The causa causans for the loss

Supreme Court of India
Sushil Ansal vs State Thr.Cbi on 5 March, 2014
Author: .....J.
Bench: T.S. Thakur, Gyan Sudha Misra
 REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICITION
 CRIMINAL APPEAL NO.597 OF 2010
Sushil Ansal Appellant
 Versus
State Through CBI Respondent
(With Crl. Appeals No.598/2010, 599/2010, 600-602/2010, 604/2010, 605-
616/2010 and 617-627/2010)
121. Appearing for the appellant Sushil Ansal, Mr. Jethmalani strenuously argued that the death of
59 persons in the incident in question was caused by the fire that started from the DVB transformer,
which was poorly maintained and shabbily repaired by the DVB officials on the morning of 13th
June, 1997 the date of incident. The causa causans for the loss of human lives thus was the
transformer that caught fire because of the neglect of the DVB officials who did not even have a
crimping machine to repair the transformer properly. The absence of an oil soaking pit in the
transformer room was also a reason for the oil to spill out from the transformer room to spread the
fire to the parking area from where smoke containing lethal carbon monoxide rose, and due to
chimney effect, entered the hall to cause asphyxiation to those inside the balcony. He urged that
there was no evidence that any death had taken place inside the balcony which proved that most if
not all the patrons sitting in the balcony had exited from that area, but died on account of the
poisonous effect of the gas enough to kill human being within minutes of exposure. Heavy reliance
was placed by Mr. Jethmalani upon the decision of this Court in Kurban Husseins case (supra) in
support of his submission that the causa causans in the case at hand was the fire in the DVB
transformer and not the alleged deviations in the building plan or the seating arrangement or the
obstructions in the staircase, that led out of the cinema precincts.
122. Mr. Harish Salve, appearing for the CBI and Mr. K.T.S. Tulsi appearing for the Victims
Association contended that while there was no quarrel with the proposition that death must be
shown to have occurred as a direct, immediate or proximate result of the act of rashness or
negligence, it was not correct to say that the deaths in this case had occurred because of the fire in
the transformer. It was also not correct to draw any analogy on facts with any other decided case
including that of Kurban Hussein (supra). Failure of the victims to rapidly exit from the smoke filled
atmosphere in the balcony area because of obstructions and deviations proved at the trial was the
real, direct and immediate cause for the death of the victims in the present case who would have
safely escaped the poisonous carbon monoxide gas only if there were proper gangways, exits,
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emergency lights, an alarm system in working condition and human assistance available to those
trapped inside the hall.
123. We have at some length dealt with the ingredients of an offence punishable under Section 304A
of the IPC in the earlier part of this judgment. One of those ingredients indeed is that the rash or
negligent act of the accused ought to be the direct, immediate and proximate cause of the death. We
have in that regard referred to the decisions of this Court to which we need not refer again. The
principle of law that death must be shown to be the direct, immediate and proximate result of the
rash or negligent act is well accepted and not in issue before us as an abstract proposition. What is
argued and what falls for our determination is whether the causa causans in the case at hand was the
fire in the DVB transformer as argued by the defence or the failure of the victims to rapidly exit from
the balcony area. Two aspects in this connection need be borne in mind. The first is that the victims
in the instant case did not die of burn injuries. All of them died because of asphyxiation on account
of prolonged exposure to poisonous gases that filled the cinema hall including the balcony area. Fire,
whatever may have been its source, whether from the DVB transformer or otherwise, was the causa
sine qua non for without fire there would be no smoke possible and but for smoke in the balcony
area there would have been no casualities. That is not, however, the same thing as saying that it was
the fire or the resultant smoke that was the causa causans. It was the inability of the victims to move
out of the smoke filled area that was the direct cause of their death. Placed in a smoke filled
atmosphere any one would distinctively try to escape from it to save himself. If such escape were to
be delayed or prevented the causa causans for death is not the smoke but the factors that prevent or
delay such escape. Let us assume for instance that even when there are adequate number of exits,
gangways and all other safety measures in place but the exits are locked preventing people from
escaping. The cause of death would in such case be the act of preventing people from exiting from
the smoke filled hall, which may depending upon whether the act was deliberately intended to cause
death or unintended due to negligence, amount to culpable homicide amounting to murder or an act
of gross negligence punishable under Section 304A. Similarly take a case where instead of four exits
required under the relevant Rules, the owner of a cinema provides only one exit, which prevents the
patrons from exiting rapidly from the smoke filled atmosphere, the causa causans would be the
negligent act of providing only one exit instead of four required for the purpose.
124. It would in such circumstances make no difference whether the fire had started from a source
within the cinema complex or outside, or whether the occupiers of the cinema were responsible for
the fire or someone else. The important question to ask is what the immediate cause of the death
was. If failure to exit was the immediate cause of death nothing further need be considered for that
would constitute the causa causans. That is what happened in the case at hand. Smoke entered the
cinema hall and the balcony but escape was prevented or at least delayed because of breach of the
common law and statutory duty to care.
125. The second aspect is that while the rash or negligent act of the accused must be the causa
causans for the death, the question whether and if so what was the causa causans in a given case,
would depend upon the fact situation in which the occurrence has taken place and the question
arises. This Court has viewed the causa causans in each decided case, in the facts and circumstances
of that case. If Hatims failure to stir the hot wet paint while Rosin was being poured into it was held
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to be causa causans, in Kurban Husseins case (supra), the failure of the motorist to look ahead and
see a pedestrian crossing the road even when the motorist was driving within the speed limit
prescribed was held to be the causa causans for the death in Bhalchandra Waman Pathe v. State of
Maharashtra (supra). In Bhalchandra @ Bapu and Anr. v. State of Maharashtra (supra) where an
explosion in a factory manufacturing crackers claimed lives, this Court found that use of explosives
with sensitive compositions was the immediate cause of the explosion that killed those working in
the factory. In Rustom Sherior Iranis case (supra), this Court found the new chimney of the Bakery
was being erected without the advice of a properly qualified person and that the factory owner was
responsible for neglect that caused the explosion and not the mason employed by him for erecting
the chimney. The decision in Kurban Husseins case (supra) was cited but distinguished on facts
holding that the choice of the low diameter pipe and engaging a mere mason not properly qualified
for doing the job were the cause of the accident resulting in causalities.
126. It is in that view, not correct to say that the causa causans in the present case ought to be
determined by matching the colours of this case with those of Kurban Husseins case (supra). The
ratio of that case lies not in the peculiar facts in which the question arose but on the statement of law
which was borrowed from the judgment of Sir Lawrence Jenkins in Emperor v. Omkar Rampratap
(supra). The principle of law enunciated in that case is not under challenge and indeed was fairly
conceded by Mr. Salve and Mr. Tulsi. What they argued was that when applied to the facts proved in
the present case, the causa causans was not the fire in the transformer but the breaches committed
by the occupiers of the cinema which prevented or at least delayed rapid dispersal of the patrons
thereby fatally affecting them because of carbon monoxide laden gas in the smoke filling the
atmosphere. The causa causans indeed was the closure of the exit on the right side, the closure of the
right side gangway, the failure to provide the required number of exits, failure to provide emergency
alarm system and even emergency lights or to keep the exit signs illuminated and to provide help to
the victims when they needed the same most, all attributable to Ansal brothers, the occupiers of the
cinema. We have, therefore, no hesitation in rejecting the argument of Mr. Jethmalani, which he
presented with commendable clarity, persuasive skill and tenacity at his command