PETITIONER: SULEMAN REHIMAN MULANI & ANR. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 01/12/1967 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. SHELAT, J.M. CITATION: 1968 AIR 829 1968 SCR (2) 515 CITATOR INFO : D 1968 SC1319 (5) R 1972 SC1150 (8) ACT: Indian Penal Code (Act 45 of 1860) ss. 201 and 304-A-Vehicle driven by learner without trainer-No evidence that death due to negligence of driver-Conviction if proper--Conviction under s. 304-A set aside, if can be maintained under s. 201.-Motor Vehicles Act (4 of 1939), ss. 5 and 89--Neither owner, nor in-charge, if can be convicted. HEADNOTE: The first appellant holding only a learner's licence was driving a jeep without a trainer by his side and injured a person. The first appellant and his companion in the journey-the second appellant put the injured in the jeep for getting medical aid, but the injured died on the way. They cremated the dead body. The first appellant was convicted under s. 304-A I.P.C. and ss. 3, 89 and 112 of the Motor Vehicles Act and the second appellant under s. 201 I.P.C., and ss. 5 and 89 of the Motor Vehicles Act. HELD : There was no evidence to show that the first appellant was responsible for the incident so his conviction under s. 304-A could not be sustained. [517 H] The requirements of s. 304-A I.P.C. are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. There is no presumption in law that a person who possesses only a learner's licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence. The prosecution evidence that first appellant had driven the jeep to various places on the day previous to the occurrence war. a proof of the fact that he knew driving. [519 B-C; 520 B-C] The question whether first appellant was proficient in driving a jeep or not does not conclude the issue. His proficiency in driving might furnish a defence. which a learner could not have, but the absence of proficiency did not make him guilty. [521 D-E] As the conviction of the first appellant under s. 304-A I.P.C. could not be sustained, the conviction of second appellant under s. 201 I.P.C. had to be set aside. Because to, establish the charge under s. 201, the prosecution must first prove that an offence had been committed-not merely a suspicion that it might have been committed-and that the accused knowing or having reason to believe that such an offence had been committed, and with the intent to screen the offender from legal punishment, had caused the evidence thereof to disappear. The proof of the commission of an offence is an essential requisite for bringing home the offence under s. 201 I.P.C. [517 D-G; 521 F-G] Palvinder Kaur v. State of Punjab, [1953] S.C.R. 94, and Kurban Hussein Mohammedan Rangwalla v. State of Maharashtra [1965] 2 S.C.R. 622, followed. Emperor v. Omkar Rampratap 4 B.L.R. 679, approved. 516 Juggankhan v. State of Madhya Pradesh, [1965] S.C.R. 14 distinguished. The 'second appellant could not be convicted either under s. 5 or s. 89 of the Motor Vehicles Act. In convicting him under those provisions, the fact that he was not the owner of the jeep had been overlooked. Nor was there any proof that he was in charge of the jeep. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
50 of 1965.
Appeal by special leave from the judgment and order dated
February 15, 1965 of the Bombay High Court in Criminal Revi-
sion Application No. 917 of 1964.
A. S. R. Chari, O. P. Malhotra, V. N. Ganpule, P. C.
Bhartari, and O. C. Mathur, for the appellants.
M. S. K. Sastri and S. P. Nayar, for the respondent.
The Judgment of the Court was delivered by
Hegde, J. In this appeal by special leave against the judg-
ment of the High Court -of Bombay in criminal revision
application No. 917/64, the question that arises for
decision is whether on the facts found by the courts below,
the appellants were properly held to be guilty of all or any
of the offences for which they have been convicted.
In the trial court there were as many as nine accused. All
the accused excepting accused Nos. 1 and 2 who are
appellants 1 and 2 respectively in this Court, were,
acquitted.
The prosecution case is as follows : The acquitted third ac-
cused was the owner of the jeep bearing registration No. BYF
5448. Accused ,No. 2 is his father. They are the residents
of Malshiras. On October 27, 1962, the appellants along
with PW Rambhau Bhombe and one other, went in the jeep in
question first to Phaltan which is about 33 miles away from
Malshiras, from there to Rajale about seven miles away from
Phaltan. From Rajale they returned to Phaltan and from
there to Malegaon. They stayed for the night at Malegaon.
Next day they returned to Phaltan and finally to Malshiras.
During all this time, appellant No. 1 was driving the jeep.
On the way from Phaltan to Malshiras, about a mile and a
half from Phaltan, the jeep struck one Bapu Babaji
Bhiwarkar, as a result of which he sustained serious
injuries. The appellants put the injured person in the jeep
and brought back the jeep to Phaltan where they approached
PW Dr. Karwa for medical aid, but Dr. Karwa refused to treat
the injured as it was a medico-legal case. He asked them to
go to Government Dispensary. The appellants instead of
going to the Government Dispensary, drove straight to
Malshiras. On the way the injured died. At Malshiras the
appellants cremated his dead body. At the time of the
incident, the first appellant had
517
only a learner’s licence and no person having a valid
licence for driving was by his side.
The courts below have accepted the above facts and on the
basis of those facts, the trial court convicted the
appellant No. 1 under s. 304A IPC, s. 3 read with s. 112 of
the Motor Vehicles Act and under s. 89 of the same Act. It
convicted the second appellant under s. 201 IPC, s. -5 as
well as under s. 89 of the Motor Vehicles Act. These
convictions were affirmed by the learned Sessions Judge of
Satara in appeal and by the High Court in revision.
The conviction of the first appellant under the provisions
of the Motor Vehicles Act was not challenged before us, but
we fail to see how the second appellant could have been
convicted either under s. 5 or under s. 89 of the Motor
Vehicles Act. In convicting him under those provisions, the
courts below appear to have overlooked the fact that he was
not the owner of the jeep. Nor was there any proof that he
was in charge of the jeep. Hence, his convictions under
those provisions cannot be sustained.
The conviction of the appellant No. 2 under s. 201 IPC de-
pends on the sustainability of the conviction of appellant
No. 1 under s. 304A IPC. If appellant No. 1 was rightly
convicted under that provision, the conviction of appellant
No. 2 under s. 201 IPC on the facts found cannot be
challenged. But on the other hand, if the conviction of
appellant No. 1 under s. 304A IPC cannot be sustained, then,
the second appellant’s conviction under s. 201 IPC will have
to be set aside, because to establish the charge under s.
201, the prosecution must first prove that an offence had
been committed not merely a suspicion that it might have
been committed-and that the accused knowing or having reason
to believe that such an offence had been committed, and with
the intent to screen the offender from legal punishment, had
caused the evidence thereof to disappear. The proof of the
commission of an offence is an essential requisite for
bringing home the offence under s. 201 IPC-see the decision
of this Court in Palvinder Kaur v. State of Punjab (1).
Therefore the principal question for decision is whether on
the facts found, appellant No. 1 was rightly convicted under
s. 304A IPC. On the material on record it is not possible
to find out under what circumstances the accident took
place. The High Court in its judgment specifically says
that “There are no witnesses whose evidence can establish
rash and negligent driving on the part of accused No. 1.” We
may go further and say that there is absolutely no evidence
to show that the accused was responsible for the accident.
The prosecution has not produced any evidence to show as to
how the accident took place. The High Court observed:
(1) [1953] S.C.R. 94.
518
‘It is however, a fact conclusively
established and not disputed before me that
the accused No. 1 had only a learner’s licence
at the material time. It is not even
suggested before me that accused No. 2 held a
driving licence so that he could act as a
trainer for accused No. 1. In fact, there is
no suggestion by the defence that there was a
trainer by the side of accused No. 1. Thus on
the facts established, it is quite clear that
at the material time, the jeep was driven by
accused No. 1, who not only did not have a
valid driving licence, but had only a
learner’s licence. The question for consi-
deration, therefore, is whether driving a jeep
on a public road by a person, who does not
know driving and is consequently unable to
control the vehicle, is a rash and negligent
act as contemplated by Section 304A IPC.”
The court answered that question in these
words
“The very fact that the person concerned
holds only a learner’s licence, in my opinion,
necessarily implies that he does not know
driving and must be assumed to be incapable of
controlling the vehicle. If a person who does
not know driving and is a consequently not
able to control a car or a vehicle, chooses to
drive a car or a vehicle on a public road
without complying with the requirements of
Rule 16 of Bombay Motor Vehicles Rules, he
obviously does an act, which can be said to be
rash and negligent, as contemplated by Sec.
304A IPC. It is negligent because he
does not
take the necessary care of having a trainer by
his side. It is rash because it utterly
disregards the public safety. Prima facie it
appears to me that driving a vehicle like a
jeep or motor-car on a public road without
being qualified to drive, particularly in the
absence of any evidence to show that the
person concerned had the necessary experience
and good control over the vehicle would amount
to a rash and negligent act, as contemplated
by Sec. 304A IPC.”
Assuming that the High Court was right in its conclusion
that appellant No. 1 had not acquired sufficient proficiency
in driving therefore he was guilty of a rash or negligent
act in driving the jeep that by itself is not sufficient to
convict him under s. 304A IPC. The, prosecution must go
further and prove that it was that rash or negligent act of
his that caused the death of the deceased.
Section 304A says
“Whoever causes the death of any person by
doing any rash or negligent act not amounting
to culpable
519
homicide shall be punished with imprisonment
of either description for a term which may
extend to two years, or with fine, or with
both.”
The requirements of this section are that the death of any
person must have been caused by the accused by doing any
rash or negligent act. In other words, there must be proof
that the rash or negligent act of accused was the proximate
cause of the death. There must be direct nexus between the
death -of a person and the rash or negligent act of the
accused. As mentioned earlier there is no evidence to show
that it was rash or the negligent act of the accused that
caused the death of the deceased.
Before referring to the decided cases, we would like to
revert to prosecution evidence for finding out whether the
High Court was right in its inference that the accused was
novice in the matter of driving. From the prosecution
evidence itself it is clear that he drove the jeep to
various places on October 27, 1962. Then there was the
evidence of PW Shankar Burmule, showing that he had seen
accused No. 1 driving for about six months to a year. The
learned Judge of the High Court discarded his evidence with
these observations :
“In the present case, Mr. Jahagirdar relies
on the evidence of Shankar Burmule, which is
at Exh. 39, to contend that accused No. 1 had
considerable driving experience.
Unfortunately the English notes of evi
dence by
the learned trial Magistrate do not indicate
that the witness stated that accused No. 1 had
driving experience, but the evidence recorded
in Marathi undoubtedly indicates that the
witness claims to have seen accused No. 1
driving for about six months to a year. The
witness seems to be a relation of accused No.
2, though not a near relation, and his word
cannot be taken at par. Moreover the admitted
fact that at the material time accused No. 1
held only a learner’s licence itself indicates
that no importance can be attached to the
abovesaid statement of Shankar Burmule. It is
also urged that accused No. 1 did take the
jeep from Malshiras to Phaltan and to some
other places and that also would bear out the
statement of Shankar Burmule. All that I can
say is that it was a sheer stroke of good
fortune that accused No. 1 did not meet with
any accident during his trip from Malshiras to
Phaltan and some other places.”
With respect to the learned Judge we think this was not the
proper way of appreciating evidence. Conclusions must be
based on the evidence on record. PW Shankar Burmule has
given material
520
evidence against the accused. His evidence establishes an
important link in the prosecution case. He could not have
been compelled to give that evidence if he was not a
truthful witness. The learned public prosecutor did not
make any attempt in his reexamination to show that any
portion of his evidence was untrue. There is no presumption
in law that a person who possesses only a learner’s licence
or possesses no licence at all does not know driving. For
various reasons, not excluding sheer indifference, he might
not have taken a regular licence. The prosecution evidence
that appellant No. 1 had driven the jeep to various places
on the day previous to the occurrence is a proof of the fact
that he knew driving. There was no basis for the conclusion
that it, was a sheer stroke of good fortune that he did not
meet with any accident on that day.
Now let us turn to the decided cases. Dealing with the
scope of S. 304A IPC, Sir Lawrence Jenkins observed in
Emperor v. Omkar Rampratap(1) :
“To impose criminal liability under S. 304A,
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.”
That, in our opinion is the true legal
position.
The scope of s. 304A IPC came to be considered by this Court
in Kurban Hussein Mohammedali Rangwalla v. State of
Maharashtra(2). In our opinion, the ratio of that decision
governs the facts of the present case. The facts of that
case were : 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
licence for manufacturing wet paints but nevertheless manu-
factured 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 S. 304A and s. 285, IPC. Hi,-, appeal was summarily
dismissed by the Bombay High Court. This Court set aside
the conviction under S. 304A IPC, holding that
(1) 4B.L.R. 679.
(2) [1965] 2 S.C.R. 622.
521
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 would be a negligent act, would not
be enough to make the appellant responsible for the fire
which broke out. In the course of the judgment this Court
observed that the cause of the fire was not merely the
presence of the burners within the room in which varnish and
turpentine were stored, though that 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. On the
basis of the facts of that case, this Court held 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 burn in the particular room. In the
present case, we do not know what was the proximate cause of
the accident. We cannot rule Out the possibility of the
accident having been caused due to the fault of the
deceased. The question whether appellant No. 1 was
proficient in driving a jeep or not does not conclude the
issue. His proficiency in driving might furnish a defence,
which a learner could not have, but the absence of
proficiency did not make him guilty. The only question was
whether, in point of fact he was not competent to drive and
his incompetence was the cause of death of the person
concerned.
On behalf of the prosecution reliance was placed on the de-
cision of this Court in Juggankhan v. State of Madhya
Pradesh (1), to which one of us was a party (Sikri, J). The
ratio of that decision does not apply to the facts of the
present case. In that ,case, it had been conclusively
proved that the rash or negligent act ,of the accused was
the cause of the death of the person concerned.
For the reasons mentioned above, we are unable to agree
‘with the courts below that on the basis of the facts found
by them the first appellant could have been held guilty
under s. 304A IPC. We accordingly allow his appeal and
acquit him of that offence. From that finding, it follows
that the second appellant could not have been convicted
under s. 201 IPC.
In the result, the second appellant’s appeal is allowed in
full and he is acquitted of all the charges. The first
appellant’s appeal is allowed in part and his conviction
under S. 304A is set aside. But his other convictions are
sustained, namely, his convictions under s. 3 read with S.
112 of the Motor Vehicles Act and S. 89 of the same Act,
for which offences only a sentence of fine had been imposed
upon him.
Appeal allowed.
Y.P.
(1) [1965] 1 S.C.R 14.
522