The main legal point established in the judgment is the application of the principles of intentional aid and abetment in establishing criminal liability, particularly in cases of rash and negligent driving.

1. The non-applicant Saidu, son of Sheikh Rahman, Musalman, and Fakruddin son of Hussain Bhai, were tried in the Court of the Magistrate, First Class, Betul, on the charge of causing grievous hurt to one Ramadhin by rash and negligent driving of a motor truck, an offence which is punishable under Section 338, Penal Code. Both of them were found guilty. Saidu was sentenced to suffer rigorous imprisonment for four months and Fakruddin to pay a fine of Rs. 1000, or in default to suffer rigorous imprisonment for four months. On appeal the Additional Sessions Judge, Betul, upheld the conviction of Fakruddin and the sentence passed against him but directed the acquittal of the non-applicant Saidu. This appeal is filed by the Provincial Government against Saidu's acquittal.

2. The non-applicant Saidu was the driver of a motor truck which was among about 50 trucks that were plied by Sadik and Co. in military camps round about Amla. Fakruddin, like the non-applicant Saidu, was employed in that company as a petrol inspector. On 11-11-1944, at about 5 P.M., Fakruddin, who had no licence to drive a motor vehicle, drove truck No. C.P.A. 1010, while the non-applicant Saidu was by his side. He was driving it from the military camp at Bokdhi to the Amla station. About two furlongs towards the Amla station, there is a sharp turning, and Fakruddin, not being able to control the vehicle at the turning, dashed against a pole of the wire fencing and knocked down one Ramadhin with the result that the left front wheel of the truck ran over and completely crushed the lower part of his left leg which had to be amputated to save his life.

3. The non-applicant Saidu pleaded in defence that he was himself driving the truck, but that plea was found to be false in both the Courts below. There is now no dispute about the fact that Fakruddin was driving the truck with the consent of the non-applicant Saidu, who was aware of the fact that Fakruddin had no licence to drive a motor vehicle. The only point which has been debated at the Bar is whether the non-applicant Saidu was liable to be convicted of the offence of rash and negligent driving which was actually committed by Fakruddin.

4. The learned Magistrate who tried the case based the conviction of Saidu on the analogy of a person learning to drive under a licensed driver. On that view the non-applicant would be equally guilty with Fakruddin as was the case in Alimuddin v. Emperor, 1945 AIR(Nag) 242. But in the present case there is no material on the record to warrant the assumption that Fakruddin was learning to drive under the guidance of the non-applicant Saidu.

5. The question which arises is whether the non-applicant Saidu cannot be regarded as an abettor of the offence. He was not charged with abetment but with the principal offence; but the essential facts which would have warranted the framing of a charge of abetment were all disclosed so as to give him an opportunity to meet them. It is now well-settled that there is no bar in law to convict a person of abetment without a distinct charge if the circumstances bring the case under Section 237, Criminal P.C.: see Begu v. Emperor Jnanadacharan Ghatak v. Emperor, 1929 AIR(Cal) 807 and Khmuan v. Emperor, 1931 AIR(Oudh) 274. That power can unquestionably be exercised by the appellate Court.

6. The undisputed facts are that the non-applicant Saidu who was in charge of the motor truck placed it under the control of Fakruddin with actual knowledge that he had no licence to drive a motor vehicle, and constructive knowledge that he was not trained to drive any motor vehicle. But for the fact that the non-applicant permitted him to drive the truck Fakruddin could not have committed the offence that he did. In other words, the offence was committed by Fakruddin in consequence of the non-applicant's aid which, as explained in Section 109, Penal Code, constitutes abetment.

7. It is contended that there cannot be abetment within the meaning of Section 107, Pena