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The conviction of the appellant No. 2 under s. 201 IPC de- pends 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) [1953] S.C.R. 94.

'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 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 homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

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 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 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.