Case ID: 2327

Judgment:
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. 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 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 Rampratap(1) : "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 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 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) 4B.L.R. 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 I.P.C. and sections 3	 89 and 112 of the Motor Vehicles Act and the second appellant under section 201 I.P.C.	 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 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 section 304 A I.P.C. could not be sustained	 the conviction of second appellant under section 201 I.P.C. 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 I.P.C. [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 B.L.R. 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.