Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) NO.228 OF 1990 ======================================================== 1.ABDUL RAHIM. 2.NAIM MIAN. BOTH SONS OF YAQUB. 3.BASRAT HUSSAIN. 4.ASGAR ALIAS ASGHAR ALI BOTH SONS OF HABIB. 5.NIYAMAT ALI. 6.MD SABIR BOTH SONS OF ABDUL KARIM 7.MOGHAL MIAN, S/O SULEMAN ALL RESIDENTS OF MOHALLA TAKIA, P.S DUMRAON, DISTRICT BHOJPUR. .... .... APPELLANT/S VERSUS THE STATE OF BIHAR. .... .... RESPONDENT/S WITH CRIMINAL APPEAL (DB) NO. 273 OF 1990 ======================================================== MD. KHURSHEED ALAM, @ MD. KHURSHEED, S/O LATE ABBAS ALI, R/O MOHALLA TAKIYA, P.S DUMRAON, DISTRICT BHOJPUR. .... .... APPELLANT/S VERSUS THE STATE OF BIHAR. .... .... RESPONDENT/S WITH CRIMINAL APPEAL (DB) NO. 257 OF 1990 ======================================================== HAIDAR ALI @ HAIDER ALI, S/O ABDUL KARIM MIAN, R/O MOHALLA TAKIA, P.S DUMRAON, DISTRICT BHOJPUR. .... .... APPELLANT/S VERSUS THE STATE OF BIHAR. .... .... RESPONDENT/S ======================================================= Appearance: For the Appellants : Ms. Sushmita Mishra For the State : Mr. Ajay Mishra (A.P.P.) Mr. D.K. Sinha (A.P.P.) ======================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Date: 17-12-2012 Both these three appeals arise out of common Patna High Court CR. APP (DB) No.228 of 1990 dt.17-12-2012 2 judgment dated 24.05.1990 passed by 6th Additional Sessions Judge Bhojpur at Arrah in Sessions Trial No. 334 of 1987, whereby and whereunder, while appellant Md. Khursheed Alam (Criminal Appeal No. 273 of 1990) has been convicted for the offence punishable under Section-302 of the Indian Penal Code (I.P.C.) and has been sentenced to undergo rigorous imprisonment for life the two other surviving appellants in Criminal Appeal No. 228 of 1990 namely, Basarat Hussain and Asghar Ali have been convicted [STATUTE] life. At this stage, it would be also significant to note here that in third appeal being Criminal Miscellaneous No. 257 of 1990, sole appellant Md. Haidar Ali @ Haider Ali had died and his appeal has abated as recorded by us in our earlier order dated 01.11.2012. Similarly, appeal of appellants in Criminal Miscellaneous No. 228 of 1990 namely Abdul Rahim (appellant no. 1), Naim Mian (appellant no. 2), Niyamat Ali (appellant no. 5), Md. Sabir(appellant no. 6), and Moghal Mian (appellant no. 7) has also been abated on account of their death as has been recorded in our order dated 01.11.2012 and 14.12.2012. Thus in nutshell appeals survives Patna High Court CR. APP (DB) No.228 of 1990 dt.17-12-2012 3 only on behalf of three appellants namely, Md. Khursheed Alam, Basarat Hussain and Asgar Ali. Prosecution case is based on the fardbeyan of Md. Allaudin (PW-7) who at 10 pm in Dumraon Hospital on 06.08.1978 had stated before the police officer that on same day at about 8:30 pm while he along with 15 persons and his Imam was offering Namaz in Mosque situated at Naya Talab Takiya Mohalla, Jama Masjid, a mob of 20 named persons including the appellants had arrived over there and had stopped them from offering prayer (Namaz). It is further alleged that the people of the aforementioned mob had started grappling and in the mean time weapon such as lathi and bhala were also brought from the house of Sabir Ali whereafter they had started indiscriminately assaulting informant and his men who were trying to save themselves. It is specific allegation of informant in the ferdbayan that co-accused Haider Ali (since dead) had assaulted him by Chhura on his forehead while co-accused Niyamat (since dead) and Sabir (since dead) had assaulted him with Lathi. He has further alleged that Ismail was also given two Chhura blows on his chest by co-accused Haider Ali. In likewise manner it has also been alleged that Sulaiman was also assaulted by Haider Ali by Patna High Court CR. APP (DB) No.228 of 1990 dt.17-12-2012 4 Chhura. Informant(PW-7) had in his ferdbayan claims that he had fallen down on account of injuries sustained by him. According to informant after giving fatal blow on Suleman Mian, the mob started also assaulting him by lathi as a result whereof Suleman Mian died at the spot and when the (informant) had ran away he was chased and thereafter was assaulted by the mob as a result whereof he jumped over the wall of the Mosque. According to informant when the occurrence had taken place another mob of 15 to 20 persons were standing outside the Mosque and even a police A.S.I and Constables were also present on duty in front of Mosque. The Informant in his ferdbayan had stated that he along with Ismail in an injured condition with dead body of deceased Suleman Mian were brought to hospital. According to him, there was an old rivalary and litigation between the two sects of Muslims, i.e. Hanifee and Ahley Hadith and in connection of which proceeding under Section-107 and 144 of Cr.P.C had also been undergoing basically on account of disputes relating to offering of prayer in Mosque. The Informant in his ferdbayan had named Shamim Akhtar(PW-4), Khursheed Anwar(PW-3), Md. Yusuf Khan (not examined), Abdul Rahim(PW-2), Sohail Patna High Court CR. APP (DB) No.228 of 1990 dt.17-12-2012 5 Javed (PW-1) and Md. Ishaque(PW-8) as his witnesses. The said fardbeyan of Md. Allaudin (PW-7) gave rise to Jama Masjid Dumraon P.S. Case No. 5(8) 78 in which police after investigation had submitted chargesheet against 25 persons including these three appellants whereafter charges were framed against 22 persons and trial was held in respect of 20 of them in which 11 of them were acquitted while rest of 9 were convicted and sentenced. During the pendency of these three appeals, six of the convicted appellants as noted above had died and therefore, appeals against them have abated. In such a

Applicable IPC Section: 149

Statute Text:
Section 149 of the Indian Penal Code. If an offence be committed by any member of an unlawful assembly, every other member of such assembly shall be guilty of the offence. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.