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(1968) 2 SCR 515 : AIR 1968 SC 829 : 1968 Cri LJ 1013

In the Supreme Court of India

(BEFORE K.S. HEGDE, S.M. SIKRI AND J.M. SHELAT, JJ.)

SULEMAN REHIMAN MULANI & ANOTHER … Appellants;

Versus
STATE OF MAHARASHTRA … Respondents.
Criminal Appeal No. 50 of 1965* , decided on December 1, 1967
Advocates who appeared in this case :
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 Respondents.
The Judgment of the Court was delivered by
K.S. HEGDE, J.— In this appeal by special leave against the judgment of the High
Court of Bombay in criminal revision Application 917 of the 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.
2. In the trial court there were as many as nine accused. All the accused excepting
Accused 1 and 2 who are Appellants 1 and 2 respectively in this Court, were,
acquitted.
3. The prosecution case is as follows: The acquitted third accused was the owner of
the jeep bearing registration No. BYF 5448. Accused 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 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 only a learner's licence and no person having a valid licence for driving
was by his side.
4. The courts below have accepted the above facts and on the basis of those facts,
the trial court convicted the Appellant 1 under Section 304-A 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.
5. 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
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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.
6. The conviction of Appellant 2 under Section 201 IPC depends on the
sustainability of the conviction of Appellant 1 under Section 304-A IPC. If Appellant 1
was rightly convicted under that provision, the conviction of Appellant 2 under Section
201 IPC on the facts found cannot be challenged. But on the other hand, if the
conviction of Appellant 1 under Section 304-A 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 v. State of Punjab1 .
7. Therefore the principal question for decision is whether on the facts found,
Appellant 1 was rightly convicted under Section 304-A 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 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:
“It is however, a fact conclusively established and not disputed before me that
Accused 1 had only a learner's licence at the material time. It is not even suggested
before me that Accused 2 held a driving licence so that he could act as a trainer for
Accused 1. In fact, there is no suggestion by the defence that there was a trainer
by the side of Accused 1. Thus on the facts established, it is quite clear that at the
material time, the jeep was driven by Accused 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 304-A IPC.”
8. 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 Section 304-A 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 Section 304-A IPC.”
9. Assuming that the High Court was right in its conclusion that Appellant 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 304-A IPC. The prosecution must go further and prove that it was that rash or
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negligent act of his that caused the death of the deceased.
10. Section 304-A says
“Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable 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.
11. 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 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 1 had considerable driving experience.
Unfortunately the English notes of evidence by the learned trial Magistrate do not
indicate that the witness stated that Accused 1 had driving experience, but the
evidence recorded in Marathi undoubtedly indicates that the witness claims to have
seen Accused 1 driving for about six months to a year. The witness seems to be a
relation of Accused 2, though not a near relation, and his word cannot be taken at
par. Moreover the admitted fact that at the material time Accused 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 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 1 did not meet with any accident during his trip
from Malshiras to Phaltan and some other places.”
12. 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 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 re-examination 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 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.
13. Now let us turn to the decided cases. Dealing with the scope of Section 304-A
IPC, Sir Lawrence Jenkins observed in Emperor v. Omkar Rampratap2 :
“To impose criminal liability under Section 304-A of the 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
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enough that it may have been the cause sine qua non.”
That, in our opinion is the true legal position.
14. The scope of Section 304-A IPC came to be considered by this Court in Kurban
Hussein Mohammedali Rangwalla v. State of Maharashtra3 . 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 Section 304-A and Section 285 IPC. His appeal was summarily
dismissed by the Bombay High Court. This Court set aside the conviction under
Section 304-A IPC, holding that 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 304-A 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 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.
15. On behalf of the prosecution reliance was placed on the decision of this Court in
Juggankhan v. State of Madhya Pradesh4 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.
16. 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 304-A 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.
17. 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 304-A 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.
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———
* 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.
1
(1953) SCR 94
2 4 BLR 679
3 (1965) 2 SCR 622
4 (1965) 1 SCR 14

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