Suleman Rehiman Mulani & ANR Vs.
State of Maharashtra  INSC 284 (1 December 1967)
01/12/1967 HEGDE, K.S.
CITATION: 1968 AIR 829 1968 SCR (2) 515
D 1968 SC1319 (5) R 1972 SC1150 (8)
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.
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,  S.C.R. 94, and Kurban Hussein Mohammedan Rangwalla v. State of
Maharashtra  2 S.C.R. 622, followed.
Emperor v. Omkar Rampratap 4 B.L.R. 679,
516 Juggankhan v. State of Madhya Pradesh,
 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.
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 Revision
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
The Judgment of the Court was delivered by
Hegde, J. In this appeal by special leave against the judgment 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 accused 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
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
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 depends 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)  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 consideration, 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
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
manufactured 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)  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 decision 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
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.
(1)  1 S.C.R 14.