The mere fact that a person holds only a learner's license does not make him guilty of a rash or negligent act under Section 304-A of the IPC, if there is evidence that he had driven the vehicle to various places on the day previous to the occurrence.

Judgement

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.

2. 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.

3. 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 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 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 No. 1 under S. 304-A 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.

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 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.

6. The conviction of the appellant No. 2 under S. 201 IPC depends on the sustainability of the conviction of appellant No. 1 under S. 304-A 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. 304-A IPC cannot he 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, 1953 SCR 94.

7. Therefore the principal question for decision is whether on th