http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: MAINA SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT17/03/1976

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR 1084            1976 SCR  (3) 651  1976 SCC  (2) 827  CITATOR INFO :  F          1976 SC2207  (51)  RF         1983 SC1090  (3)  R          1991 SC 318  (19)  F          1991 SC1075  (4,9)

ACT:      Penal Code-Murder-Co-accused  acquitted-Appellant alone convicted-s. 149 or s. 34-If applicable.

HEADNOTE:      The  appellant   and  four  others  were  charged  with offences under ss. 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 court 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  acquittal   as  also  the 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 accused when those accused who had  been named had all been acquitted and that all that was permissible  for the  High  Court  was  to  convict  the appellant of an offence which he might have committed in his individual capacity.      Allowing the appeal in part, ^      HELD: It  was not  permissible for  the High  Court  to invoke s. 149 or s. 34, I.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, named or unnamed, acted conjointly 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

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 State of U.P., A.I.R. 1975 S.C. 1917 explained and followed.      The King 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 Govind Patil v. State  of Maharashtra,  [1964] 1  S.C.R. 678;  Ram  Bilas Singh v.  State of Bihar, [1964] 1 S.C.R. 775 and Yeswant v. State of Maharashtra, [1973] 1 S.C.R. 291 referred to.      (2) The  appellant was  guilty of  voluntarily  causing grievous hurt  to the deceased by means of an instrument for shooting and  was, therefore,  guilty 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

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 242 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. Jain for Respondent.      The Judgment of the Court was delivered by      SHINGHAL, J.-This  appeal of  Maina Singh arises out of the judgment  of the  Rajasthan High  Court dated  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, Jeet 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 relations  between 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 ’lota’ 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

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 gun which broke and the broken pieces fell down. Amar Singh succumbed 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 653 for an  offence under  s. 307  read with  s. 149  I.P.C. and started investigation.  The body  of Amar Singh was sent for post-mortem examination.  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  five accused  were found  absconding and could be  taken into  custody after proceedings were started against them  under ss. 87 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 witnesses  of  the  incident.  The  accused denied the  allegation of  the prosecution  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  Smt. 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 found 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

    An appeal  was  preferred  by  the  State  against  the acquittal of  the remaining  four accused;  and Maina  Singh also filed  an appeal against his conviction. The High Court dismissed both the appeals and maintained 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 acquitted 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 654 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  committed  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 furtherance of  the common  intention of the "other accused" when those  accused had  been named  to  be  no  other  than Hardeep Singh,  Puran Singh, Jeet Singh and Narain Singh who had all  been acquitted.  It has  therefore 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 participation  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 I.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 impugned 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 causing injuries      to the  deceased. In  view of the statement of Isar Ram      and Ajeet  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 injuries 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

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 create 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 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 exclude  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 named appellant Maina 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  Maina  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 I.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. 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 repugnant in finding that  there was  a criminal  agreement  between  the appellant and  the others  and none between them and him. In taking that  view he made a reference to Harrison v. Errison where upon  an indictment  of three  for riot two were found not guilty  and one  guilty, and  upon error  brought it was held a  "void verdict". Bruce J., who was the other judge in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

the case made a reference to the following 656 statement in  Chitty’s Criminal  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 Topandas v. The State of Bombay. 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  could not  be convicted of the 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      prosecution names five or more persons and alleges that      they constituted  an unlawful  assembly. In such cases,      if both the charge and the evidence are confined to the      persons named  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      nevertheless 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 convicted      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." 657 In taking  this view  this Court  took note  of its  earlier decisions in  Dalip Singh  v. State  of Punjab, Bharwad Mena Dana v. State of Bombay and Kartar Singh v. State of Punjab.      The other  case to  which we  may make  a reference  is Krishna Govind Patil v. State of Maharashtra. It noticed and upheld the  earlier decision  in Mohan  Singh’s case (supra) and after  referring to the portion which we have extracted, it was held as follows,-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

         "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 circumstantial 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."      It would thus appear that even if, in a given case, the charge discloses  only the  named persons  as co-accused and the prosecution  witnesses confine  their testimony to them, even then  it would be permissible to come to the conclusion that others named or unnamed, besides those mentioned in the charge or  the evidence  of the prosecution witnesses, acted conjointly with  one of  the charged  accused if  there  was other  evidence   to  lead   to  that  conclusion,  but  not otherwise.      The decision in Krishna Govind Patil’s case (supra) was followed by  the decision  in Ram  Bilas Singh  v. State  of Bihar. After  noticing  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  unlawful  assembly      consists of  five or  more named persons and no others,      and there  is no question of any participation by other      persons not  identified or  identifiable it is not open      to the  court  to  hold  that  there  was  an  unlawful      assembly unless  it comes  to the  definite  conclusion      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  assembly or convict      them of  the offence committed by the unlawful assembly      with the aid of s. 149 I.P.C. provided it comes to 658      the conclusion  that five  or more persons participated      in the incident."      The other  decision to  which our  attention  has  been invited is  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 satisfied 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

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 including  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 had 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 leaves  the case  of Dharam  Pal v.  State of U.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 admission 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 doubt 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  to reach  the  conclusion,  having  regard  to undeniable facts, that the number of the 659 participants could not be less than five. That was therefore a case  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

permissible to  invoke s.  149 or s. 34 I. P. C. Maina Singh 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.      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 the  person of  Amar  Singh  were  caused  by appellant  Maina  Singh,  and  that  finding  has  not  been challenged before  us by  Mr. Harbans Singh. Dr. Shanker Lal (P. W.  5) who  performed the post-mortem examination 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 injuries 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  injury No. 12 was inflicted by a sharp-edged weapon and  could not  possibly 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. Shankar Lal has  stated that  one of  those injuries (injury No. 26) was  grievous.   Maina  Singh   was  therefore   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 circumstances of the case, we think it proper to sentence him to rigorous 660 imprisonment for  10 years  for that  offence. As  has  been stated, he has been held guilty of a similar offence for the injuries  inflicted  on  Ajeet  Singh  (P.  W.  2)  and  his conviction and  sentence for that other offence under 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 confirmed. Both the sentences will run concurrently. P.B.R.                                       Appeal allowed. 661