JUDGEMENT : The appellant was convicted under Sections 279 and 338 of the Indian Penal Code and given separate sentences. It was ordered that the substantive sentences of imprisonment should run concurrently.

2. The first argument of the learned counsel for the appellant is that the offence under Section 338 of the Indian Penal Coda includes the offence under Section 279 of the Indian Penal Code and therefore separate sentences should not be given, and reliance was placed on Ragho Prasad v. Emperor, AIR 1939 Pat 388, which relied on Champa v. Emperor, AIR 1928 Pat 326.

3. Section 235 of the Criminal Procedure Code reads as follows :-

" 235 (1) If, in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) If the acts alleged constitute 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 the person accused of them may be charged with, and tried at one trial for, each of such offences.

(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.

(4) Nothing contained in this section shall affect the Indian Penal Code Section 71"

In view of the provision of Sub-Section (2) of Section 235, Cr. P.C., a person can be charged, tried and convicted under both Ss. 279 and 338 of the Indian Penal Code. As regards the question of sentences, Section 71 of the Indian Penal Code reads as follows :-

" 71. 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 his offences, unless it be so expressly provided.

Where anything is an offence tailing 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."

4. The question is whether in the case of an offence under Section 279 and Section 338 of the Indian Penal Code, the offence is made up of parts, any of which parts is itself an offence, falling under the other section Sections 338 and 279 of the Indian Penal Code read as follows :

'338. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years or with the which may extend to one thousand rupees, or with both.

279. Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, which may extend to one thousand rupees or with both."

None of the parts of the offence defined in Section 338 of the Indian Penal Code is sufficient to constitute an offence under Section 279 of the said Code, because under Section 279, the ingredient of driving any vehicle or riding on a public way is essential, which is not necessary under Section 338. The offence under Sec. 338 of the Indian Penal Code need not be committed by driving a vehicle or riding on a public nay and therefore Section 71, I.P. Code cannot be applied to Sections 338 and 279, I.P. Code. In AIR 1928 Pat 326, it is stat

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