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6.During the trial, the prosecution in order to prove the guilt of the Petitioner/Accused, had examined P.W1 to PW8 on its side and marked documents Ex.P1 to Ex.P10. No material object was produced. On the side of the defence, no oral or documentary evidence were adduced. The Trial Court found the Petitioner/Accused not guilty for the offence under Section 279 of IPC and acquitted the accused as per Section 255(1) Cr.P.C., whereas found that the accused / petitioner guilty for the offences under Section 337 (2 counts) IPC and convicted and imposed a fine of Rs.300/- for each count and found the accused / petitioner guilty for offence under Section 338 IPC and imposed a fine of Rs.600/- and in default to pay the fine amount, the accused was ordered to undergo simple imprisonment for two weeks for each count.

13.On analysing the sections above viz. Section 279, 337 & 338 IPC, it is seen that they are alike or similar offences. The similarity and common essential features in the offence being rashness and negligence of the accused, in Section 279 IPC, the essential elements are driving or riding of a vehicle by a person on a public way in a rash and negligent manner as to endanger human life or to be likely to cause hurt or injury to any other person. In Section 337 IPC, the essential elements are the offender by doing any act by rashness or negligence causes hurt to any person and in Section 338 IPC, the person by doing any act by rashness or negligence causes grievous hurt to any person. In all these three sections, as stated above, the essential element and the basic requirement which is needed to be proved is the rashness and the negligent act of the offender and thereby all the three https://www.mhc.tn.gov.in/judis/ offences fall within the category of cognate offences. However, with varying degrees of the result in all these offences, the prosecution is bound to prove the rashness and negligence on the part of the offender. It is relevant to refer to a relevant paragraph in Rafiq Ali @ Rafi Vs. State of U.P. Reported in 2011 SCC 3114;

10.Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the Courts can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore-indicated.”
14.At the cost repetition, as stated above, the offence under Sections 279, 337 & 338 IPC are cognate offences and the basic and essential elements which are commonly required to be proved by the prosecution relating to the offences under Section 279, 337 & 338 IPC are rashness and negligence.

16.In this case, placing reliance on the evidence let in by the prosecution, the Trial Court had rendered a categoric finding that the rash and negligent manner of driving is not proved by the prosecution beyond all reasonable doubts and the Trial Court has found that the petitioner is not guilty of the offence under Sections 279 IPC and had acquitted the petitioner as per Section 255 (1) Cr.P.C., whereas strangely on the very same set of facts the Trial Court, without proper application of mind and without proper appreciation of evidence and without properly analysing evidence relating to the offences for which the petitioner was charged for, had found the petitioner guilty under Section 337 (2 counts) & 338 IPC. It is not the case where the petitioner has been found guilty of rashness and negligence on the whole and convicted for graver offences and acquitted for lesser offence as per Section 71 of IPC. The Trial Court, thereby, committed an error in https://www.mhc.tn.gov.in/judis/ finding the petitioner guilty for offence under Sections 337 (2 counts) & 338 IPC on the very same set of evidence. Such being the case, the Appellate Court also committed an error by confirming the finding of conviction and sentence for offences under Section 337 (2 counts) & 338 IPC. Both the courts have failed to properly analyse the evidence and materials on record.