BHARGAVA, J. - (1.) MADHOSINGH petitioner was convicted under secs. 279 and 338 of the Indian Penal Code by the learned Sessions Judge, Ajmer and sentenced to rigorous imprisonment for one month on each count and a fine of Rs. 500/- on both counts. In default of payment of fine he was to undergo further rigorous imprisonment for one month. Both the sentences were to run concurrently.
(2.) IT is said that on the night between 6th and 7th November, 1959, he was driving Jeep Car No. RJQ 202 on the Ajmer-Beawar road at about 11-30 in the night, rashly and negligently, and dashed against a culvert on the road resulting in injuries to the four occupants of the jeep and to one pedestrian Ramchander who was knocked down and sustained grievous injuries fracturing both his right tibia, fibula and left humarous. He was prosecuted in the court of the First Class Magistrate, No. 2, Ajmer and on his plea of guilty, was convicted and sentenced as mentioned above by the learned Magistrate. On appeal his conviction and sentence was upheld by the learned Sessions Judge, Ajmer and hence this revision, The main point raised in this revision is that the conviction of the petitioner both under secs. 279 and 338 of the Indian Penal Code was bad in law. It is urged that offence under sec. 279 is a minor offence and is a component ingredient of offence under sec. 3 38. It is further urged that even if the petitioner could be convicted for both offences separate sentences should not have been passed against him. Under sec. 279 driving a vehicle or riding on a public way rashly and negligently so as endanger human life or to be likely to cause hurt or injury to any other person has been made punishable. This is essentially an offence against public safety. The offence is not compoundable and is punishable with imprisonment for six months or with fine of Rs. 1,000 or with both. The offence is complete if a person drives any vehicle or rides on a public way in a rash and negligent manner so as to endanger human life. An offence under sec. 338 requires the causing of hurt or grievous hurt by doing any act rashly or negligently so as to endanger human life or the personal safety of others. The fact' mentioned in sec. 338 may include the driving of any vehicle or riding on public way rashly or negligently and in that sense the provisions of sec. 279 and sec. 338 may be said to be overlapping but they are not of the same nature and sec. 338 is not an aggravated form of sec. 279 and the two offences are distinct from each other. Offences under sec. 337 and 338 are against human body. Unless hurt or grievous hurt by rash and negligent driving has been caused, no offences under sec. 337 or 338 can be said to be committed. Further an offence under sec. 3 3 8 is compoundable at the instance of the person receiving grievous hurt but the offence under sec. 279 is not compoundable. Even sec. 337 cannot be said to be an aggravated form of an offence than sec. 279 because the extent of the fine which may be imposed under the later section is greater than what can be imposed under the former offence. It may be that one of the ingredients constituting the offence under sec. 338 i. e. , the act of driving rashly and negligently may independently constitute an offence falling under sec. 279 but it does not mean that both the offences under these sections are of the same nature and character. I am, therefore, definitely of the view that offences under sec. 279 and 338 are distinct offences and a person can be separately convicted under these offences. A similar questlon"came up for decision before the Madhya Bharat High Court and a Full Bench of the Court in State Vs. Gulam Meer, (1) considering a number of cases on the point held that: - "an offence under sec. 279 is distinct from an offence under sec. 237 or sec. 3 38 and therefore a person convicted of an offence under sec. 337 or sec. 338 can also be convicted for an offence under sec. 279. If, however, the two offences are committed in the same transaction sec. 71 will govern the assessment of punishment. " In the case of Ramrup Vs. the Crown, (2) the accused driver of motor lorry was driving a lorry. A boy 13 years old was sitting by his side. He allowed the boy to drive the lorry. When the lorry was going at high speed, the body could not manage it. It overturned and some passengers were injured. The accused was convicted both under sec. 279 and 338 of the Indian Penal Code though the point in question was not decided in the case. In the King Vs. Stringar, (3) the appellant was charged on an indictment containing two counts (1) manslughter of a man who was knocked down and killed by the appellant's motor lorry; (2)driving the lorry in manner dangerous to the public contrary to sec. 11 of the Road Traffic Act, 1933. The jury acquitted the appellant of manslaughter, but convicted him of dangerous driving. On a submission that this verdict was bad, in that the mens rea required for the two offences was identical, and that it was therefore impossible for the jury to negative that mens rea on the first count, and to find it proved on the second, Mackinnon J. overruled the submission, and upheld the conviction. He sentenced the appellant to one month's imprisonment in the second division, but admitted him to bail, and granted a certificate that the case was fit for appeal. It was held by the court of criminal appeal that - "the conviction was right. Each count in an indictment is a separate indictment, and since the appellant on an indictment for manslaughter could not have been convicted of dangerous driving, he could not have pleaded autrefois acquit if the charge of dangerous driving had been tried separately. It is, however, in the opinion of the Court, undesirable that a charge of dangerous driving should be made a count in an indictment for manslaughter. Where the prosecution desires to prefer both charges they ought to do so in two separate indictments. " As for the sentence sec. 71 of the Indian Penal Code prescribes a limit of punishment in cases where offence is made up of several parts. In the present case rash and negligent driving by itself is ah offence but when grievous injury is caused to any person by such rash and negligent driving a different offence is committed. In such circumstances sec. 71 prescribes that the offender shall not be punished with more sever punishment than the court would hold him of any one of such offences. When two distinct offences are committed sentences passed under both offences cannot be said to be illegal. But the measure of punishment would be as is laid down under sec. 71. In the present case offence under sec. 338 is punishable with rigorous imprisonment for two years or with a fine which may extend to Rs. 1,000/- or with both. The sentences therefore passed in this case cannot be said to be contrary to the provisions of sec. 71. However, looking to the circumstances of the case that both the offences were committed in the same transaction, it would be proper that both the sentences are allowed to run concurrently and the fine is reduced to Rs. 125/- under each count. This revision application is therefore, partly allowed, conviction of the petitioner under secs. 279 and 338 of the Indian Penal Code is maintained and he is sentenced to rigorous imprisonment for one month and a fine of Rs. 125/- under each count. The sentences will run concurrently, in default of payment of fine the petitioner will undergo further rigorous imprisonment for one month. . ;