MD. MONIR ALAMversusSTATE OF BIHAR

                   [2009) 16 (ADDL.) S.C.R. 522


A                        MD. MONIR ALAM
                                  V.
                         STATE OF BIHAR
                 (Criminal Appeal No.133 of 2003)
                       NOVEMBER 19, 2009
B
     [HARJIT SINGH BEDI AND DR. 8.S. CHAUHAN, JJ.]

                                                                      t,
        Probation of Offenders Act, 1958:

c      s.4 - Release of offender on probation of good conduct
  - Conviction of offender by trial court along with others ulss
  304 (part-II) and 323 /PC with a sentence of three years
  observing that the incident was in fact a free fight - High Court
  modifying the conviction to one uls 304 (part-11)1149 and s.323
D /PC - Held: Offender has secured a Doctorate and                    Jo
  employment as a Senior Assistant Professor - His
  professional qualifications show his expertise in his specialty
                                                                      "
  and also portray his association with prestigious organisations
  worldwide in the field of strategic studies - His conduct and
E attainment after his involvement in the matter justify his
  release on probation - He shall be released on probation u/
  s 4 of the Act on the terms settled by trial court- Penal Code,
  1860 - ss.304 (part-11)1149 and 323.
                                                                       >
      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal                   ;

F No. 133 of 2003.

        From the Judgment & Order dated 2.5.2002 of the High
    Court of Judicature at Patna in Criminal Appeal No. 84 of
    1999(S) (J).
G       R.S. Suri, Azim H. Laskar, Abhijit Sengupta and Bikas Kar
    Gupta for the Appellant.                                      <
     . Ritesh Kumar Chauhary, Gopal Singh, Manish Kumar and
  Anuj Prakash for the Respondent.
H                            522
             MD. MONIR ALAM v. STATE OF BIHAR                         523

          The following Order of the Court was delivered                      A

                                    ORDER
          1. This appeal by way of special leave arises out of the
     following facts:
                                                                              B
             2. At about 3 P.M. on 26th of February 1992, a
    .J demarcation of the land between the deceased lmteyaj 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         C
       in the portion falling to the deceased, lmteyaz 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
       proc~edings. lmteyaz Ali, however, intervened and requested
     this relatives to allow the Revenue Officials to fix the pillars. This   D
       led to an quarrel between the parties during which Manjoor Ali,
       Kammurddin, Monir Alam and several others caught hold of
       lmteyaz and on Kammurddin's exhortation assaulted with a
       lathi. lmteyaz fell down to the ground whereafter Manjoor and
       Monir Alam again assaulted him and when Md.Tufel, Fatma                E
       Khatoon and Ajmeri Nisa came to intervene in favour of lmteyaz,
       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. lmteyaz and the other injured persons were
       carried to Barauli Hospital from where lmteyaz was referred to         F
       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 nad attacked them
       with lathi etc. and injuries were caused to them by lmteyaz,           G
  ·1 ,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
                                                                              H
    524 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.


A 304(11) 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
s Court modified the conviction from one under Section 304(11)
  and 323 simplicitor to one under Section 304(11)/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
c 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.
0
        3. Mr. RS.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
E 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(11) 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.
F 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
G 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
H
            MD. MONIR ALAM v. STATE OF BIHAR                525

   carefully. We see from the documents that the appellant has A
   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 B
   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 c
   released on probation under Section 4 of the Probation of
   Offenders Act, 1958 on terms to be settled by the trial court.
     R.P.                                    Appeal dismissed.




J.