{"id":79987,"date":"1967-12-01T00:00:00","date_gmt":"1967-11-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suleman-rehiman-mulani-anr-vs-state-of-maharashtra-on-1-december-1967"},"modified":"2016-09-27T01:07:46","modified_gmt":"2016-09-26T19:37:46","slug":"suleman-rehiman-mulani-anr-vs-state-of-maharashtra-on-1-december-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suleman-rehiman-mulani-anr-vs-state-of-maharashtra-on-1-december-1967","title":{"rendered":"Suleman Rehiman Mulani & Anr vs State Of Maharashtra on 1 December, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Suleman Rehiman Mulani & Anr vs State Of Maharashtra on 1 December, 1967<\/div>\n
Equivalent citations: 1968 AIR 829, \t\t 1968 SCR (2) 515<\/div>\n
Author: K Hegde<\/div>\n
Bench: Hegde, K.S.<\/div>\n
           PETITIONER:\nSULEMAN REHIMAN MULANI & ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\n01\/12\/1967\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nSIKRI, S.M.\nSHELAT, J.M.\n\nCITATION:\n 1968 AIR  829\t\t  1968 SCR  (2) 515\n CITATOR INFO :\n D\t    1968 SC1319\t (5)\n R\t    1972 SC1150\t (8)\n\n\nACT:\nIndian Penal Code (Act 45 of 1860) ss. 201 and 304-A-Vehicle\ndriven by learner without trainer-No evidence that death due\nto  negligence\tof driver-Conviction  if  proper--Conviction\nunder  s.  304-A set aside, if can be  maintained  under  s.\n201.-Motor  Vehicles Act (4 of 1939), ss. 5 and\t 89--Neither\nowner, nor in-charge, if can be convicted.\n\n\n\nHEADNOTE:\nThe  first  appellant holding only a learner's\tlicence\t was\ndriving\t a jeep without a trainer by his side and injured  a\nperson.\t  The  first  appellant and  his  companion  in\t the\njourney-the second appellant put the injured in the jeep for\ngetting medical aid, but the injured died on the way.\tThey\ncremated  the dead body.  The first appellant was  convicted\nunder  s.  304-A I.P.C. and ss. 3, 89 and 112 of  the  Motor\nVehicles  Act and the second appellant under s. 201  I.P.C.,\nand ss. 5 and 89 of the Motor Vehicles Act.\n HELD  :  There\t was  no evidence to  show  that  the  first\nappellant was responsible for the incident so his conviction\nunder s. 304-A could not be sustained. [517 H]\nThe  requirements of s. 304-A I.P.C. are that the  death  of\nany person must have been caused by the accused by doing any\nrash or negligent act.\tIn other words, there must be  proof\nthat  the  rash\t or negligent act of  the  accused  was\t the\nproximate  cause of the death.\tThere must be  direct  nexus\nbetween the death of a person and the rash or negligent\t act\nof  the\t accused.   There is no presumption in\tlaw  that  a\nperson\twho possesses only a learner's licence or  possesses\nno  licence  at\t all does not  know  driving.\tFor  various\nreasons, not excluding sheer indifference, he might not have\ntaken  a  regular licence.  The\t prosecution  evidence\tthat\nfirst appellant had driven the jeep to various places on the\nday previous to the occurrence war. a proof of the fact that\nhe knew driving. [519 B-C; 520 B-C]\nThe  question  whether\tfirst appellant\t was  proficient  in\ndriving\t a  jeep or not does not conclude  the\tissue.\t His\nproficiency  in\t driving might furnish a  defence.  which  a\nlearner\t could not have, but the absence of proficiency\t did\nnot make him guilty. [521 D-E]\nAs  the\t conviction of the first appellant  under  s.  304-A\nI.P.C.\tcould  not be sustained, the  conviction  of  second\nappellant under s. 201 I.P.C. had to be set aside.   Because\nto, establish the charge under s. 201, the prosecution\tmust\nfirst prove that an offence had been committed-not merely  a\nsuspicion  that\t it might have been committed-and  that\t the\naccused\t knowing  or having reason to believe that  such  an\noffence\t had been committed, and with the intent  to  screen\nthe offender from legal punishment, had caused the  evidence\nthereof\t to  disappear.\t The proof of the commission  of  an\noffence\t is  an essential requisite for\t bringing  home\t the\noffence under s. 201 I.P.C. [517 D-G; 521 F-G]\nPalvinder  Kaur\t v. State of Punjab, [1953] S.C.R.  94,\t and\nKurban Hussein Mohammedan Rangwalla v. State of\t Maharashtra<\/a>\n[1965] 2 S.C.R. 622, followed.\nEmperor v. Omkar Rampratap 4 B.L.R. 679, approved.\n516\nJuggankhan  v.\tState of Madhya Pradesh,<\/a>  [1965]  S.C.R.  14\ndistinguished.\nThe 'second appellant could not be convicted either under s.\n5  or  s. 89 of the Motor Vehicles Act.\t In  convicting\t him\nunder  those provisions, the fact that he was not the  owner\nof  the jeep had been overlooked.  Nor was there  any  proof\nthat he was in charge of the jeep.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
\n50 of 1965.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nFebruary 15, 1965 of the Bombay High Court in Criminal Revi-
\nsion Application No. 917 of 1964.\n<\/p>\n
A.   S.\t R.  Chari,  O. P. Malhotra, V. N.  Ganpule,  P.  C.
\nBhartari, and O. C. Mathur,<\/a> for the appellants.
\nM. S. K. Sastri and S. P. Nayar, for the respondent.
\nThe Judgment of the Court was delivered by
\nHegde, J. In this appeal by special leave against the  judg-
\nment  of  the  High Court -of Bombay  in  criminal  revision
\napplication  No.  917\/64,  the\tquestion  that\tarises\t for
\ndecision is whether on the facts found by the courts  below,
\nthe appellants were properly held to be guilty of all or any
\nof the offences for which they have been convicted.
\nIn the trial court there were as many as nine accused.\t All
\nthe  accused  excepting\t accused  Nos.\t1  and\t2  who\t are
\nappellants  1  and  2  respectively  in\t this  Court,  were,
\nacquitted.\n<\/p>\n
The prosecution case is as follows : The acquitted third ac-
\ncused was the owner of the jeep bearing registration No. BYF
\n5448.  Accused ,No. 2 is his father.  They are the residents
\nof  Malshiras.\t On October 27, 1962, the  appellants  along
\nwith  PW Rambhau Bhombe and one other, went in the  jeep  in
\nquestion first to Phaltan which is about 33 miles away\tfrom
\nMalshiras, from there to Rajale about seven miles away\tfrom
\nPhaltan.   From\t Rajale they returned to  Phaltan  and\tfrom
\nthere  to Malegaon.  They stayed for the night at  Malegaon.
\nNext day they returned to Phaltan and finally to  Malshiras.
\nDuring all this time, appellant No. 1 was driving the  jeep.
\nOn  the\t way from Phaltan to Malshiras, about a mile  and  a
\nhalf   from  Phaltan,  the  jeep  struck  one  Bapu   Babaji
\nBhiwarkar,  as\ta  result  of  which  he  sustained  serious
\ninjuries.  The appellants put the injured person in the jeep
\nand  brought back the jeep to Phaltan where they  approached
\nPW Dr. Karwa for medical aid, but Dr. Karwa refused to treat
\nthe injured as it was a medico-legal case.  He asked them to
\ngo  to\tGovernment Dispensary.\tThe  appellants\t instead  of
\ngoing  to  the\tGovernment  Dispensary,\t drove\tstraight  to
\nMalshiras.   On the way the injured died.  At Malshiras\t the
\nappellants  cremated  his  dead body.  At the  time  of\t the
\nincident, the first appellant had
\n\t\t\t    517<\/span>
\nonly  a\t learner’s  licence and no  person  having  a  valid
\nlicence for driving was by his side.\n<\/p>\n
The  courts below have accepted the above facts and  on\t the
\nbasis  of  those  facts,  the  trial  court  convicted\t the
\nappellant No. 1 under s. 304A IPC, s. 3 read with s. 112  of
\nthe Motor Vehicles Act and under s. 89 of the same Act.\t  It
\nconvicted  the second appellant under s. 201 IPC, s.  -5  as
\nwell  as  under\t s. 89 of the  Motor  Vehicles\tAct.   These
\nconvictions  were affirmed by the learned Sessions Judge  of
\nSatara in appeal and by the High Court in revision.
\nThe  conviction of the first appellant under the  provisions
\nof the Motor Vehicles Act was not challenged before us,\t but
\nwe  fail  to see how the second appellant  could  have\tbeen
\nconvicted  either  under s. 5 or under s. 89  of  the  Motor
\nVehicles Act.  In convicting him under those provisions, the
\ncourts below appear to have overlooked the fact that he\t was
\nnot the owner of the jeep.  Nor was there any proof that  he
\nwas  in\t charge of the jeep.  Hence, his  convictions  under
\nthose provisions cannot be sustained.
\nThe  conviction of the appellant No. 2 under s. 201 IPC\t de-
\npends  on the sustainability of the conviction of  appellant
\nNo.  1\tunder s. 304A IPC.  If appellant No. 1\twas  rightly
\nconvicted under that provision, the conviction of  appellant
\nNo.  2\tunder  s.  201 IPC on  the  facts  found  cannot  be
\nchallenged.   But  on the other hand, if the  conviction  of
\nappellant No. 1 under s. 304A IPC cannot be sustained, then,
\nthe second appellant’s conviction under s. 201 IPC will have
\nto  be set aside, because to establish the charge  under  s.
\n201,  the prosecution must first prove that an\toffence\t had
\nbeen  committed\t not merely a suspicion that it\t might\thave
\nbeen committed-and that the accused knowing or having reason
\nto believe that such an offence had been committed, and with
\nthe intent to screen the offender from legal punishment, had
\ncaused the evidence thereof to disappear.  The proof of\t the
\ncommission  of\tan  offence is an  essential  requisite\t for
\nbringing home the offence under s. 201 IPC-see the  decision
\nof this Court in Palvinder Kaur v. State of Punjab (1).
\nTherefore the principal question for decision is whether  on
\nthe facts found, appellant No. 1 was rightly convicted under
\ns.  304A IPC.  On the material on record it is not  possible
\nto  find  out  under what circumstances\t the  accident\ttook
\nplace.\t The  High Court in its judgment  specifically\tsays
\nthat  “There are no witnesses whose evidence  can  establish
\nrash and negligent driving on the part of accused No. 1.” We
\nmay go further and say that there is absolutely no  evidence
\nto  show that the accused was responsible for the  accident.
\nThe prosecution has not produced any evidence to show as  to
\nhow the accident took place.  The High Court observed:
\n(1)  [1953] S.C.R. 94.\n<\/p>\n
518<\/span><\/p>\n
\t       ‘It   is\t  however,   a\t fact\tconclusively
\n\t      established  and not disputed before  me\tthat
\n\t      the accused No. 1 had only a learner’s licence
\n\t      at   the\tmaterial  time.\t  It  is  not\teven
\n\t      suggested before me that accused No. 2 held  a
\n\t      driving  licence\tso that he could  act  as  a
\n\t      trainer  for accused No. 1. In fact, there  is
\n\t      no suggestion by the defence that there was  a
\n\t      trainer by the side of accused No. 1. Thus  on
\n\t      the facts established, it is quite clear\tthat
\n\t      at  the material time, the jeep was driven  by
\n\t      accused  No.  1, who not only did not  have  a
\n\t      valid   driving  licence,\t but  had   only   a
\n\t      learner’s\t licence.  The question\t for  consi-
\n\t      deration, therefore, is whether driving a jeep
\n\t      on  a  public road by a person, who  does\t not
\n\t      know  driving  and is consequently  unable  to
\n\t      control  the vehicle, is a rash and  negligent
\n\t      act as contemplated by Section 304A IPC.”
\n\t       The  court  answered that question  in  these
\n\t      words
\n\t       “The  very  fact that  the  person  concerned
\n\t      holds only a learner’s licence, in my opinion,
\n\t      necessarily  implies  that he  does  not\tknow
\n\t      driving and must be assumed to be incapable of
\n\t      controlling the vehicle.\tIf a person who does
\n\t      not  know\t driving and is a  consequently\t not
\n\t      able to control a car or a vehicle, chooses to
\n\t      drive  a\tcar or a vehicle on  a\tpublic\troad
\n\t      without  complying  with the  requirements  of
\n\t      Rule  16\tof Bombay Motor Vehicles  Rules,  he
\n\t      obviously does an act, which can be said to be
\n\t      rash  and negligent, as contemplated  by\tSec.
\n\t\t\t    304A IPC.  It is negligent because he
\ndoes  not
\n\t      take the necessary care of having a trainer by
\n\t      his  side.   It  is rash\tbecause\t it  utterly
\n\t      disregards the public safety.  Prima facie  it
\n\t      appears  to me that driving a vehicle  like  a
\n\t      jeep  or\tmotor-car on a public  road  without
\n\t      being qualified to drive, particularly in\t the
\n\t      absence  of  any\tevidence to  show  that\t the
\n\t      person concerned had the necessary  experience
\n\t      and good control over the vehicle would amount
\n\t      to  a rash and negligent act, as\tcontemplated
\n\t      by Sec. 304A IPC.”\n<\/p>\n
Assuming  that\tthe High Court was right in  its  conclusion
\nthat appellant No. 1 had not acquired sufficient proficiency
\nin  driving therefore he was guilty of a rash  or  negligent
\nact in driving the jeep that by itself is not sufficient  to
\nconvict\t him  under s. 304A IPC.  The, prosecution  must  go
\nfurther and prove that it was that rash or negligent act  of
\nhis that caused the death of the deceased.\n<\/p>\n
\t       Section 304A says
\n\t       “Whoever\t causes the death of any  person  by
\n\t      doing any rash or negligent act not  amounting
\n\t      to culpable
\n\t      519<\/span>
\n\t       homicide shall be punished with\timprisonment
\n\t      of  either  description for a term  which\t may
\n\t      extend  to  two years, or with fine,  or\twith
\n\t      both.”\n<\/p>\n
The  requirements of this section are that the death of\t any
\nperson\tmust  have been caused by the accused by  doing\t any
\nrash or negligent act.\tIn other words, there must be  proof
\nthat the rash or negligent act of accused was the  proximate
\ncause of the death.  There must be direct nexus between\t the
\ndeath  -of  a person and the rash or negligent\tact  of\t the
\naccused.  As mentioned earlier there is no evidence to\tshow
\nthat  it was rash or the negligent act of the  accused\tthat
\ncaused the death of the deceased.\n<\/p>\n
Before\treferring  to the decided cases, we  would  like  to
\nrevert\tto prosecution evidence for finding out whether\t the
\nHigh  Court was right in its inference that the accused\t was
\nnovice\tin  the\t matter of driving.   From  the\t prosecution
\nevidence  itself  it  is clear that he\tdrove  the  jeep  to
\nvarious\t places\t on October 27, 1962.  Then  there  was\t the
\nevidence  of  PW Shankar Burmule, showing that he  had\tseen
\naccused\t No. 1 driving for about six months to a year.\t The
\nlearned Judge of the High Court discarded his evidence\twith
\nthese observations :\n<\/p>\n
\t       “In  the present case, Mr. Jahagirdar  relies
\n\t      on  the evidence of Shankar Burmule, which  is
\n\t      at Exh. 39, to contend that accused No. 1\t had
\n\t      considerable\t  driving\t experience.<\/p><\/blockquote>\n
\t\t\t    Unfortunately the English notes of evi
\ndence by
\n\t      the  learned trial Magistrate do not  indicate
\n\t      that the witness stated that accused No. 1 had
\n\t      driving experience, but the evidence  recorded
\n\t      in  Marathi  undoubtedly\tindicates  that\t the
\n\t      witness  claims  to have seen  accused  No.  1<\/span>
\n\t      driving  for about six months to a year.\t The
\n\t      witness seems to be a relation of accused\t No.
\n\t      2,  though not a near relation, and  his\tword
\n\t      cannot be taken at par.  Moreover the admitted
\n\t      fact  that at the material time accused No.  1<\/span>
\n\t      held only a learner’s licence itself indicates
\n\t      that  no\timportance can be  attached  to\t the
\n\t      abovesaid statement of Shankar Burmule.  It is
\n\t      also  urged  that accused No. 1 did  take\t the
\n\t      jeep  from  Malshiras to Phaltan and  to\tsome
\n\t      other places and that also would bear out\t the
\n\t      statement of Shankar Burmule.  All that I\t can
\n\t      say  is  that it was a sheer  stroke  of\tgood
\n\t      fortune  that accused No. 1 did not meet\twith
\n\t      any accident during his trip from Malshiras to
\n\t      Phaltan and some other places.”\n<\/p>\n
With respect to the learned Judge we think this was not\t the
\nproper\tway of appreciating evidence.  Conclusions  must  be
\nbased  on  the evidence on record.  PW Shankar\tBurmule\t has
\ngiven material
\n520<\/span>
\nevidence  against the accused.\tHis evidence establishes  an
\nimportant  link in the prosecution case.  He could not\thave
\nbeen  compelled\t to  give  that evidence if  he\t was  not  a
\ntruthful  witness.   The learned public prosecutor  did\t not
\nmake  any  attempt  in his reexamination to  show  that\t any
\nportion of his evidence was untrue.  There is no presumption
\nin law that a person who possesses only a learner’s  licence
\nor  possesses no licence at all does not know driving.\t For
\nvarious reasons, not excluding sheer indifference, he  might
\nnot have taken a regular licence.  The prosecution  evidence
\nthat  appellant No. 1 had driven the jeep to various  places
\non the day previous to the occurrence is a proof of the fact
\nthat he knew driving.  There was no basis for the conclusion
\nthat it, was a sheer stroke of good fortune that he did\t not
\nmeet with any accident on that day.\n<\/p>\n
Now  let  us turn to the decided cases.\t  Dealing  with\t the
\nscope  of  S.  304A IPC, Sir Lawrence  Jenkins\tobserved  in
\nEmperor v. Omkar Rampratap(1) :\n<\/p>\n
\t       “To impose criminal liability under S.  304A,
\n\t      Indian  Penal Code, it is necessary  that\t the
\n\t      death should have been the direct result of  a
\n\t      rash  and\t negligent act of the  accused,\t and
\n\t      that  act must be the proximate and  efficient
\n\t      cause  without the intervention  of  another’s
\n\t      negligence.  It must be the cause causans,  it
\n\t      is not enough that it may have been the  cause
\n\t\t\t    sine qua non.”\n<\/p><\/blockquote>\n
\t       That,  in  our  opinion\tis  the\t true  legal
\n\t      position.\n<\/p><\/blockquote>\n
The scope of s. 304A IPC came to be considered by this Court
\nin   Kurban  Hussein  Mohammedali  Rangwalla  v.  State\t  of
\nMaharashtra<\/a>(2).\t In our opinion, the ratio of that  decision
\ngoverns\t the facts of the present case.\t The facts  of\tthat
\ncase  were  :  The appellant was  the  manager\tand  working
\npartner\t of  a firm which manufactured paints  and  varnish.
\nThe  factory  was  licensed by the  Bombay  Municipality  on
\ncertain\t conditions to manufacture paints involving  a\tcold
\nprocess\t and  to  store\t certain  Specified  quantities\t  of
\nturpentine,  varnish and paint.\t The factory did not have  a
\nlicence for manufacturing wet paints but nevertheless  manu-
\nfactured  them.\t Four burners were used in the\tfactory\t for
\nthe  purpose of melting rosin or bitumen by heating them  in
\nbarrels and adding turpentine thereto after the\t temperature
\ncooled\tdown  to a certain degree.   While  this  unlicensed
\nprocess was going on froth overflowed out of the barrel\t and
\nbecause of heat varnish and turpentine, which were stored at
\na  short  distance caught fire, as a result of\twhich  seven
\nworkmen\t died.\tThe appellant was prosecuted  and  convicted
\nunder  S. 304A and s. 285, IPC.\t Hi,-, appeal was  summarily
\ndismissed  by the Bombay High Court.  This Court  set  aside
\nthe conviction under S. 304A IPC, holding that
\n(1) 4B.L.R. 679.\n<\/p>\n
(2) [1965] 2 S.C.R. 622.\n<\/p>\n
521<\/span><\/p>\n
the  mere fact that the appellant allowed the burners to  be
\nused  in the same room in which varnish and turpentine\twere
\nstored,\t even though it would be a negligent act, would\t not
\nbe  enough  to make the appellant responsible for  the\tfire
\nwhich  broke out.  In the course of the judgment this  Court
\nobserved  that\tthe  cause of the fire was  not\t merely\t the
\npresence of the burners within the room in which varnish and
\nturpentine   were  stored,  though  that  circumstance\t was
\nindirectly responsible for the fire which broke out; what s.
\n304A  requires\tis  causing of death by doing  any  rash  or
\nnegligent  act and this means that death must be the  direct
\nor  proximate result of the rash or negligent act.   On\t the
\nbasis  of the facts of that case, this Court held  that\t the
\ndirect\tand  proximate cause of the fire which\tresulted  in
\nseven  deaths was the act of one of the workmen\t in  pouring
\nthe  turpentine\t too early and not the\tappellant’s  act  in
\nallowing the burners to burn in the particular room.  In the
\npresent case, we do not know what was the proximate cause of
\nthe  accident.\t We cannot rule Out the possibility  of\t the
\naccident  having  been\tcaused\tdue  to\t the  fault  of\t the
\ndeceased.    The  question  whether  appellant\tNo.  1\t was
\nproficient  in driving a jeep or not does not  conclude\t the
\nissue.\tHis proficiency in driving might furnish a  defence,
\nwhich  a  learner  could  not  have,  but  the\tabsence\t  of
\nproficiency did not make him guilty.  The only question\t was
\nwhether, in point of fact he was not competent to drive\t and
\nhis  incompetence  was\tthe cause of  death  of\t the  person
\nconcerned.\n<\/p>\n
On behalf of the prosecution reliance was placed on the\t de-
\ncision\tof  this  Court in Juggankhan  v.  State  of  Madhya
\nPradesh<\/a> (1), to which one of us was a party (Sikri, J).\t The
\nratio  of that decision does not apply to the facts  of\t the
\npresent\t case.\t In  that ,case, it  had  been\tconclusively
\nproved\tthat the rash or negligent act ,of the\taccused\t was
\nthe cause of the death of the person concerned.
\nFor  the  reasons mentioned above, we are  unable  to  agree
\n‘with the courts below that on the basis of the facts  found
\nby  them  the first appellant could have  been\theld  guilty
\nunder  s.  304A IPC.  We accordingly allow  his\t appeal\t and
\nacquit\thim of that offence.  From that finding, it  follows
\nthat  the  second appellant could not  have  been  convicted
\nunder s. 201 IPC.\n<\/p>\n
In  the result, the second appellant’s appeal is allowed  in
\nfull  and  he is acquitted of all the  charges.\t  The  first
\nappellant’s  appeal  is allowed in part and  his  conviction
\nunder  S. 304A is set aside.  But his other convictions\t are
\nsustained,  namely, his convictions under s. 3 read with  S.
\n112  of the Motor Vehicles Act and S. 89 of  the  same\tAct,
\nfor which offences only a sentence of fine had been  imposed
\nupon him.\n<\/p>\n
Appeal allowed.\n<\/p>\n
Y.P.\n<\/p>\n
(1) [1965] 1 S.C.R  14.\n<\/p>\n
522<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Suleman Rehiman Mulani & Anr vs State Of Maharashtra on 1 December, 1967 Equivalent citations: 1968 AIR 829, 1968 SCR (2) 515 Author: K Hegde Bench: Hegde, K.S. 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. 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