Important Point
Section 24 of the Haryana Canal and Drainage Act, 1974 has no applica­tion to a case wherein the area earmarked for khal has to be dug up as a khal as it is not a case of alteration or destruction etc., of the exist­ing khal which is to be repaired.

Judgment

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.

2. 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 stage 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.

3. The prosecution had examined Babu Ram (P.W. 3) and Khushi Ram (P.W. 8) to prove its case It also examined Hari Ram Patwari (P.W. 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 Khal 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.

4. The learned trial Judge disbelieved the defence version and also disbelieved Hari Ram Patwari (P.W. 10) and relying upon the evidence of Babu Ram and Khushi Ram (P.Ws. 7 & 8) convicted the appellants. The High Court agreed with the finding recorded by the trial Court and confirmed their conviction.

5. 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 (P.W. 7) and Khushi Ram (P.W. 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