minal 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 section R Chari O P Malhotra V N Ganpule P C Bhartari and O C Mathur for the appellants
M section K Sastri and section 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 91764 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 section 304A IPC section 3 read with section 112 of the Motor Vehicles Act and under section 89 of the same Act
It convicted the second appellant under section 201 IPC section 5 as well as under section 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 section 5 or under section 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 section 201 IPC de pends on the sustainability of the conviction of appellant No 1 under section 304A IPC
If appellant No 1 was rightly convicted under that provision the conviction of appellant No 2 under section 201 IPC on the facts found cannot be challenged
But on the other hand if the conviction of appellant No 1 under section 304A IPC cannot be sustained then the second appellant s conviction under section 201 IPC will have to be set aside because to establish the charge under section 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 section 201 IPC see the decision of this Court in Palvinder Kaur vs State of Punjab 1
Therefore the principal question for decision is whether on the facts found appellant No 1 was rightly convicted under section 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 1 518 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 section 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 section 304A IPC Sir Lawrence Jenkins observed in Emperor vs Omkar Rampratap1  To impose criminal liability under section 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 section 304A IPC came to be considered by this Court in Kurban Hussein Mohammedali Rangwalla vs State of Maharashtra2
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 section 304A and section 285 IPC
Hi  appeal was summarily dismissed by the Bombay High Court
This Court set aside the conviction under section 304A IPC holding that 1 4BLR 679
2  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 section 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 vs 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 section 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 section 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 section 304A is set aside
But his other convictions are sustained namely his convictions under section 3 read with section 112 of the Motor Vehicles Act and section 89 of the same Act for which offences only a sentence of fine had been imposed upon him
Appeal allowed


Summary:
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 section 304 A IPC and sections 3 89 and 112 of the Motor Vehicles Act and the second appellant under section 201 IPC and sections 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 section 304 A could not be sustained
517 H The requirements of section 304 A IPC 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 section 304 A IPC could not be sustained the conviction of second appellant under section 201 IPC had to be set aside
Because to establish the charge under section 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 section 201 IPC 517 D G 521 F G Palvinder Kaur vs State of Punjab  and Kurban Hussein Mohammedan Rangwalla vs State of Maharashtra   followed
Emperor vs Omkar Rampratap 4 BLR 679 approved
516 Juggankhan vs State of Madhya Pradesh  distinguished
The second appellant could not be convicted either under section 5 or section 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