f

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MAINA SINGH

v.

STATE OF RAJASTHAN

March 17, 1976

[R. S. SARKARIA AND P. N. SHJNGHAL, JJ.]

651

Penal Code-Murder-Co-iiccused acquitted-Appellant alone co11victed-

s. 149 or s. 34-lf applicable.

A

B

'The appellant and 'tour others Were charged 'vith offences under S<i. 302/149

I.P.C., the appellant with having shot at the deceased and the other accused

with giving blows to the deceased with a sharp-edged weapon. The trial co1ni

acquitted the four accused but convicted the appellant under s. 302 read with

s. 34, I.P.C-. The High Court dismissed the appeal of the State against acquit-C

tal as also lhe appellant's appeal against conviction.

In appeal to this Court, it was contended for the appellant that it was not

permissible to take the view that a criminal act was done by the appellant

in furtherance of the common intention of the other accu~ed when those accus­

ed who had been named had all been acquitted and that all that

was permis­

sible for the High Court

was to convict the appellant of an offence \vhich he

might have committed in his individual capacity. D • 'Allowing the appeal in part,

HELD :

It was not permissible for the High Court to invoke

s. 149 or s. 34.

J.P.C. [659D-E]

( 1) In a given case even if the charge disclosed only the named persons as

co-accused and the prosecution witnesses confined their testimony to them. it

would be permissible to conclude that others, hamed or unnamed, acted con- E

jointly with one of the charged accused if there was other evidence to lead

to that conclusion, but not otherwise. [657D]

The charge in the present case related to the commission of the offence

of unlawful assembly by the appellant along with four named co-accused, and

with no other person. The trial in fact went on that basis throughout. There

was also no direct

or circumstantial evidence to show that the offence was

committed by the appellant along with any other unnamed person.

So when

the other four co-accused had been given the benefit of doubt and acquitted,

it would not be permissible to take the

view that there must have been some

other person along with the appellant in causing injuries

to the deceased. The

appellant would accordingly be responsible for the offence, if any, which could

be shown to have been committed by him without regard to the participation

of others. [659C-E]

Dharam Pal v. The

Stale of U.P., A.l.R. 1975 S.C. 1917 explained and fol·

lowed.

The Ki11g v. Plummer, [1902] 2 K.B. 339; Topandas v. The State of Bombay,

[1955] 2 S.C.R. 881; Mohan Singh v. State of Punjab, [1962] Supp. 3 S.C.R.

-'. 848; Krishna Guvind Patil v. State of Maharashtra, [1964] 1 S.C.R. 678; Ram

Bilas Singh

v.

State tYf Bihar, [1964] I S.C.R. 775 and Yeswa11t v. State of

Maharashtra, [1973] I S.C.R. 291 referred to.

F

G

(2) The appellant was guilty of voluntarily causing grievous hurt to the

deceased by means of an instrument for shooting and was. therefore, guilty

H

of an offence under s. 326

I.P.C. From the medical evidence, it is not possible

to say that the death of the deceased was caused by gun shot or by blunt

weapon injuries. It however proved that the appellant inflicted gun shot in­

juries

on the deceased, one

of the injuries being grievous. [659H]

652 SUPREME COURT REPORTS (1976] 3 S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 242

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of 1971.

Appeal by Special Leave from the Judgment and Order dated

21-4-1971 of the Rajasthan High Court at Jodhpur in D. B. Criminal

Appeal

No. 343 of 1969.

Harbans

Singh for the Appellant.

S. M. lain for Respondent.

The Judgment of the Court

was delivered by

SHINGHAL, J.-This appeal of Maina

Singh arises out of the judg­

ment of the Rajasthan High Court date<! April 21, 1971 upholding

the trial court's judgment convicting

him of an offence under s.

302

read with s. 34 I.P.C. for causing the death of Amar Singh and of

an offence under

s. 326

I.P.C. for causing grievous injuries to Amar

Singh's son Ajeet Singh (P.W. 2), and sentencing him to imprisonment

for life for the offence of murder and to rigorous imprisonment for

three years and a

fine of Rs.

100 /-for the other offence.

The deceased Amar Singh and accused Maina Singh and his three

sons Hardeep Singh, Jee! Singh and Puran Singh used to live in 'chak'

No. 77 GB, in Ganganagar district of Rajasthan while Narain Singh

used to live in another 'chak'. It was alleged that the relatic>ns bet­

ween Amar Singh and Maina Singh were strained, as Maina Singh

suspected that Amar Singh was giving information about his smuggling

activities. Amar Singh was having some construction work done in

his house and had engaged Isar Ram (P.W. 3) as a mason. On

June 29, 1967, at about sun set, the deceased Amar Singh, his son

Ajeet Singh (P.W. 2) and Isar Ram (P.W. 3) went to the 'diggi' in

'murabba' 35 for bath. Ajeet Singh took his bath, and was changing

his clothes and Isar Ram was nearby. Amar Singh was cleaning his

'Iota' after attending the call of nature. It is alleged that at that time

Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran

Singh came to the 'diggi' along with Narain Singh. Maina Singh was

armed with a

.12 bore gun,

Puran Singh with a 'takua' and the other

three with 'gandasis'. Maina Singh fired at Amar Singh, but could

not hit

him. The gun shots however hit Ajeet

Singh (P.W. 2) on his

legs and he jumped into a dry water course which was nearby to take

cover. Maina Singh fired again, but without success. Amar Singh

ran towards the sugarcane field crying for help but was chased by the

accused. Ajeet Singh thereupon ran towards 'chak' No. 78 GB and

ultimately went and lodged a report at Police Station Anoopgarh

at 10 p.m. after covering a distance of about six miles. The five

accused however followed Amar Singh. Maina Singh fired his gun at

Amar Singh and he fell down. The other accused went near him and

gave 'gandasi'

blows, and Maina

Singh gave a blow or two with the

butt end of his

guu which broke and the broken pieces fell down.

Amar

Singh sue cum bed to his injuries on the spot, and the accused

ran

away.

On the report of Ajeet Singh about the incident which took place

by the time he left for the police station, the police registered a case

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MA!NA SINGH v. RAJASTHAN (Shinghal, !.) 653

for an offence under s. 307 read with s. 149 I.P.C. and started investi­

gation. The body of Amar Singh was sent for post-mortem examina­

tion. The report

Ex.

P. 9 of Dr. Shanker Lal (P.W. 5) is on the

··record. The injuries of Ajeet Singh (P.W. 2) were also examined by

Dr. Shanker Lal and his report in that connection is Ex. P .10. It was

found that there were several gun shot injuries, incised wounds and

lacerated wounds on the body of the deceased, and there were as many

as 12 gun shot wounds on the person of Ajeet Singh (P.W. 2). All

the li c accused were found absconding and could be taken into

custody after proceedings were started against them under

ss. 8 7 and 88

Cr.

P. C. Maina Singh held a licence for gun Ex. 23 and led to its

recovery during the course of the investigation vide memorandum

Ex. P.43. At that time, its butt was found to be missing. Its broken

. pieces had however been recovered by the investigating officer earlier,

along with the empty cartridges.

The prosecution examined Ajeet Singh (P.W. 2), Isar Ram (P.W.

3) and Smt. Jangir Kaur (P.W. 7) the wife of the deceased as eye wit­

nesses of the incident. The accused denied the allegation of the prose­

cution altogether, but Maina Singh admitted that the gun belonged to

him and he held a licence for it. The Sessions Judge disbelieved the

evidence of Sm!. Jangir Kaur (P.W. 7) mainly for the reason that

her name had not been mentioned in the first information report.

He

took the view that the statements of Ajeet

Singh (P.W. 2) and Isar

Ram (P.W. 3) were inconsistent regarding the part played by Hardeep

Singh, Jeet Singh, Narain Singh and Puran Singh accused, and although

he held that one or more of the accused persons, besides Maina Singh,

might be responsible for causing injuries to the deceased, along with

Maina Singh, he held further that it could not be ascertained which one

of the accused was with him. He also took the

view that

"some one

else might have been with him" and he therefore gave the benefit of

doubt to accused Hardeep Singh, Jeet Singh, Puran Singh and Narain

Singh and acquitted them. As the statements of Ajeet Singh (P.W. 2)

and Isar Ram (P.W. 3) were fonnd to be consistent against appellant

Maina Singh, and as there was circumstantial evidence in the shape

of the recovery of empty cartridges near the dead body, and gun Ex. 23.

as well as the medical evidence, and the fact that the accused had

absconded, the learned Sessions Judge .convicted and sentenced him

as aforesaid.

An appeal

was preferred by

the, State against the acqnittal of the

remaining four accused; and Maina Singh also filed an appeal against

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his conviction. The High Court dismissed both the appeals and main-G

tained the conviction and sentence of Maina

Singh as aforesaid.

Mr. Harbans Singh appearing on behalf of appellant Maina Singh

has not been able to challenge the evidence on which appellant Maina

Singh has been convicted, but he has raised the substantial argument

that he could not have been convicted of the offence of murder under

s. 302 read with s. 34 I.P .C. when the four co-accused had been

acqnitted and the Sessions Judge had found that it was not possible to

record a conviction under

s.

302 read with s. 149 I.P.C. or s. 148

I.P.-C. It has been argued that when the other four accused were given

H

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654 SUPREME COURT REPORTS (1976) 3 S.C.R.

the benefit of doubt and were acquitted, it could not be held, in law,

that they formed an unlawful assembly or that any offence

was com­

mitted by appellant Maina

Singh in prosecution of the common object

of that assembly.

It has been argued further that, a fortiori, it was not

permissible for the Court of Sessions or the High Court to take the

view that a criminal act was done .by appellant Maina

Singh in further­

ance of the common intention of the "other accused" when those accus­

ed had been named to be no other than Hardeep Singh, Puran Singh,

Jeet Singh and Narain Singh who had all been acquitted. It has there­

fore been argued that all that was permissible for the High Court was to

convict appellant Maina Singh of any offence which he might have

committed in

his individual capacity, without reference to the partici­

pation of any other person in the crime.

/On the other hand, it has

been argued by Mr. S. M. Jain that as the learned Sessions Judge had

acquitted the remaining four accused by giving them the benefit of

doubt, and had recorded the finding that one or more of the accused

persons or some other person might have participated in the crime

along with Maina Singh, the High Court was quite justified in upholding

the conviction of the appellant Maina Singh of an offence under s.

302/34 l.P.C.

The relevant portion of the judgment of the trial court, which bears

on the controversy and

has been extracted with approval in the im­

punged judgment of the High Court,

is as follows,-

"The injuries found on the person of the deceased Amar

Singh were with fire arm, blunt as well as sharp weapon.

fire arm injuries and the blunt weapon injuries have been

assigned to Maina Singh and so there must have been other

person also along with Maina Singh in causing injuries to

the deceased.

It can be so inferred from the statements of

Isar Ram and Ajeet

Singh also. These facts could no doubt

create a strong suspicion that one or more of the accused

persons might be responsible along with Maina Singh in caus"

ing injuries to the deceased. In view of the statement of Isar

Ram and A jeet Singh it cannot however be ascertained

which one of the accused was with Maina Singh and it was

also possible that some one else might have been with him.

In such a case the prosecution version against these four

accused persons are not proved beyond doubt. They are

therefore not

guilty of the offence with which they have been charged."

It would thus appear that the view which has found favour with the

High Court

is that as there were in.iuries with fire arm and with blunt

and sharp-edged weapons, and

as the fire arm and the blunt weapon

injuries had been ascribed to Maina

Singh, there must have been one

other person with him in causing the injuries to the deceased. At the

same time, it has been held further that these facts could only cr·3ate

a strong suspicion "that one or more of the accused persons might

be responsible along with Maina Singh in causing the injuries to the

deceased", but it could not be ascertained which one of the accused

was with him and that it was also possible that "some one else might

have been with him." The finding therefore is that the other person

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MAINA SINGH v. RAJASTHAN (Shinghal, /.) 655

might have been one of the other accused or some one else, and not

that the other associate

in the crime was a person other than the

accused. Thus the finding

is not categorical and does not

exdude

the possibility of infliction of the injuries in furtherance of the common

intention of one of the acquitted accused and the appellant.

Another significant fact which bears on the argument of Mr.

Harbans Singh is that while in the original charge sheet the Sessions

Judge specifically foamed appellant Mairni Singh and the other accused

Hardeep Singh, Puran Singh, Jeet Singh and Narain Singh as forming

an unlawful assembly and for causing the death of Amar Singh in

furtherance of the common object of that assembly, he altered that

charge but retained, at the same time, the charge that Maiua Singh

formed an unlawful assembly along with the "other accused" with the

common object of murdering Amar Singh and intentionally caused

injuries to him along

with the

"other· accused" in prosecution of that

common object.

In this case therefore Maina

Singh and the other

four accused were alleged, all along, to have participated

in the crime

and were named in the charge sheet

as the perpetrators of the crime

without there being an allegation that some other person (besides the

accused) took part

in it in any manner whatsoever. It was in fact

the case from the very beginning, including the first information

report, that the offence

was committed by all the five named accused,

and. even the evidence of the prosecution was confined to them all

through and to no other person. The question is whether the High

Court was right in upholding the conviction of the appellant with

reference to

.s.

· 34 l.P.C. in these circumstances ?

Such a question came up for consideration in this Court on earlier

occasions, and

we shall refer to some of those decisions in order

to appreciate the argument of Mr. Jain that the decision in

Dharam

Pal v. The State of U.P. (

1

) expresses the latest view of this Court and

would justify the appellant's conviction by invoking

s. 34 I.P.C.

We may start by making a reference to The King v.

Plummer(')

which, as we shall show, has been cited with approval by this Court in

some of its decisions. That was a case where there was a trial of an

indictment charging three persons jointly with conspiring together.

One of them pleaded guilty, and a judgment was passed against him,

and the other

two were acquitted. It was alleged that the judgment passed against the one who pleaded guilty was bad and could not

stand. Lord Justice Wright held that there

was much authority to the

effect that if there

was acquittal of the only alleged co-conspirators,

no judgment could have been passed on the appellant, if he had not

pleaded

guilty, because the verdict must have been regarded as repug­

nant in finding that there

was a criminal agreement between the apoel­

lant and the others and none between them and him. In taking that

view he made a reference to Harrison v. Errison(

3

) where noon an in­

dictment of three for riot

two were found not guilty and one guiltv.

and upon error brought it

was held a

"void verdict". Bruce J., who

was the other judge in the case made a reference to the following

fl) A.I.R. 1975 S.C. 1917. (2) [1902] 2. K.B. 339.

(3l [1365] Popham 202.

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656

SUPREME COURT REPORTS [1976] 3 S.C.R.

statement in Chitty's Crimina:l Law while agreeing with the view taken

by Wright

J.,-

"And it is holden that if all the defendants mentioned in

the indictment, except one, are acquitted, and

it is not stated

as a conspiracy with certain persons unknown, the conviction

of the single defendant will

be invalid, and no judgment can

be passed upon

him."

This Court approved Plummer's case (supra)' in its decision in

To pandas v. The State of Bombay(

1

). That was a case where four

named individuals were charged with having committed an offence

under

s.

120-B I.P.C. and three out of those four were acquitted. This

Court held that the remaining accused conld not

be convicted of tl1e

offence as his alleged co-participators had been acquitted, for that

would

be clearly illegal.

·

A similar point came up for consideration in Mohan Singh v. State

of Punjab('). There two of the five persons who were tried together

were acquitted while two were convicted under

s.

302 read with s. 149

and

s. 147

I.P.C. In the charge those five accused persons and none

others were mentioned as forming the unlawful assembly and the

evidence led in the case was confined to them. The proved facts showed

that the two appellants and the other convicted person, who inflicted

the fatal blow, were actuated

by common intention of

fatally assaulting

the deceased. While examining the question of their liability, it was

observed as

follows,-

"Cases may also arise where in the charge, the prosecu­

tion names

five or more persons and alleges that they consti­

tuted

an unlawful assembly. In such cases, if both the charge

and the .evidence are confined to the

person< n.amed in the

charge and out of the persons so named two or more are

acquitted leaving before the court less than

five persons to be

tried, then

s. 149 cannot be invoked. Even in such cases, it is

possible that though the charge names five or more persons

as composing

an unlawful assembly, evidence may never­

theless show that the unlawful assembly consisted of some

other persons

as well who were not identified and so not

named.

In such cases, either the trial court or even the

High Court in appeal may

be able to come to the conclusion

that the acquittal of some of the persons named in the charge

and tried will not necessarily displace the charge under

section 149 because along with the two

or three persons con­

victed were others who composed the unlawful assembly

but who have not been identified and so have not been named.

In such cases, the acquittal of one or more persons named

in the charge does not affect the validity of the charge under

section 149 because on the evidence the court of facts is

liable to reach the conclusion that the persons composing

the unlawful assembly nevertheless were

five or more than

five."

(1) [1955] 2 S.C.R. 881. (2) [1962j

Supp 3 S.C.R. 848.

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MAINA SINGH V. RAJASTHAN (Shinghal, J.) 657

In taking this view this Court took note of its earlier decisions in A

Dalip Singh v. State of Punjab('), Bharwad Mena Dana v. State of

Bombay(') and Kartar Singh v. State of Punjab(

3

).

The other case to which we may make a reference is Krishna

Govind Patil v. State of Maharashtra('). It noticed and npheld the

earlier decision in Mohan Singh's case (supra) and after referring

to the portion which

we have extracted, it was held as follows,- B

"It may be that the charge discloses only named persons;

it may also be that the prosecution witnesses named only the

said accused; but there may be other evidence, such as that

given

by the court witnesses, defence witnesses or circums­

tantial pieces

of evidence, which may disclose the existence

of named

or unnamed persons, other than those charged or

deposed to. by the prosecution witnesses, and the court, on

the basis of the said evidence, may come to the conclusion

that others, named or unnamed, acted conjointly along with

one of the accused charged. But such a conclusion

is really

based on

evidence."

c

It would thus appear that even if, in a given case, the charge dis­

closes only the named persons as co-accused and the prosecution wit­

nesses confine their testimony to them, even then it would be permissi­

ble to come to. the conclusion that others named

or unnamed, besides

those mentioned in the charge or the evidence of the prosecution wit­

nesses,

arted conjointly with one of the charged accused if there was

other evidence

to lead to that conclusion, but not otherwise.

D

The decision in

Krishna Govind Patil's case (supra) was followed

by the decision in

Ram Bilas

Singh v. State of Bihar('). After notic­

ing and approving the view taken in

Plummer's case (supra) and the

decisions in

Mohan

Singh's case (supra) and Krishna Govind Patil's

case (supra) this Court stated the law once again as follows,-

"The decisions of this Court quoted above thus make it

clear that where the prosecution case as set out in the charge

and

as supported by the evidence is to the

effect that the

alleged nnlawful assembly consists of

five or more' named

persons and no others, and there is no question of any parti­

cipation by other persons not identified or identifiable it

is

not open to the court to hold that there was an nnlawful

assembly unless it comes to the definite conolusion that

five

or more of the named persons were members thereof.

Where, however, the case of the prosecution and the evidence

adduced indicates that a number in excess of

five persons

participated in the incident and some of them could not be

identified,

it would be open to the court to convict less than

five of the offence of being members of the unlawful assem­

bly or convict them of the offence committed by the unlawful

assembly with the aid of

s. 149 I.P.C. provided it comes to

(I) [1954] S.C. R. 145. (2) (1960) 2. S.C.R. 172.

(3) [1962] 2 S.C.R. 305. (4) [1964] 1 S.C.R. 678.

(5) 1964 I S.C.R. 775

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658 SUPREME COURT REPORTS (1976] 3 S.C.R.

A the conclusion that five or more persons participated in the

incident."

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The other decision to which our attention has been invited i&

Yeswant v. State of Maharashtra(!). The decision in Krishna Govind

Patil

(supra) was cited there on behalf of the appellant and, while

referring to the view expressed there, it

was observed that in the case

before the court there

was evidence that the man who used the axe

on

Sukal was a man who looked like appellant Brahmanand Tiwari,

and could be that accused himself. But as the Court

was not satis­

fied that the identify of the

person who used the axe on Sukal was

satisfactorily established as that of Brahmanand Tiwari, it took the

view that the remaining accused could be convicted with the aid of

s. 34 for the offences committed by them. This Court did not therefore

disagree with the

view taken in Krishna Govind Patil's case (supra)

but purported to follow it in its decision and took the aforesaid view

in regard to the identity of Brahmanand Tiwari for the purpose of

distinguishing it from the case of

Krishna Govind Patil (supra) where

there

was not a single observation in the judgment to indicate that

persons other than the named accused participated

in the offence and

there

was no evidence also in that regard.

The matter once again came up for consideration in

Sukh Ram

v. State of

U.P. (') The Court referred to its earlier decisions includ­

ing those

in Mohan Singh's case (supra) and Krishna Govind Patil's

case (supra) and, while distinguishing them on facts, it observed that

as the prosecution did not put forward a case of the commission of

crime by one known person and one or

two unknown persons as in

Sukh Ram's case (supra), and there was no

evidence to the effect

that the named accused bad committed the crime with one or more

other persons, the acquittal of the other

two accused raised no bar

to the conviction of the appellant under

s.

302 read with s. 34 I. P. C.

The decision in Sukh Ram's case (supra) cannot therefore be said to

lay down a contrary

view for it has upheld the view taken in the

earlier decisions of this Court.

That

Iea.ves the case of Dharam Pal v. State of

V.P. (supra) for

consideration. In that case four accused were tried with fourteen

others for rioting. The trial court gave benefit of doubt to eleven of

them and acquitted them. The remaining seven were convicted for

the offence under

s.

302/149 I.P.C. and other offences. The High

Court gave benefit of doubt to four of them, and held that at least

four of the accused participated

in the crime because of their admis­

sion and the injuries.

On appeal this Court found that the attacking

party could not conceivably have been of less than

five because that

was the number of the other party; and it was in that connection that

it held that there was no doubt about the number of the participants

being not less than

five. It was also held that as eighteen accused

participated in the crime, and the Court gave the benefit of

doubl to

be on the side of safety. as a matter of abundant caution, reducing

the number to less than

five, it may not be difficult lei reach the con­

clnsion, having regard to undeniable facts, that

t'he number of the

(1) [1973] 1 S.C.R. 291. (2) [1974] 2S.C.R. 518.

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MAINA SINGH I'. RAJASTHAN (Shinghal, J.) 659

participants could not be less than five. That was therefore a case A

which

was decided on its own facts but, even so, it was observed as

follows.-

"It may be that a definite conclusion that the number of

participants

was at least five may be very difficult to reach

where the allegation of participation

is confined to five known

persons and there

is no, doubt about the identity of even

one."

It cannot therefore be said that the decision in Dharam Pal's case

(supra)

is any different from

the earlier decisions of this Court, or

that it goes to support the view which has been taken by the High

Court in the case before us. The

view which has prevailed with this

Court all along will therefore apply to the case before us.

As has been stated, the charge in the present case related to

the

commission of the offence of unlawful assembly by the appellant along

with the other named four co-accused, and with no other person. The

trial in fact went on that basis throughout. There was also no direct

or circumstantial evidence to show that the offence was committed

by the appellant along with any other unnamed person. So when the

other four co-accused have been given the benefit of doubt and have

been acquitted, it would not be permissible to take the view that there

must have been some other person along with the appellant Maina

Singh in causing the injuries to the deceased. It was as such not per­

missible to invoke

s. 149 or s. 34 I. P. C. Maina Singh would ac­

cordingly

be responsible for the offence, if any, which could be

shown

to have been committed by him without regard to the participation of

others.

The High Court has held that there could be no room for doubt

that the

fire arm and the blunt weapon injuries which were found on

Vhe person of Amar Singh were caused by appellant Maina Singh, and

that finding has not been chaUenged before us by Mr. Harbans Singh.

Dr. Shanker Lal (P.

W. 5) who performed the post-mortem examina­

tion stated that while all those injuries were collectively sufficient in

the ordinary course of nature to cause death, he could not say whether

any of them

was individually sufficient to cause death in the ordinary

course of nature.

It is not therefore possible to hold that the death

of Amar Singh was caused

by the gun shot or the blunt weapon in­

juries which were inflicted by appellant Maina Singh. Dr. Shanker

Lal has stated that the fracture of the frontal bone of the deceased

could have been caused by external injuries Nos.

8, 10 and 12, and

that he could die of that

injury also but, of those three injuries in­

jury No. 12

was inflicted by a sharp-edged weapon and could not pos­

sibly be imputed to the appellant. The evidence on record therefore

does not

go to show that he was responsible for any such injury as

could have resulted in Amar Singh's death. The evidence however

proves that he inflicted gun shot injuries on the deceased, and Dr.

Shanker Lal has stated that one of those injuries (injury No. 26) was

grievous. ' Maina Singh was

1:herefore guilty of voluntarily causing

grievous hurt to the deceased by means of an instrument for shooting,

and was guilty of an offence under

s. 326 I. P. C. In the circum­

stances of the case,

we think it proper to sentence him to rigorous

B

c

[)

E

F

G

H

A

B

660 SUPREME COURT REPORTS [1976] 3 S.C.R.

imprisonment for 10 years for that offence. As has been stated, he

has been held gnilty of a similar offence for the injuries inflicted on

Ajeet Singh (P. W. 2) and his conviction and sentence for that other

offence nnder

s. 326 I. P. C. has not been challenged before us.

The appeal is therefore allowed to the extent that the conviction

of Maina

Singh under s. 302/34 I. P. C. is altered to one under s. 326

I. P. C. and the sentence is reduced to rigorous imprisonment for ten

years thereunder. The conviction under

s. 326 for causing injuries

to Ajeet

Singh, and the sentence of rigorous imprisonment for three

years and a

fine of Rs.

100 /-call ·for no interference and are confirm­

ed. Both the sentences will run concurrently.

P.B.R. Appeal allowed.

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