MD. MONIR ALAM v.

STATE OF BIHAR (Criminal Appeal No.133 of 2003)

NOVEMBER 19, 2009 [Harjit Singh Bedi and J.M. Panchal, JJ.]

2009 (16 )  SCR 522

The following Order of the Court was delivered by

O R D E R

1. This appeal by way of special leave arises out of the following facts:

2. At about 3 P.M. on 26th of February 1992, a demarcation of the land  

between  the  deceased  Imteyaj  Ali  and  Manjoor  Alam,  the  uncle  of  the  

appellant was being conducted by the Revenue Amin. During the course of  

the demarcation, it transpired that the house belonging to Manjoor Alam had  

fallen  in  the  portion  falling  to  the  deceased,  Imteyaz  Ali.   As  the  Amin  

proceeded to fix the pillars demarcating the land, a protest was raised by  

Manjoor,  and  he  attempted  to  interfere  in  the  proceedings.   Imteyaz  Ali,  

however,  intervened  and  requested  his  relatives  to  allow  the  Revenue  

Officials to fix the pillars.  This led to an quarrel between the parties during  

which Manjoor Ali, Kammurddin, Monir Alam and several others caught hold  

of Imteyaz and on Kammurddin’s exhortation assaulted with a lathi.  Imteyaz  

fell down to the ground whereafter Manjoor and Monir Alam again assaulted  

him and when Md.Tufel, Fatma Khatoon and Ajmeri Nisa came to intervene in  

favour  of  Imteyaz,  they  too  were  assaulted.   The parties  were,  however,  

separated by the intervention of  the Amir  and other Officials and also the  

Police Havildar who too was present to oversee the demarcation.  Imteyaz  

and the other injured persons were carried to Barauli  Hospital from where  

Imteyaz  was  referred  to  Gopalganj  and  yet  further  to  Patna  where  he  

succumbed to his injuries.  The defence of the accused was that during the  

course of the demarcation in which the police Havildar was also present, it

was the complainant party who had attacked them with lathi etc. and injuries  

were caused to them by Imteyaz, Sahnawaj and others with lathis.  A cross-

case was accordingly registered against  the other set  of  accused as well.  

The trial court, however, in the present matter, acquitted all the accused on  

the charge of murder but convicted them under Section 304(II) and 323 of the  

IPC and sentenced them to various terms of imprisonment with the appellant  

Monir Alam being awarded a sentence of three years on the premise that the  

incident was in fact a free fight between the two parties.  The matter was  

taken in appeal by Monir Alam to the High Court.  The High Court modified  

the  conviction  from one  under  Section  304(II)  and  323  simplicitor  to  one  

under Section 304(II)/149 of the IPC and 323 of the IPC and also took up the  

revision filed by the complainant against the acquittal of three of the accused,  

namely  Nisar,  Uudus  and  Kummaruddin.   The  High  Court  held  that  the  

acquittal of some of the accused was not justified but refused to interfere in  

revision on the ground that the proceedings had gone on for several years.  

The High Court therefore in effect confirmed the judgment of the trial court.  

The present  appeal  has been filed only by Md.Monir  Alam who has been  

awarded a sentence of 3 years rigorous imprisonment.

3. Mr. R.S.Suri, the learned counsel for the appellant has raised several  

arguments during the course of hearing.  He has pleaded that in the light of  

the fact that the trial court had given a positive finding that the incident was  

the outcome of a free fight and had taken place all of a sudden, it was not  

open to the High Court to have modified the conviction to one under Section  

304(II) read with Section 149 of the IPC and that too without appeal or notice  

to the accused though in the end the High Court had, in fact, confirmed the  

judgment of the trial court.  He has also submitted that the appellant, who  

had, in the meanwhile, secured a very prestigious employment,  should be  

released on probation.  He has pointed out that as both the parties were very  

closely  related  to  each  other  and  had  admitted  that  the  incident  had  

happened all of a sudden with a cross case registered against the opposite

party,  some consideration ought to be given to the appellant.  He has also  

put on record several documents to show the present state of affairs.   

4. We have considered Mr. Suri’s submissions very carefully.  We see from the  

documents that the appellant Md.Monir Alam has secured a Doctorate and is  

presently employed as a Senior Assistant Professor in the Department of Strategic  

and Regional Studies, University of Jammu and that he had secured this appointment  

in the year 1997.  His professional attainments have also been provided to us which  

shows his expertise in his specialty and also portrays his association with prestigious  

organizations worldwide in the field of strategic studies.  We are, therefore, of the  

opinion that his conduct and attainments after his involvement in this matter justifies  

his release on probation.  We, accordingly, dismiss the appeal but direct that he shall  

be released on probation under Section 4 of the Probation of Offenders Act, 1958 on  

terms to be settled by the trial court.