Abani Kumar Kirty, J. - (1.) This revision has been filed by Shri Krishna against his conviction u/Ss. 279 and 338 of the IPC, where -under he has been respectively sentenced to pay fines of Rs. 100/ - and Rs. 150/ - and in default of payment of the same to undergo three months' and six months' rigorous imprisonments. The courts below have held that the applicant, who was driving Govt. Roadways Bus No. UPI 1405 on National Highway No. 2, was guilty of rash and negligent driving. In consequence of which an accident took place injuring two persons and causing fatal injury to one of the he -buffaloes of the cart with which the bus collided. The finding is supported by the evidence on record and calls for no interference in exercise of revisional powers. The sentences awarded to the applicant can by no means be said to be excessive or severe.
(2.) The learned counsel for the applicant has, however, contended that simultaneous conviction and sentence u/Ss. 279 and 338 of the IPC both is not warranted by law. The learned counsel in support of his argument has relied on S. 71 of the IPC and a number of reported decisions. The learned counsel for the State, on the other hand, has submitted that in convicting the applicant under both the Ss. and in awarding separate sentences the courts below have not committed any error of law.
(3.) The contention of the learned counsel for the applicant is that although S. 279 of the Penal Code is in respect of a distinct offence for which an accused can be convicted and sentenced, S. 338 constitutes an offence of which the essential ingredients are the same as those of S. 279 plus the further ingredient that the accused by his rash and negligent act has caused grievous hurt so as to endanger human life or the personal safety of others. In short, the submission is that S. 338 in substance and reality is an aggravated form of the offence u/S. 279 of the Code. This being so, according to the learned counsel, the applicant legally could not have been convicted and sentenced separately u/S. 279, while being convicted and sentenced u/S. 338 of the Penal Code. S. 71 of the Penal Code runs thus: - - Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or Where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences. The scope and ambit of S. 71 aforesaid has been considered in a number of cases on which the learned counsels have placed reliance. Before considering the cases cited at the bar, it would be appropriate to examine the relevant sections, namely, Ss. 279, 336, 337 and 338 of the Code.;