Judgment 1. In the night of 18th November, 1981 there was an incident of stabbing in between villages Hussainabad and Moulachak P. S. Mojahidpur in the district of Bhagal-pur near the slaughter house in which occurrence one Zamil Ahmad, father of the informant Md. Shakil Ahmad P. W. 3 was stabbed to death and Md. Shakil Ahmad was also given stab injuries. Md. Zamil Ahmad died in the hospital. The assailant was one Md. Saukat, who long with two other accused named in the F.I.R. are absconding since the date of occurrence. These three appellants were charged and tried under Section 302 read with Section 149 and Section 307 read with Section 149 of the Indian Penal Code for the murder of Zamil Ahmad and murderous assault on the informant Shakil Ahmad. By judgment pronounced on 15.3.1986 the 3rd Additional Sessions Judge, Bhagalpur, who tried these appellants, found them guilty of the charges and sentenced them imprisonment for life under Section 302 read with Section 149, I.P.C. The appellants were further sentenced seven years imprisonment under Section 307 read with Section 149 I.P.C. The trial court also imposed fine under both counts. 2. The case of the prosecution was that Md. Zamil Ahmad murdered in furtherance of the common object of all the accused persons. The appellants were members of the unlawful assembly and in prosecution of the common object Md. Zamil Ahmad was murdered and an attempt was made on the life of Md. Shakil Ahmad. 3. According to the case of the prosecution, at about 11.00 p.m. in the night of the occurrence Md. Shakil Ahmad P.W. 3 was returning home after selling hides along with his father the deceased and when they reached near the slaughter house which is in between the villages Hussainabad and Maulachak, Shakil Ahmad saw thes appellants and absconding accused Saukat, Nayeem and Bhago, sons of Basul Appellant Saiem is also son of Basul and other of absconding accused named above. All the accused persons were sitting near the slaughter house. Seeing the informant and his father approaching, they stood up and came near the informant. Among them, the absconding accused Md. Saukat started searching pocket of the informant to which the informant objected. All the accused persons were sitting near the slaughter house. Seeing the informant and his father approaching, they stood up and came near the informant. Among them, the absconding accused Md. Saukat started searching pocket of the informant to which the informant objected. Thereupon, Saukat started hurling abuses and assaulting the informant with fist end slap and thereafter this very accused stabbed him on the lower part of the back on the left side and his left shoulder causing substantial injuries on his person. When the deceased Zamil Ahmad intervened, Md. Saukat and other accused persons are alleged to have caught hold the hands of Md. Zamil and Saukat also stabbed him on his chest and on his right thigh, Zamil Ahmad was brutally wounded and he was shifted to hospital where he succumbed to his injuries. 4. It would be noticed that these appellants were carrying no arm with them. They are said to have caught Zamil Ahmad. There is evidence that the assailant Saukat was hiding a knife in his pocket, with which he stabbed the deceased and the informant. 5. The conviction of the appellants is founded on the evidence of the informant and three other witnesses, who have supported the allegation in the First Information Report, by and large. In the F.I.R. it is also mentioned that the accused persons also surrounded the informant and the deceased before the assault took place. 6. Mr. P. N. Pandey, learned senior counsel for the appellants submitted that the evidence regarding catching is not consistent and is not worthy of reliance. It was secondly contended that even if other part of the offence is accepted, still the conviction of the appellants with the aid of Section 149 I.P.C. is not sustainable since there is total absence of evidence, that the crime in question was committed in furtherance of the common object of the accused persons. It is submitted that all the accused persons are residents of same mohalla and not clear motive has been disclosed by the prosecution in this case. Learned Counsel has relied on the evidence of Md. Halim P.W. 1, an eyewitness, who only stated that an altercation was going on between Shakil and Saukat and that other appellants were also present there. Even the informant does not say about the catching of hand by the appellants. He says that accused persons surrounded Shakil and Zamil. Learned Counsel has relied on the evidence of Md. Halim P.W. 1, an eyewitness, who only stated that an altercation was going on between Shakil and Saukat and that other appellants were also present there. Even the informant does not say about the catching of hand by the appellants. He says that accused persons surrounded Shakil and Zamil. Learned counsel has placed strong reliance on Rambilas Singh v. State of Bihar, AIR 1989 SC 1593 , the evidence in which case was identical to the evidence in the present case. The evidence in that case was that sixteen persons had surrounded Kumar Gopal Singh and one of them inflicted a stab injury on the neck of the said Kumar Gopal Singh as a result of which he died a short while later. The trial court had convicted only Dinesh Singh, who had caused stab injury on the deceased and the remaining accused who were charged under Section 302/ 149, I.P.C. were acquitted since in the opinion of the trial court those accused persons were not constructively liable for the offence committed by Dinesh Singh. 7. The state came in appeal before this Court against acquittal. This Court reversed the acquittal and convicted fifteen persons, who were acquitted by the trial court. The Supreme Court upset the verdict of this Court on the ground that the view taken by the high Court for convicting the appellants was not sustainable. The Supreme Court observed that even accepting the prosecution case in full and holding that the appellants were present at the scene at the time of occurrence, the materials on record would not warrant a finding that the individual act of Dinesh Singh had been perpetrated in furtherance of the common intention of all the accused assembled there or in prosecution of a common object formed by all of them. The Supreme Court further observed: "It is true that in the morning, there was an incident in which Kumar Gopal Singh had abused A-2, A-16 and one of their women folk for plucking Khesari Crops from his land and had snatched away the plucked plants as well as their baskets but it is highly improbable that by way of retaliation for that incident, the accused would have all joined together and planned to commit the murder of Kumar Gopal Singh and for that purpose as many as sixteen persons had come together to commit the murder.... A significant factor to be borne in mind is that there is no evidence to show that the appellants had known that Dinesh Singh was carrying a knife when as they surrounded him. If they had no knowledge that Dinesh Singh was carrying a knife, they could not even have remotely thought that he would be inflicting a stab injury on the deceased. If it was the intention of all the appellants that Kumar Gopal Singh should be done to death it is inconceivable that they would have come without any weapons except for the knife brought by Dinesh Singh and that they would not have launched an attack on Kumar Gopal Singh (and) would have rested content with the single stab, inflicted by Dinesh Singh." 8. In the present case there is evidence that there was altercation between the appellants and the deceased. Saukat also abused the informant. Till then, no overt act is attributed against these appellants. The evidence is that these appellants caught hold the hands of the deceased and tried to intervene to prevent the crime. The evidence of Md. Halim P.W. 1 and the informant P.W. 3 in this regard is not consistent as noticed above. The evidence in this case is totally deficient to hold the appellants constructively liable for the act of stabbing. The decision of the Supreme Court in Rambilas Singhs case (supra) applies with greater force in the present case. 9. Having regard to the nature and character of the offence, we hold that the conviction of the appellants under Sections 302/149 and 307/149 of the Indian Penal Code cannot be upheld and must be set aside. 10. The decision of the Supreme Court in Rambilas Singhs case (supra) applies with greater force in the present case. 9. Having regard to the nature and character of the offence, we hold that the conviction of the appellants under Sections 302/149 and 307/149 of the Indian Penal Code cannot be upheld and must be set aside. 10. For the reasons stated above, this appeal is allowed and the conviction of the appellants in Sessions Trial No. 210 of 1982 by judgment and order dated 15.3.1986 of 3rd Additional Sessions Judge, Bhagalpur is set aside all the three appellants are acquitted by giving them benefit of doubt. The appellants are on bail. They are discharged from the liability of their bail bonds.