Maina Singh vs State of Rajasthan case deals with section 149, 302 of Indian Penal Code, 1860. That section 149 defines the offender did the criminal act in furtherance of the common intention of the other offender, whereas section 302 defines the punishment for murder. This was the case that relates to the commission of an offence by unlawful assembly with the four accused.


Criminal Appeal No. 242 of 1971


1976 SCC (2) 827


Hon’ble Justice P.N. Singhal and Hon’ble Justice R.S. Sarkaria


17th March 1976


Section 34, 149, 302, and 326 of Indian Penal Code, 1860

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  • That the appellant Maina Singh and his three sons Hardeep Singh, Jeet Singh and Puran Singh were used to live in Chak No. 77 GB in Gandhinagar District of Rajasthan.
  • It was alleged that the relations between Maina Singh and Amar Singh were strained, as Maina Singh suspected that Amar Singh was giving information about his smuggling activities.
  • That Amar Singh had done some construction work in his house and had engaged Isar Ram as a mason.
  • That on 29th June 1967 at about sunset, Amar Singh with his son Ajeet Singh and Isar Ram went to their diggi in murabba 35 for took a bath. During this, Ajeet Singh took the bath and was changing his clothes, and Amar Singh was cleaning his lota and Isar ram was nearby for them.
  • That in the meantime, Maina Singh and his three sons namely Hardeep Singh, Jeet Singh and Puran Singh, came to their diggi along with the Narain Singh.
  • That Maina Singh armed with a 12-bore gun, Puran Singh got Takua and the rest of three with gandasis with them. There Maina Singh fired a shot at Amar Singh, which was missed to hit on him but that gun shot hit on the legs of Ajeet Singh and he jumped nearby into the dry watercourse to take the cover.
  • During this, Maina Singh fired another gunshot, which was also a mis-hit. Therefore Amar Singh ran towards the crops of sugarcane by screaming for help, but the accused chased him. Hence, the Amar Singh ran towards Chak No. 78 GB and after covering about six miles distance he lodged a police report in Anoopgarh at 10 p.m.
  • That after that report all the five accused were following the Amar Singh and then Maina Singh fired another gun shot at Amar Singh, with which he fell down.
  • Therefore, other accused gets near to the Amar Singh and gave him the blows with gandasi and Maina Singh also gave two blows the butt end of the gun which broke and that broken pieces fell down.
  • Amar Singh succumbed there with the injuries and all the accused flew away from there.


  • Whether the all accused were rightly acquittal by the Trial Court?
  • Whether court rightly charged the Maina Singh for offence under section 149/302 and 326 of IPC?

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  • After observing the facts, the court was of the opinion that the injuries found on the deceased Amar Singh were with firearm, with sharp-edged weapons. These injuries are assigned to the Maina Singh and there are other persons who along with Maina Singh which cause injuries to the death of Amar Singh.
  •  That these facts would create no doubt that Maina Singh and other persons are the only responsible ones for causing the injuries to the deceased.
  • Further, the court observed that it cannot be possible to find that which accused was present there with the Maina Singh and prosecution’s version of statement cannot be proved beyond reasonable doubt for proving the guilt of the other accused. Therefore, court held that they are not liable to be punished along with the Maina Singh.
  • The Court quoted the decision in the case Ram Bilas Singh vs State of Bihar it clarifies that where the prosecution case was set out in the charge as supported by the evidence to the effect that the alleged unlawful assembly comprises five or more named persons and no others, and there is no question of any participation by the others persons or not identifiable, thus it is not open to the court to hold that there was an unlawful assembly.
  • However, if the prosecution case adduced evidence that number over five persons took part in the incident and some of them could not be identifiable then it would be open to the court to convict less than the five, offence of being the members unlawful assembly or convict them of the offence committed by an unlawful assembly with the aid of Section 149 of IPC provided it concludes that five or more persons took part in that incident.


The Sessions Court in its judgment held the appellants were held liable for an offence under Section 302 read section 34 of IPC for causing the death of Amar Singh and charged with an offence under section 326 of IPC for grievous hurt to Ajeet Singh and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and fine of Rs. 100/- for the other offence.

The accused filed before the High Court the appeal, Maina Singh, and also by the State for acquittal of the remaining accused. The High Court dismissed both the appeals and took the part of appeal before Supreme Court by maintaining the conviction and sentence of Maina Singh.

The Honorable Supreme Court observed that evidence on record does not show that Maina Singh was responsible for any such injury which caused the death of Amar Singh.

However, the gunshot was one of those injuries which were grievous therefore, Maina Singh was guilty for grievous hurt to the deceased through an instrument for shooting and held liable for section 326 of IPC. According to the circumstances of the case, it was proper to sentence him under rigorous imprisonment for 10 years for this offence.

Therefore, the appeal was allowed and Maina Singh under Section 302/34 IPC is altered to one under Section 326 IPC and sentenced to rigorous imprisonment for 10 years and 3 years for rigorous imprisonment of conviction under Section 326 for causing injury to Ajeet Singh and also a fine of Rs. 100/-. Noth the sentences will run concurrently.

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