1. In Criminal Case No. 529 of 1967 in the Court of the Judicial Magistrate, First Class, Harij, the applicant-accused came to be convicted for offences under Sections 304A and 279 of the Indian Penal Code. While he was sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/-, or, in default, to suffer further rigorous imprisonment for one month for an offence under Section 304A, he was sentenced to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 100/-, or, in default, to suffer rigorous imprisonment for seven days for an offence under Section 279 of the Indian Penal Code. He was, besides, convicted for an offence under Section 116 read with Section 112 of the Motor Vehicles Act and no separate sentence was passed of the same. Against that order passed on 24th July 1968 by Mr. J.S. Dasondi, Judicial Magistrate, First Class, Harij, the accused filed Criminal Appeal No. 97 of 1968 in the Court of the Sessions Judge, Mehsana, who, confirming the same, dismissed the appeal. Feeling dissatisfied with that order passed on 14-11-1968 by Mr. K.M. Satwani, Sessions Judge, Mehsana, the accused has come in revision before this Court.
2. The Courts below have considered the effect of the evidence adduced in the case and the conclusions reached by them are perfectly proper. The learned Sessions Judge has dealt with every point raised before him and after carefully appreciating the evidence and the circumstances disclosed therein, has rightly upheld the order of conviction passed against the accused in the case.
3. The only point made out by Mr. Shah, the learned advocate for the applicant-accused, however, is that a separate order of conviction and sentence passed against the accused for an offence under Section 279 is neither legal nor proper and that it is liable to be set aside. He invited a reference to a decision in the case of Shiva Ram v. State : AIR1965All196 where it was held that the offences defined by Sections 279 and 280 and 336 and 337 and 338 could be viewed as minor offences included within Section 304A, I. P. C. ., and the Court would not be justified in convicting the accused for an offence under Section 279 of the Indian Penal Code when he has been convicted for the offence under Section 304A of the Indian Penal Code which includes the lesser offence. Then in the alternative, he urged that a separate sentence for an offence under Section 279 cannot be passed in view of Section 71 of the Indian Penal Code, and for that he sought support from the unreported decision of mine in Criminal Appeal No.946 of 1964, D/-28-2-1996 (Guj) where on a similar point raised it was held that since the offence under Section 279 is covered in the larger offence for which he is held liable i.e. under Section 304A of the Indian Penal Code, no separate sentence for the offence under Section 279 is passed.
4. Now the offence under Section 279 is obviously a distinct offence much though it may be a minor offence in relation to the offences under Ss. 337, 338 or 304A of the Indian Penal Code. The mere fact that it happens to be a minor offence, it does not cease to be one having independent character, and it is for this reason that while he may well be convicted for the same, the Court has to take into account Section 71 of the Indian Penal Code while passing sentence for the same. Section 71 of the Indian Penal Code is obviously intended for such purposes so that if he is also found guilty for a greater offence, he cannot be given separate sentence for a minor one covered therein. All that is required is that the offence for which he is sentenced is committed in the same transaction. This view of mine finds support from the decision in the case of State v. Gulam Meer, AIR 1956 Madh Bha 141 (FB), where the Full Bench of that High Court held as under:-
'An offence under Section 279 is distinct from an offence under Section 337 or Section 338 and, therefore, a person convicted of an offence under Section 337 or Section 338 can also be convicted for an offence under Section 279. If, however, the two offences are committed in the same transaction, Section 71 will govern the assessment of punishment'.
With respect, I agree with the view that it is a distinct offence as against the one of the Allahabad High Court relied upon by Mr. Shah for the applicant.
5. That takes me to the alternative contention urged by him. On that point, there can hardly arise any controversy in view of Section 71 of the Indian Penal Code, Section 71 runs thus: -
'Where anything which is an offence is made up by parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided................................'
In the present case, the driving of the vehicle by the accused was found to be both rash and negligent so as to endanger human life or was likely to cause hurt or injury to any person. That constituted an independent offence punishable under Section 279 of the Indian Penal Code. Since the death of that person came to be caused in the same transaction while he was driving the vehicle, he committed another offence punishable under Section 304A of the Indian Penal Code and, therefore, he cannot be punished with more than one of such offences in absence of any specific provision in law. Since he is punished for the aggravated form of an offence under Section 304A of the Indian Penal Code, a sentence for an offence under Section 279 of the Indian Penal Code cannot, therefore, be passed. Such a question was considered by the Full Bench of the Bombay High Court in the case of Queen-Empress v. Malu, (1899) 1 Bom LR 142, where it was held that a person who has committed house-breaking in order to commit theft and theft can be charged with and convicted of each of these offences, and then it has said that a Court, awarding punishment under the provisions of Section 71, Indian Penal Code, should pass one sentence for either of the above offences and not a separate one for each offence.
6. It is, therefore, clear that the accused has been rightly convicted for each of the two offences under S. 304A and Section 279 of the Indian Penal Code, but the punishment given for the minor offence such as under Section 279 cannot be passed in view of the provisions contained in Section 71 of the Indian Penal Code. That being so, while we hold that the conviction of the accused for the offence under Section 279 is proper, the order of sentence passed by the trial Court and confirmed by the Sessions Court in appeal in that respect only shall be set aside. Instead, the order shall be that no sentence for the offence under Section 279 of the Indian Penal Code is passed.
7. The revision application is dismissed. Rule is discharged with this modification that the order of sentence for an offence under Section 279 of the Indian Penal Code is set aside and no sentence is passed in respect of that offence. The fine, if paid in respect of that offence, is ordered to be refunded to the accused.
8. Application dismissed.