimney fell mainly because of the use of an asbestos pipe of six inches diameter. The very fact that, at the instance of the appellant, Lad installed an asbestos pipe of six inches diameter in this bakery shows that he was not a very competent person to design chimneys. Further, it was highly negligent on the part of the appellant to continue to burn the oven during the days when the alteration of the chimney was carried on. 18. There is no doubt that these acts would amount to "negligence" in civil law. It seems to us that if a person, who is not an engineer chooses to decide for himself the width of a pipe for a chimney of a bakery, with-two ovens, of the height of about 75 feet and entrusts the alteration of the chimney to a mason who has not designed chimneys before, and does not completely stop the firing of an oven during the construction of the chimney, does negligent acts within the meaning of Section 304-A. 19. This takes us to the plea of the appellant that it was due to the negligent acts of Gunaji Lad that the chimney fell. It is true that this court in K.H.M. Rangwalla v. State of Maharashtra, (1965) 2 SCR 622 at 626 approved the following observations of Lord Jenkins in Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679 :- "To impose criminal liability under Section 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." But on the facts of this case it seems to us that the proximate and efficient cause of the deaths was the negligence of the appellant in choosing a pipe of six inches diameter and asking PW 8 to carry out the alterations, and also continuing working at least one oven during the period while the alterations to the chimney were being made. Even if Gunaji Lad was negligent in actually fixing the pipe on the brick masonry, the proximate and efficient cause of the accident was the negligent acts of the appellant mentioned above. 20. We agree with the High Court that the appellant is guilty under Section 304-A and Sections 337 and 338 Indian Penal Code. This leaves only the question of sentence. The High Court, as stated earlier, enhanced the sentence imposed by the learned Sessions Judge. In our opinion, on the facts of this case, the High Court was not justified in enhancing the sentence and imposing the maximum sentence permissible under Section 304-A. It may be, as asserted by the appellant, that Gunaji Lad although not fully qualified had enough practical experience to avoid major pitfalls and that he thought that a pipe of six inches diameter would do. It may be that the previous conduct of the appellant vis-a-vis the authorities under the Smoke Nuisance Act and other Acts had influenced the High Court in this respect. 21. In the result we allow the appeal to the extent that the sentences imposed by the High Court are set aside and those imposed by the Sessions Judge are restored. The appellant will now surrender to his bail.