Holding

The prosecution failed to establish the accused’s guilt beyond reasonable doubt; the evidence of PW‑7 and PW‑8 was unreliable, PW‑10’s evidence was wrongly discarded, and the accused acted in private defence, leading to their acquittal.

Summary

The accused brothers were charged under IPC sections 302, 307, 324 read with Section 34 for allegedly attacking complainants while digging a khal. The trial and High Courts relied on the testimony of PW‑7 and PW‑8 and rejected the patwari’s (PW‑10) evidence, convicting the accused. On appeal, the Supreme Court held that the prosecution had not proved the guilt of the accused beyond reasonable doubt because PW‑7 and PW‑8 were unreliable and their statements were not independently corroborated, while PW‑10’s documentary evidence of lawful demarcation had been wrongly discarded. The Court also found that the accused likely acted in private defence, as they were injured before the shots were fired. Consequently, the convictions were set aside and the accused were acquitted.

Issues considered

The prosecution must prove beyond reasonable doubt the guilt of the accused under IPC sections 302, 307, 324 and Section 34.
Whether the testimony of PW‑7 and PW‑8 is reliable and can be accepted without independent corroboration.
Whether the patwari’s (PW‑10) evidence regarding demarcation of the khal is admissible and whether Section 24 of the Haryana Canal and Drainage Act, 1974 applies.
Whether the accused acted in private defence (self‑defence) during the incident.
Whether the site plan and documentary evidence establish the true location of the incident.

Legislation cited

Indian Penal Code, 1860s. 302, s. 307, s. 324, s. 34

Subjects

IPCSection 302Section 307Section 324Section 34private defenceself-defencewitness credibilityevidence reliabilitydemarcationHaryana Canal and Drainage Actacquittal

Judgment

RAM KUMAR AND ANR. ETC. A
v.
STATE OF HARYANA

FEBRUARY 19, 1998

[G.T. NANAVATI AND V.N. KHARE, JJ.]
B

''
Indian Penal Code, 186~s 302, 307 and 324 read with Section 34-
Murder-Digging of khal by accused brothers-Protest by deceased and
PWs-Fire shots causing death-Conviction and sentence by Trial Court
placing reliance on evidence of PW7 and PW8-Ev1dence of PW 10 c
discarded-Confirmation by High Court-On appeal, Held, prosecution failed
to establish beyond reasonable doubt the guilt of the accused-PWs not
reliable witnesses and cannot be accepted without independent
corroboration-Evidence of PW 10 wrongly discarded-Accused fired shots
probably in self defence after being injured-Conviction and sentence set D
aside.

• The appellants were prosecuted for an offence under Section 302, 307
and 324 read with Section 34 IPC.

The prosecution case was that the appellants namely R, RK, H & S who E
were brothers went into the field of complainants 'B', PW 7 and 8 and
deceased 'M' and started digging a 'Khal'. The complainants protested the
digging and a quarrel broke out. Appellant 'R' attacked 'B' with an axe and
injured his left arm. Appellant 'H' fired two shots hitting 'M' and PW 8. 'B'
raised alarm and 'MP' and 'T' came running to their re.:icue. Thereupon the
F
appellants ran away. 'M' succumbed to his injuries and on the basis of
statement of 'B' criminal case was registered and chargesheets were filed
against the appellants.

The prosecution examined PW 7, PW 8 and also PW 10, the patwari
who deposed about the work done by him regarding the khal. Appellants R G
and RK in their defence admitted their presence at the place of incident and
claimed right to private defence. The trial Court relying on the evidence of
~ PW 7 and PW 8 and disbelieving the defence version, convicted the appellants
which was confirmed by High Court. Appellants aggrieved by their conviction,
preferred the present appeals. H
1017
1018 SUPREME COURT REPORTS [1998] l S.C.R.

A The contention of appellants was that (i) the Courts below have not
properly appreciated the evidence of PW 10 and discarded his evidence by
misreading the documents on record which clearly showed that an order for
demarcation was passed by Naib Tehsildar, (ii) PW 7 and PW 8 have not
truely deposed about the manner in which the incident had happened and,
B therefore, their evidence ought not to )lave been accepted without inde1iendent
corroboration.

Allowing the a1ipeals, this Court

HELD : 1.1. The prosecution has failed to establish beyond reasonable
C doubt that the ap1iellants were guilty of the offences for which they were
tried. Thus, the appellants were acquitted of all the changes levelled against
them. [1026-C)

1.2. PWs 7 & 8 protested against digging of the 'khal' and the
incident took place at that time. The appellants had obtained an order for
D 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 deceased 'M' and PWs 7 & 8. 'M' 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.
According to PWs 7 and 8 they had not caused injuries to 'R' and 'RK' and
E _that they were inflicted by 'MP' and 'T' after either of them would have dared
to go near the appellants after deceased and they were injured. It is not
believable that knowing that one of them had a revolver and he had already
injured two persons by firing· the same. Neither PW 7 in his complaint nor
PW 8 in his police ~1atement had mentioned about the in.iuries caused to the
appellants 'R' & 'RK' during the incident. It appears that appellant 'R' and
F 'RK' were injured before the two shots were fired and very probably in self
defence. The defence version thus appears to be more probable than the
version of PWs 7 and 8. [1025-E-H]
1.3. P.Ws 7 & 8 have not described the incident truly by suppressing
the part played by them in assaulting 'R' and 'RK', and as they have also
G changed the place the incident in order to make out a case of aggression by
the appellants they cannot he regarded as reliable witn~es and their evidence
cannot be accepted without independent corroboration. 'MP' and 'T', who
were independent witnesses, were dropped as unnecessary witnesses.
[1026-B]
H 1.4. The version of PWs 7 & 8 and that the incident had happened in
RAM KUMAR v. STA TE OF HAR YANA !019
their filed is falsified by the site map and the evidence of the Investigating A
officer and the Pench witness. The site plan and the evidence of the said two
witnesses establishes that the fields of PWs 7 and 8 and deceased 'M' are
on the north of the khal and on the south of the khal are the fields of 'C'
and 'CR'. The khal was already in existence near the filed of 'CR'. It was
to be dug up further towards west and then towards north. The northern B
portion of the khal was between the two fields of deceased 'M' and PWs 7
& 8. The blood stainswere found not in the field of PWs 7 & 8 but in the
-,,; field of 'C' which was to the south of the khal. It further appears that after
having dug the khal along the northern boundary of the field of' CR' they
started digging the khal in between the lands of deceased 'M' and PWs 7
& 8 which portion PWs 7 and 8 were claiming as a part of their filed. It was C
not necessary for the appellants to go on the lands of deceased 'M' 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 'C' make it clear
that the incident had taken place not in the field of the complainant as
deposed by them but in field of 'C'. [1022-H; 1023-A-C[
D
2.1. Both the High Court and Trial Court erred in disbelieving the
t evidence of PW 10. The evidence of PW IO proves beyond doubt that certain
lands were earmarked as 'khal' and he had demarcated the land. In support
the application of appellant 'R' and order passed by Naib Tehsildar for
demarcation marked as Exh. PN/2 were produced. He has also produced the E
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 PW I 0, and therefore it is difficult to appreciate how
the courts below could reach the conclusion that what PW 10 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 F
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 lands stands
vitiated. [1023-D-H; 1024-A[

2.2. The evidence of PW I 0 was also disbelieved on the ground that G
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. 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 IO H
1020 SUPREME COURT REPORTS [ 1998] l S.C.R.

A discloses that consolidation took place in that village in 1962-63 and at that
time the land which was earmarked as khal was assigned a separate number
and the area that land was also mentioned in the Shajra. In support of that '-
he of 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
B as 20 killas and 14 marlas. The existing khal was only up to be filed of'CR'.
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 be repaired. Thus Section 24 had no application and the
evidence of PW 10 was wrongly discarded. [1024-B-El

C CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
58 of 1988 Etc.

From the Judgment and Order dated 22.7.87 of the Punjab & Haryana
High Court in CrL A. No. 80-DD of 1986.

D R.K. Jain, Sushi! Kumar, Ajay Bhalla, Ms. Ranjana Narayan and K.K.
Gupta for the Appellants.

Prem Malhotra and Ajay Siwatch for the Respondent.

The Judgment of the Court was delivered by
E
NANA VATI., 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 i 986. The High Court confirmed
their conviction under Sections 302, 307 and 324 all read with Section 34 IPC.

F 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
G 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
H prosecution case that on hearing shouts raised by Babu Ram, Mahavir Prasad
RAM KUMAR v. STATE OF HARYANA [NANAVATI, J.) 1021
and Tara Chand came there running to the rescue of Multan Singh, Babu Ram A
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 tl1e offences stated above.
B
T11e prosecution had examined Babu Ram (PW-3) and Khushi Ram (PW-
8) to prove its case. It also examined Harl Ram Patwarl (PW-10) who deposed
about tl1e work done by him regarding tl1e khal. In their defence anpellant Raj
Kumar and Ram Kumar admitted their presence at the place of incident and
claimed right of private defence. TI1eir version was tliat two days prior to the C
date of incident Harl Ram Patwari had completed demarcation work of the
Khal and, therefore, tl1ey had started digging the khal on 27th and had
continued to do so on 28tl1 also. While tl1ey were digging Multan Singh,
Khushi Ram and Babu Ram had come tl1ere and attacked them witl1 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 D
one Pale Ram as a defence witness. Appellant Hukum Singh and Suresh
Kumar denied their presence at the time and place of tl1e incident

The learned trial Judge disbelieved the defence version and also
disbelieved Harl Ram Patwarl (PW- I 0) and relying upon the evidence of Babu E
Ram and Khushi Ram (PWs-7 & 8) convicted the appellants. The High Court
agreed with the finding recorded by the trial court and confirmed their
conviction.

TI1e learned counsel for the appellants submitted that both the courts
below have not properly appreciated the evidence of Harl Ram Patwarl, who F
was a prosecution witness and who had produced documentary evidence in
.,
support what he had deposed. It was submitted tl1at 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, 197 4 was not followed and that
indicated that Harl Ram Patwarl was not telling the truth when he deposed G
that he had demarcated the khal on 26.5.1985 two days prior to tl1e 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. H
1022 SUPREME COURT REPORTS [1998] l S.C.R.

A 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
B
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 t11e
c court was that on 28.5.1978 at about 11.00 AM., when they were working in
their field all the four appellants came there and started digging the khal.
Therefore, they along wit11 Multan Singh went near t11em and told t11em not
to do so. As they continued digging the khal tlrrough their field, t11ey tried
to stop them by telling them not to dig t11e khal till demarcation was done.
D At that time appellant Rani Kumar, who was having an axe, Hukum Singh, who
\~as 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. 1
As Multan Singh and Khushi Ram moved fonvard for rescuing t11eir brother,
appellant Hukum Singh fired a shot which hit Mulan Singh. Thereafter he fired
another shot at Klmshi Ram and injured him on his neck. They have also
E deposed that appellants Ram Kumar, Raj Kumar and Suresh had caused
injuries to Khushi Ram also. Hearing t11eir cries Mahabir Prasad and Tara
Chand came there with sticks and attacked t11e appellants and rescued t11em.
The learned counsel drew our attention to the complaint filed by Babu Ram
(PW-7) which does not contain any reference to the i11juries caused to
F appellants Raj Kumar and Ram Kumar during t11e incident. It clearly appears
t11at 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
neit11er PW-7 in his complaint nor PW-8 in his police statement had stated
t11at injuries were caused to t11ose appellants also. It is also significant to note
G tliat t11ough Mehtab Singh and Tara Chand were cited as witnesses they were
not examined and were dropped as unnecessary witnesses. The version of
PW s-7 & 8 t11at t11e incident had happened in t11eir field is falsified by t11e 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
-
I

H fields of PWs-7 & 8 and Multan Singh are on the north of the khal and on
RAM KUMAR v. ST ATE OF HAR YANA [NANA VA TI, J .) 1023

the south of the khal are the fields of Chiranji Lal and Chelu Ram. The Kha! A
was already in existence near the field of 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 Multan Singh and PWs-7 & 8. The blood stains
were found not in the field of PWs- 7 & 8 hut in the field of Chiranji Lal which
was to the south of the khal. It further appears that after having dug the khal
B
along 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 Multan 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
c
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-I 0, Hari Ram,
who was the patwari of that area and whose evidence has been disbelieved D
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
Multan Singh and PWs-7 & 8 on the north and the fields of Chelu Ram on
E
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 wliich 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 the F
paper.s to the Kanungo who had then forwarded those papers to hi.m 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 G
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 H
1024 SUPREME COURT REPORTS [1998] l S.C.R.

A 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 1

contains the order passed by the Naib Tehsildar on 29.1.1985 and it also
contains a direction to the Patwari of Halqa (PW- I 0) to comply with the same.
B 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 !and 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
C earlier and only the portion over which the proposed khal was to be constructed
was earmarked by fixing stones. The evidence of PW- I 0 discloses that
conso !idation took place in that 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
D portion is described as khasra No. 167 and the area of khal as :o 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
E was wrongly discarded.

PW-I 0 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
F
marked as Exh. -DF/I. In view of this documentary evidence it was not pwper
to di;card 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
G 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
H that at that time one Balak Ram, who was a member of the Panchayat, was
RAMKUMARv. STATEOFHARYANA [NANA VA TI ,J.] 1025
' present. Ram Kishan, Jeet Singh, Fateh Singh and Pale Ram were also present. A
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.
"tj
' The evidence of PW-10 proves beyond doubt that certain lands were B
earmarked as 'khal' since 1962-63 when the consolidation proceedings were
completed. TI1e 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 tliat day "first of all, the killa c
lines of these killas, were fixed by taking measurements from stones 'Servari'
and t11ereafter the de111arcation of two karams wide khal was done from the
east ofkilla No. 30/13/1, 13/2-14-15 and KJiam 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 D
assumed that they did not know that any demarcation was done on 26th, it
is not possible to believe that t11ey 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.

PWs-7 & 8 protested against digging of the 'khal' and the incident took E
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 t11e 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 F
and, therefore, it was more likely that they had started the assault. The
defence version thus appears to be more probable than t11e 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 G
after Multan Singh and PW s-7 & 8 were injured. It is not believable tliat 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 H
1026 SUPREME COURT REPORTS [1998] I S.C.R.
I
A 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
B case of aggression by the appellants they cannot be re<~arded 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 has failed to establish beyond reasonable doubt
that the appellants were guilty of tht: offences for which they were tried.
c
We, therefore, allow these appeals, set aside the conviction of the
appellants and acquit them of all the charges levelled a_gainst them. Their bail
bonds are cancelled.

S.V.K.l. Appeals allowed. '·

--

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