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PETITIONER: RAM KUMAR & ANR.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       19/02/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 654 OF 1990                       J U D G M E N T Nanavati. J.      These two  appeals by  the four  convicted accused  are directed against  the judgment  and order passed by the High Court of  Punjab and  Haryana in Criminal Appeal No 80-DB of 1986.  The  High  Court  confirmed  their  conviction  under Sections 302, 307 and 324 all read with Section 34 IPC.      The prosecution  case was  that on  28.5.1985 at  about 11.00 A.M.  the four  appellants, who  are brothers, went to the field  of complainant Babu Ram and deceased Multan Singh and Khushi  Ram and  started digging a ‘khal’. Multan Singh, Babu Ram and Khushi Ram protested by saying that they should not dig  the land till proper demarcation in that behalf was done by  the competent  authority. In spite of their protest the four  appellants continued  to dig.  Again Multan  Singh protested and  at that  state appellant  Ram Kumar  attacked Babu Ram  with an  axe and caused an injury on his left arm. Raj Kumar  also gave  an axe blow to him. One blow was given by appellant Suresh Kumar to Babu Ram. Appellant Hukum Singh fired two shots from his revolver. One shot hit Multan Singh and the  other hit  Khushi Ram.  It was also the prosecution case that  on hearing  shouts raised  by Babu  Ram,  Mahavir Prasad and  Tara Chand  came there  running to the rescue of Multan Singh,  Babu Ram  and Khushi  Ram. Thereupon the four appellants ran  away from  that place.  As a  result of  the injuries caused  to him  Multan Singh  died on  7.6.1985.  A statement of  Babu Ram  was recorded  in the  hospital and a criminal case was registered on the basis of that complaint. All the  four appellants  were then charge-sheeted and tried for the offences stated above.      The prosecution had examined Baby Ram (PW-3) and Khushi Ram (PW-8)  to prove  its case.  It also  examined Hari  Ram Patwari (PW-10)  who deposed  about the  work  done  by  him regarding the khal. In their defence appellant Raj Kumar and Ram Kumar  admitted their  presence at the place of incident and claimed right of private defence. Their version was that two days  prior to the date of incident Hari Ram Patwari had completed demarcation  work of the Khai and, therefore, they

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had started digging the khal on 27th and had continued to do so on  28th also.  While they  were  digging  Multan  Singh, Khushi Ram  and Babu  Ram had  come there  and attacked them with weapons like gandasas and sticks. Ram Kumar fired shots from his  revolver and  that had  caused injuries  to Multan Singh and  Khushi Ram.  They also examined one Pale Ram as a defence witness.  Appellant Hukum  Singh  and  Suresh  Kumar denied their presence at the time and place of the incident.      The learned trial Judge disbelieved the defence version and also  disbelieved Hari  Ram Patwari  (PW-10) and relying upon the  evidence of  Babu Ram  and Khushi  Ram (PW-7  & 8) convicted the  appellants. The  High Court  agreed with  the finding recorded  by the  trial court  and  confirmed  their conviction.      The learned  counsel for  the appellants submitted that both the  courts below  have not  properly  appreciated  the evidence of  Hari Ram Patwari, who was a prosecution witness and who had produced documentary evidence in support what he had deposed.  It was  submitted that  the courts  below also committed an  error of  law in  holding   that the procedure prescribed by  Section 24  of the Haryana Canal and Drainage Act, 1974  was not followed and that indicated that Hari Ram Patwari was  not telling  the truth  when he deposed that he had   demarcated the khal on 26.5.1985 two days prior to the date of  the incident. They also submitted that his evidence was discarded  as a result of misreading the documents which have come on record and which clearly show that an order for demarcation was  already passed  by the  Naib Tehsildar  and that after  completing that  work he  had made  a compliance report also.  They also  submitted that  Babu Ram (PW-7) and Khushi Ram (PW-8) have not truly deposed about the manner in which  the  incident  had  happened  and,  therefore,  their evidence  ought  not  to  have  been  accepted  without  any independent corroboration,  particularly when  they were the accused in a cross case and had completely failed to explain the apparent  injuries on  the person  of Ram  Kumar. On the other  hand   it  was  submitted  by  the  learned  counsel, appearing for  the State  that the  High Court has correctly appreciated the  evidence of  the prosecution  witnesses and the findings  recorded by  it are based upon the evidence on record.      What Babu  Ram (PW-7) and Khushi Ram (PW-8) have stated before the  court was that on 28.5.1978 at about 11.00 A.M., when  they   were  working  in  their  field  all  the  four appellants  came   there  and   started  digging  the  khal. Therefore, they  along with  Multan Singh went near them and told them  not to  do so. As they continued digging the khal through their field, they tried to stop them by telling them not to dig the khal till demarcation was done. At  that time appellant Ram Kumar, who was having an axe, Hukum Singh, who was having  a revolver  and Raj  Kumar and  Suresh, who were having Kassi,  attacked them.  Babu Ram  was injured  by Ram Kumar, Raj Kumar and Suresh.  As Multan Singh and Khushi Ram moved forward  for rescuing  their brother,  appellant Hukum Singh fired  a shot  which hit  Mulan Singh.  Thereafter  he fired another  shot at  Khushi Ram  and injured  him on  his neck. They  have also deposed that appellants Ram Kumar, Raj Kumar and  Suresh had  caused injuried  to Khushi  Ram also. Hearing their cries Mahabir Prasad and Tara Chand came there with sticks  and attacked  the appellants  and rescued them. The learned  counsel drew  our attention  to  the  complaint filed  by  Babu  Ram  (PW-7)  which  does  not  contain  any reference to the injuries caused to appellants Raj Kumar and Ram Kumar  during the  incident. It  clearly appears  that a belated attempt  was made by PWs-7 & 8 while giving evidence

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to explain  injuries on  the persons of appellants Raj Kumar and Ram  Kumar, as neither PW-7 in his complaint nor PW-8 in his police statement had stated that injuries were caused to those appellants  also. It  is also significant to note that though Mehtab  Singh and  Tara Chand were cited as witnesses they were  not examined  and  were  dropped  as  unnecessary witnesses. The  version of  PWs-7 &  8 that the incident had happened in their field is falsified by the site map and the evidence of the Investigating officer and the panch witness. The site  plan and  the evidence  of the  said two witnesses establishes that  the fields  of PWs-7  & 8 and Multan Singh are on  the north  of the  khal and on the south of the khal are the  fields of  Chiranji Lal and Chelu Ram. It was to be dug up  further towards  west and  then towards  north.  The northern portion  of the  khal was between the two fields of Mulatan Singh  and PWs-7 & 8. The blood stains were found of Chiranji Lal  which was to the sough of the khal. It further appears that  after having  dug the  khal long  the northern boundary of  the field  of Chelu  Ram on  27th they  started digging the  khal in  between the  lands of Multan Singh and PWs-7 & 8 which portion PWs-7 & 8 were claiming as a part of their field.  It was  not necessary for the appellants to go on the  lands of Mulatan Singh and PWs-7 & 8 for the purpose of digging  the khal.  Thus the  site plan  prepared by  the Investigating Officer  and find  of blood  in the  field  of Chiranji Lal make it clear that the incident had taken place not in  the field  of the complainant as deposed by them but in the field of Chiranji Lal.      PW-7 & 8 also stand contradicted by the evidence of PW- 10, Hari  Ram, who  was the  Patwari of  that area and whose evidence has been disbelieved by both the courts below. Hari Ram Patwari  had stated that the existing khal was up to the field of  Chelu Ram  and as  shown in  the  official  record prepared after  the consolidation  proceedings were  held in that area  the khal  was to pass through the land in between the fields  of Dhani  Ram, i.e., father of Mulatan Singh and PWs-7 &  8 on  the north  and the fields of Chelu Ram on the south. From  near the  end of the boundary of Chiranji Lal’s field it  had to  take a  turn towards  the north by passing through that  portion of  land on  either side of which were the fields  of Dhani Ram and his sons. He has further stated that an  application was received by the Naib Tehsildar from Ram Kumar for demarcating the aforesaid lands earmarked as a khal and  that on 29.1.1985 the Naib Tehsildar had passed an order for  demarcation and had sent he papers to the Kanungo who had then forwarded those papers to him on 15.2.1985.      In support  of his  say he  produced  a  copy  of  that application and  the order  passed thereon,  marked as Exh.- PN/2. That  order discloses  that the khal was ‘shamlat’ and the land  earmarked for  it  was  entered  in  the  official records as  panchayat land.  He also  produced the site plan showing the  area earmarked  as khal in the revenue records. Both  these    documents  were  brought  on  record  by  the prosecution during the examination-in-chief of this witness; and, therefore, it is difficult to appreciate how the courts below could  reach the  conclusion that what the Patwari had deposed was  not true.  The High  Court misread the document Exh. -PN/2  when it  observed that  the said application did not show  that an  order was  passed  thereon  by  the  Naib Tehsildar and, therefore, the finding recorded on that basis that it  was not  open to  PW-10, Patwari,  to demarcate the land stands  vitiated. Exh.PN/2 contains the order passed by the Naib  Tehsildar on  29.1.1985 and  it  also  contains  a direction to the Patwari of Halqa (PW-10) to comply with the same. The  evidence of  Patwari was  also disbelieved on the

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ground that as no procedure under Section 24 of  the Haryana Canal and  Drainage Act, 1974 was followed the Patwari could not  have  lawfully  demarcated  the  land  and,  therefore, Patwari was  not right  when he  stated that he had done the work of  demarcation on  26.5.1985. The  evidence  discloses that there  was no  khal in  existence earlier  and only the portion over  which the  proposed khal was to be constructed was earmarked  by  fixing  stones.  The  evidence  of  PW-10 discloses that  consolidation tool  place in  the village in 1962-63 and  at that  time the  land which  was earmarked as khal was  assigned a  separate number  and the  area of that land was also mentioned in the Shajra. In support of what he had stated  he had  produced the  extract from Shajra (Exh.- DF/2) wherein  the khal  portion is  described as khasra No. 167 and  the area  of khal  as 20  killas and 14 marlas. The existing khal  was only  up to  the field of Chelu Ram. Thus the area  which was  earmarked for khal was really to be dug up as  a khal  and it  was  not  a  case  of  alteration  or destruction,  etc.,  of  the  existing  khal  which  was  to repaired.  Thus  Section  24  had  no  application  and  the evidence of PW-10 was wrongly discarded.      PW-10 has  further stated  in his evidence that he  had demarcated the  land which  was recorded  as ‘khal’  and had prepared a  report (EXH.DF)  in that  behalf on  the back of that application. He  had also made a noting to that fact in the Rojnamcha  Waqiati. An  extract from  it was produced by him and  it was  marked as  Exh.  -Df/1.  In  view  of  this documentary evidence  it  was  not  proper  to  discard  his evidence on  the ground  that he was not a Patwari connected with the  Canal Department  and therefore it was doubtful if he had really demarcated the land. It was nobody’s case that only Patwari  of the  Canal Department  could have  done the work of demarcation. He was the Patwari of village Halqa and he was  directed by  the Naib  Tehsildar to  comply with his order for  demarcation. His evidence was also doubted on the ground that while doing the demarcation work he had not kept Dhani Ram  and his  sons or  the  Sarpanch  of  the  village present. As  deposed by  him he  had taken signatures of all those who  were present  on the  spot. The  report discloses that at  that time  one Balak  Ram, who  was a member of the Panchayat, was  present. Ram Kishan, Jeet Singh, Fateh Singh and Pale  Ram were  also present. All of them had signed the said report.  No rules or directions required the demarction work to  be done  in presence  of the concerned Sarpanch and owners of  the lands  touching the  ‘khal’. This part of his evidence has been overlooked by the High Court.      The evidence  of PW-10 proves beyond doubt that certain lands were  earmarked  as  ‘khal’  since  1962-63  when  the consolidation proceedings  were completed.  The lands  which were to  be converted  into khal  were declared as panchayat land and a separate khasra No. 167 was given to them. Proper entries were made in that behalf in the revenue records. The report made by him on 26.5.1985 contains a statement that on that day  "first of  all, the  killa lines  of these killas, were fixed  by taking measurements from stones ‘Servari’ and thereafter the  demarcation of two karams wide khal was done from the  east of  killa  No.  30/13/113/12-14-15  and  Kham Burjis were  got fixed".  The site plan also shows existence of boundary  stones. Though  PWs-7 & 8 were not present when the demarcation  was done  and for that reason even if it is assumed that they did not know that any demarcation was done on 26th,  it is  not possible  to believe  that they had not noticed the  boundary stone  which were  on the  lands since before 26-5-1985.  What was  don on  26th was  to  draw  the parallel lines  two Karmas  wide in  between those  boundary

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stones.      PWs-7 &  8 protested  against digging of the ‘khal’ and the incident  took place  at that  time. The  appellants had obtained an  order for  demarcation and the Patwari had done the demarcation.  The High  Court failed  to appreciate that the appellants  had no reason to take the law in their hands and attack Multan Singh and PWs-7 & 8. Multan Singh and PWs- 7 &  8 did not like the appellants digging the ‘khal’ on the portion of  land in  between their fields and, therefore, it was more  likely that  they had  started  the  assault.  The defence version  thus appears  to be  more probable than the version of PWs-7 & 8.      According to  PWs-7 & 8 they had not caused injuries to Ram Kumar  and Raj  Kumar and  that they  were inflicted  by Mehtab Singh and Tara Chand after Multan Singh and PWs-7 & 8 were injured. It is not believable that either of them would have dared  to go near the appellants after knowing that one of them  had a  revolver and  he  had  already  injured  two persons by firing the same. Mehtab Singh and Tara Chand were not examined as witnesses. It appears that Ram Kumar and Raj Kumar were  injured before the two shots were fired and very probably in self defence.      As we  find that  PWs-7 &  8  have  not  described  the incident truly  by suppressing  the part  played by  them in assaulting Raj  Kumar and  Ram Kumar,  and as they have also changed the place of incident in order to make out a case of aggression by  the appellants  they cannot  be  regarded  as reliable witnesses  and their  evidence cannot  be  accepted without independent  corroboration. Mehtab  Singh  and  Tara Chand,  who   were  independent  witness,  were  dropped  as unnecessary witnesses. On re-appreciation of the evidence we hold that  the prosecution  had failed  to establish  beyond reasonable doubt  that the  appellants were  guilty  of  the offences for which they were tried.      We, therefore,  allow  these  appeals,  set  aside  the conviction of  the appellants  and acquit  them of  all  the charges  levelled   against  them.   Their  bail  bonds  are cancelled.