JUDGMENT

NATARAJAN, J. :— This appeal by special leave is directed against the judgment of the High Court of Patna in Criminal Appeal No. 407 of 1976 preferred by the State against the acquittal of A-1 to A-15 by the 1st Additional Sessions Judge, Muzaffarpur of charges under S. 302 read with S. 149/302 read with S. 34, I.P.C. for having committed the murder of one Kumar Gopal Singh at about 9.30 p.m. on 24-2-1969 at village Bishunpur Kamdeo, District Muzaffarpur. A16 Dinesh Singh was directly charged under S. 302. I.P.C. in addition to being charged under S. 302, I.P.C. read with Ss. 149 and 34, I.P.C. The 1st Additional Sessions Judge, Muzaffarpur convicted A-16 Dinesh Singh under S. 302, I.P.C. but acquitted A-1 to A 15 of the charges under S. 302 read with Ss. 149 and 34 I.P.C. During the pendency of the appeal against acquittal, A-2 and A-6 died and hence the appeal abated as against them. The High Court confirmed the acquittal of A-1 and A-9 as their names were not mentioned in the fardbeyan and convicted the rest of the accused viz. A-3 to A-5, A-7, A 8 and A-10 to A-15. The appeal preferred by A-16 Dinesh Singh was dismissed by the High Court and he has not preferred any appeal to this Court. The accused who have been convicted by the High Court have preferred this appeal. Appellant Shital Singh is reported to have died during the pendency of the appeal and hence the appeal has become infructuous as far as he is concerned.

2. The prosecution case was that on the morning of the 24-2-1969, deceased Kumar Gopal Singh found A-2, A-16 and a female relation of them plucking khesari crops from his field and so he abused them and snatched away the plucked plants and their baskets and in retaliation for it the 16 accused persons had lay in wait for him on that night and attacked him at about 9.30 p.m. when he was returning home with his brother P.W. 22 and two other witnesses P.Ws. 1 and 18 after attending a barat. In the fardbeyan given by P.W. 22 it was stated that 16 persons surrounded Kumar Gopal Singh and then Dinesh Singh inflicted a stab injury on the neck of Kumar Gopal Singh as a result of which he died a short while later. On hearing the alarm raised by P. Ws. 1, 18 and 22, some villagers came running and on seeing them the accused ran away from the scene. Kumar Gopal Singh told the villagers who came there that he had been stabbed by Dinesh Singh. P.W. 22 went to the police station and lodged the First Information Report. After completion of investigation, chargesheet was laid against A-1 to A- 16.

3. The 1st Additional Sessions Judge accepted the prosecution evidence but came to the conclusion that accused Dinesh Singh alone deserved conviction under S. 302, I.P.C. and that the other accused cannot be held constructively liable for the offence committed by Dinesh Singh and convicted under S. 302 read with S. 149 or S. 34, I.P.C. because none of them had indulged in any overt act to cause the death of Kumar Gopal Singh.

4. The High Court, however, has taken the view that even though the appellants herein had not committed any overt act, they would be constructively liable under Ss. 149 and 34, I.P.C. for the offence of murder committed by Dinesh Singh and accordingly convicted them and sentenced them for imprisonment for life.

5. Mr. S. K. Mehta, learned counsel for the appellants contended that there is no evidence in the case to conclude that all the 16 persons had either formed a common intention or had formed themselves into an unlawful assembly with the common object of murdering Kumar Gopal Singh and it was in furtherance of their common intention or in prosecution of the common object of the unlawful assembly that Kumar Gopal Singh had been stabbed by Dinesh Singh. The learned counsel pointed out that in the fardbeyan it was only stated that the informant and Kumar Gopal Singh were surrounded by the accused persons and then suddenly Dinesh Singh stabbed Kumar Gopal Singh on the neck, but in the evidence the witnes