Kumar & Anr Vs. State of Haryana  INSC 115 (19 February 1998)
Nanavati, V.N. Khare Nanavati. J.
appeal no. 654 of 1990
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.
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.
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
the four appellants were then charge-sheeted and tried for the offences stated
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 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.
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.
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.
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
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.
their cries Mahabir Prasad and Tara Chand came there with sticks and attacked
the appellants and rescued them.
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 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.
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.
& 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.
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
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 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
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.
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 done on 26th was to draw the parallel lines
two Karmas wide in between those boundary stones.
& 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.
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.
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.
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