JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J.: - Present appeal has been filed by Balkish Begum alias Babbu wife of Ishwar alias Pappy. She was named as an accused in case FIR No.269 dated 07.07.2000 registered at Police Station Kotwali Sangrur under Section 306 IPC. It was alleged by the prosecution that on 6th July, 2000 at about 11.00 a.m., one Vicky had committed suicide and the appellant had abetted its commission by instigating said Vicky to commit suicide and thus, the appellant committed an offence punishable under Section 306 IPC. The appellant was tried by the Court of Additional Sessions Judge, Sangrur, which vide its judgment dated 8th October, 2001, held the appellant guilty of an offence punishable under Section 306 IPC and vide a separate order of even dated sentenced her to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. To notice the broad contours of prosecution case, it will be necessary to give the gist of prosecution evidence. 3. Dr. Balwinder Singh PW-1, who was posted as a Medical Officer on 6th July, 2000 in Civil Hospital, Sangrur, at about 11.30 p.m had sent a ruqa Ex.PA to SHO Police Station Sangrur, wherein he stated that Vicky son of Babu Ram was admitted in the hospital with a history of approximately 60 per cent burns and smell of kerosene oil was present. It was further stated that Vicky was brought by his father. On the same day, ASI Ajit Singh PW-9 submitted an application and sought opinion of the doctor regarding fitness of Vicky. Vide Ex.PB, the doctor opined that Vicky was not fit to make statement. On the night of 6th July, 2000, Vicky was taken from Civil Hospital, Sangrur to Rajindra Medical College and Hospital, Patiala. On the next day, i.e. 7th July, 2000, ASI Ajit Singh PW-9 reached Rajindra Medical Collage and Hospital, Patiala and moved an application Ex.PW9/A and sought opinion of the doctor regarding fitness of injured Vicky. Dr.Rupinder on 7th July, 2000 at about 2.35 p.m. vide Ex.PW9/B stated that patient Vicky was fit for statement. Thereupon, ASI Ajit Singh PW-9 recorded statement Ex.PW-9/C of injured Vicky, which was attested by his father Babu Ram. Dr.Rupinder on 7th July, 2000 at about 2.35 p.m. vide Ex.PW9/B stated that patient Vicky was fit for statement. Thereupon, ASI Ajit Singh PW-9 recorded statement Ex.PW-9/C of injured Vicky, which was attested by his father Babu Ram. The statement so recorded, after translation, has been reproduced in the impugned judgment and the same reads as under: “That he is resident of the address given above i.e. Sunamigate, Sangrur and labourer. For the last 5-6 months, he developed love affairs with Babbu wife of Ishwar alias Pappy son of Mangat Ram, who resides in the Chobara of the house of Ganga Sahai son of Tota Ram, Dhurigate, Sangrur, as tenant. He often used to meet Babbu in the absence of said Pappy and used to spend his entire earnings to meet her demands. She used to say that she would marry him and does not like Pappy i.e. her husband. During the last 15-20 days, he was short of money and as such could not meet her demand and due to this reason, she started thinking bad of him. Yesterday i.e. on 6.7.2000 at about 11.00 a.m., he went to the rented house of Babbu to meet her and she met him in her room and said to him that in case he cannot live without her then both of them may die after putting kerosene oil on their bodies and setting it on fire. He agreed with it and asked her to bring kerosene oil and match box from the kitchen. Both of them sprinkled kerosene oil on their clothes, but she asked him to set himself on fire first and stated that she would set herself on fire afterwards. On this, he set his clothes on fire with match stick, but she i.e. accused ran inside the room and locked the door. His clothes caught full fire and he jumped into the courtyard from the roof top and then fell down in the street and became unconscious. Now he has learnt that his father Babu Ram got him admitted in Civil Hospital, Sangrur from where the Doctor referred him here i.e. Rajendra Hospital, Patiala. He set himself on fire after sprinkling kerosene oil on his clothes due to non-fulfillment of promise by Babbu and at her asking. He was compelled to die by Babbu by setting himself on fire after sprinkling kerosene oil on the body.” 4. He set himself on fire after sprinkling kerosene oil on his clothes due to non-fulfillment of promise by Babbu and at her asking. He was compelled to die by Babbu by setting himself on fire after sprinkling kerosene oil on the body.” 4. Vicky died on 21st July, 2000 and the above statement is now being relied upon as a dying declaration of the deceased Vicky. 5. Autopsy on the dead body of Vicky was conducted on 21st July, 2000 at about 11.00 a.m. by Dr.D.S. Bhullar PW-7. According to the opinion of this witness, the cause of death was shock due to burns, which was antemortem in nature and sufficient to cause death in the ordinary course of nature. 6. The dying declaration Ex.PW-9/C was attested by Babu Ram, father of the deceased Vicky. He appeared in the witness box as PW-8 and stated that on 6th July, 2000 at about 11.00 a.m., he was present at rickshaw stand when one Bansi Lal rickshaw puller told him that his son Vicky was lying in a burnt condition in front of the house of a Dhobi. Babu Ram went there and found his son in a burnt condition and he was unconscious. He brought his son in the same condition to Civil Hospital, Sangrur and got him admitted there. He further stated that his son used to visit the accused and he had been restraining him. At Rajindra Hospital, Patiala, his son had told him that accused Balkish Begum had asked him that if he could not live without her, then both of them should commit suicide. Then Balkish Begum brought a tin of kerosene oil and both sprinkled kerosene oil on their bodies. The deceased further told his father at the hospital that at the instance of the accused, he had set himself on fire, but accused went inside the room and locked it from inside. This witness stated that his statement was recorded by the police. In crossexamination, he stated that before 6th July, 2000, he was not aware as to whether his son was having any relation with the accused. This witness nowhere stated in his testimony that he had attested the dying declaration Ex.PW-9/C. 7. This witness stated that his statement was recorded by the police. In crossexamination, he stated that before 6th July, 2000, he was not aware as to whether his son was having any relation with the accused. This witness nowhere stated in his testimony that he had attested the dying declaration Ex.PW-9/C. 7. Besides Babu Ram PW-8, prosecution examined Babli PW-4, who stated that about eight months back, she used to reside in the house of one Dhobi i.e. Washerman, as a tenant on the ground floor. She knew Vicky, who was like her brother. He was residing as a tenant in a house at Sunami Gate. Daughter-in-law of owner of the house, whose name was Geeta, was also residing in the upper portion of the house, where this witness was residing. Vicky used to visit this witness but she was not aware if Vicky used to visit upper portion of the house. She further stated that accused present in the Court used to reside in the upper portion of the house, of which she was a tenant on the ground floor. This witness further stated that she was not aware if Vicky used to go to upper portion of the house in order to meet the accused. She was declared hostile by the prosecution and was cross-examined by the Additional Public Prosecutor. In cross-examination, she stated that the accused had a love affair with Vicky and the husband of accused used to go early in the morning and return late in the night. However, she denied rest of the statement made to the police. This witness was duly confronted with her statement Ex.PE recorded under Section 161 Cr.P.C. In cross-examination by the defence counsel, this witness took a summersault and stated that accused was not having any relations with the deceased Vicky. 8. ASI Surinder Kumar PW-2 in the month of July 2000 was posted as MHC at Police Station Kotwali Sangrur. He tendered his affidavit Ex.PC. Constable Krishan Pal PW-3 also tendered his affidavit Ex.PD. The affidavits were tendered by both these witnesses to prove link evidence. 9. HC Ram Singh PW-5 stated that he obtained post-mortem report from Rajindra Hospital, Patiala and handed over the same to ASI Ajit Singh PW-9. Jaspal Singh Sodhi Architect PW-6 had prepared the scaled site plan of the spot Ex.PF. 10. The affidavits were tendered by both these witnesses to prove link evidence. 9. HC Ram Singh PW-5 stated that he obtained post-mortem report from Rajindra Hospital, Patiala and handed over the same to ASI Ajit Singh PW-9. Jaspal Singh Sodhi Architect PW-6 had prepared the scaled site plan of the spot Ex.PF. 10. ASI Ajit Singh PW-9 stated that on 6th July, 2000 he had received ruqa Ex.PA from the doctor and in response thereto, he reached the Civil Hospital, Sangrur. The patient was declared unfit to make statement. On the next day, he went to Rajindra Hospital, Patiala where the doctor declared Vicky fit to make statement and he recorded statement of Vicky Ex.PW-9/C, which was attested by father of Vicky. Thereafter, he deposed regarding various other aspects of the investigation. 11. Prosecution tendered the report of Forensic Science Laboratory Ex.PX and closed its evidence. 12. Thereafter, a statement of the accused appellant was recorded under Section 313 Cr.P.C. She denied all the incriminating circumstances put to her and pleaded innocence. 13. No evidence was led in defence. 14. From the entire prosecution case noticed above, the evidence, which emerges against the accused, is in the form of a written dying declaration Ex.PW-9/C made by the deceased Vicky, which was recorded by ASI Ajit Singh PW-9. This dying declaration has been attested by Babu Ram PW-8, father of the deceased. Babu Ram in his deposition in Court has not stated that he had attested the dying declaration. He has stated that the deceased disclosed him orally that the accused had told him that if deceased Vicky cannot live without the accused then both of them should commit suicide. Thus, this Court has to determine (a) whether reliance can be placed upon the written dying declaration Ex.PW-9/C and (b) whether the oral dying declaration made by the deceased to his father Babu Ram PW-8 is reliable or not. 15. Before this Court could venture to determine these questions, it is to be noticed that in case the dying declaration is believed then the conduct of the accused shall make her liable as an abettor, as defined under Section 108 of Indian Penal Code. Section 108 of IPC reads as under: “108. 15. Before this Court could venture to determine these questions, it is to be noticed that in case the dying declaration is believed then the conduct of the accused shall make her liable as an abettor, as defined under Section 108 of Indian Penal Code. Section 108 of IPC reads as under: “108. Abettor A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.” 16. The very fact that on the instigation of the accused, deceased had put himself on fire is sufficient to hold that the act of the appellant falls within the definition of ‘abettor’ given in Section 108 IPC. 17. Now to determine the validity of the dying declaration. 18. Occurrence, in the present case, had taken place on 6th July, 2000 at about 11.00 a.m. As per ruqa Ex.PA sent to SHO Police Station Sangrur, the deceased reached at Civil Hospital, Sangrur at about 11.30 p.m. Dr. Balwinder Singh PW-1 had declared him unfit to make statement. On the same night, the deceased Vicky was shifted to Rajindra College and Hospital, Patiala, where vide Ex.PW-9/B Dr. Rupinder had declared him fit to make statement on 7th July, 2000 at about 2.35 p.m. The dying declaration Ex.PW-9/C does not bear any endorsement of the doctor. It is nowhere stated by the doctor that the dying declaration was recorded in her presence. Furthermore, Dr.Rupinder, who had given the opinion vide Ex.PW-9/B regarding fitness of Vicky to make a statement, was given up by the prosecution as unnecessary. It was incumbent upon the prosecution to examine Dr.Rupinder, as she could be cross-examined regarding fitness and medical stage of the deceased Vicky as to whether he could speak or not. Vicky remained admitted in Rajindra Hospital, Patiala from 7th July, 2000 to 21st July, 2000. His bed-head-ticket has not been proved on the record. The relevant material has been withheld from the Court, wherefrom it could be independently assessed as to whether Vicky could make a statement or not. The dying declaration Ex.PW-9/C was attested only by Babu Ram, father of the deceased, who while appearing as PW-8 in the Court, has not stated that the dying declaration was recorded in his presence. The relevant material has been withheld from the Court, wherefrom it could be independently assessed as to whether Vicky could make a statement or not. The dying declaration Ex.PW-9/C was attested only by Babu Ram, father of the deceased, who while appearing as PW-8 in the Court, has not stated that the dying declaration was recorded in his presence. Thus, non-examination of Dr.Rupinder, who had declared the injured fit to make statement and withholding of the bed-head-ticket of the deceased, coupled with the fact that the attesting witness has not deposed regarding the dying declaration Ex.PW-9/C, therefore, same is to be ruled out of consideration. 19. Now, whether oral dying declaration to the father Babu Ram PW-8 is entitled to any credence? It is stated that in the present case, occurrence had taken place on 6th July, 2000 at about 11.00 a.m. Babu Ram PW-8 stated that on the same day at about 11.00 a.m. he learnt that his son was lying in a burnt condition and he was unconscious. He brought his son in a burnt condition to Civil Hospital, Sangrur in a rickshaw and got him admitted there. Ruqa Ex.PA sent by Dr.Balwinder Singh PW-1 stated that the injured reached the hospital at about 11.30 p.m. As to where the deceased remained for 12 hours, has not been explained by the witness. Furthermore, when Vicky was carried to the Civil Hospital, Sangrur, he was in an unconscious stage, therefore, he could not make a dying declaration. Babu Ram PW-8 stated that his son had made an oral dying declaration at Rajindra Hoapital, Patiala. No medical record has been proved to show as to whether the deceased was in a fit condition to make statement to his father or not. Babu Ram PW-8 stated that his son remained conscious till 20th July, 2000. According to this witness, from 7th July, 2000 to 20th July, 2000 his son was talking to him and his wife. If that is so, as to why the statement of the deceased was not got recorded from the Magistrate to ensure authenticity of the dying declaration? This question stares at the prosecution. Thus, taking totality of circumstances enumerated above, it is not safe to rely upon the dying declaration Ex.PW-9/C and the oral dying declaration made by the deceased to his father Babu Ram PW-8. 20. This question stares at the prosecution. Thus, taking totality of circumstances enumerated above, it is not safe to rely upon the dying declaration Ex.PW-9/C and the oral dying declaration made by the deceased to his father Babu Ram PW-8. 20. Once the dying declaration is taken out of consideration, there is no incriminating evidence available with the prosecution. Thus, as a matter of abundant caution, benefit of doubt is extended to the appellant. 21. Hence, present appeal is accepted. Conviction and sentence of the appellant is hereby set aside and she is acquitted of the charges. Gurmail Singh v. Superintending Canal Officer… 2012(5) LAW HERALD (P&H) 770 (DB) IN THE HIGH COURT OF PUNJAB AND HARYANA [DIVISION BENCH] Before The Hon’ble Mr. Justice Satish Kumar Mittal The Hon’ble Mr. Justice T.P.S. Mann L.P.A. No. 2344 of 2011 (O&M) Gurmail Singh & Anr. v. Superintending Canal Officer, Sirhind Canal Circle, Ludhiana & Ors. {Decided on 19/04/2012} For the Appellants: Mr. Amaninder Preet, Advocate. For the Respondents No.1 & 2: Mr. Manohar Lall, Addl. A.G., Punjab. For the Respondent No.3: Mr. Surinder Garg, Advocate. (A) Northern India Canal and Drainage Act, 1873, S.30-FF--Water Course--Restoration of--Divisional Canal Officer could not have refused to restore a water course, only on the ground that the water course was not sanctioned according to the provisions of the Act. (Para 5) (B) Northern India Canal and Drainage Act, 1873, S.30-FF--If a water course is running on the spot for a long time, any person aggrieved by the same, cannot demolish it as his own on the ground that it was not sanctioned one--If a person has any grouse, he should approach the canal authorities for alteration/closure of the water course. (Para 6) JUDGMENT Mr. Satish Kumar Mittal, J.: - This Letters Patent Appeal has been directed against the order dated 3.10.2011, passed by the learned Single Judge, whereby the writ petition (Civil Writ Petition No. 9598 of 2010) filed by respondent No.3 Jasmail Singh, challenging the order dated 15.9.2009 (Annexure P-1) passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot, ordering for restoration of the water course; as well as the order 25.3.2010 (Annexure P-2) passed by the Superintending Canal Officer, Sirhind Canal Circle, Ludhiana, affirming the said order, was allowed. After setting aside both the aforesaid orders of the canal authorities, the case was remitted to the Divisional Canal Officer for deciding the matter afresh. After setting aside both the aforesaid orders of the canal authorities, the case was remitted to the Divisional Canal Officer for deciding the matter afresh. 2. In this case, the appellants moved an application under Section 30-FF of the Northern India Canal & Drainage Act, 1873 (hereinafter referred to as ‘the Act’) before the Divisional Canal Officer, alleging therein that respondent No.3 along with his sons had demolished the water course ABC, which was running at the spot, resulting into stopping of irrigation facility to the fields of the appellants. It was prayed that the said water course be restored. The Divisional Canal Officer sought report from the Sub Divisional Officer, who after enquiry submitted the report that a running pucca water course was existing, which was illegally demolished by respondent No.3. It was recommended that the demolished water course be restored. After receiving the report, the Divisional Canal Officer issued notice to the parties, and after providing opportunity of hearing to them, allowed the application of the appellants and ordered for restoration of the demolished water course, after coming to the conclusion that a pucca water course was in existence prior to its demolition, which was in running condition, and the same was found to be demolished. The Superintending Canal Officer affirmed the order of the Divisional Canal Officer, while observing as under :- “After hearing both the parties, the perusal of record and after discussion, this court has found that the order dated 15.9.09 passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot is liable to be upheld. Due to demolition of water course, the canal irrigation of the respondents have been stopped and they are suffering loss of their crops. Concerned Ziledar and Sub Divisional Officer, Ghola have recommended for the restoration of water course after the spot inspection. The water course prior and after the disputed water course is in existence, therefore, it is genuine to restore the disputed water course ABC. Therefore, the appeal of the appellant is hereby dismissed under Section 30 FF of the Canal & Drainage Act, 8 of 1873 and the order dated 15.9.09 passed by the Divisional Canal Officer, Faridkot Canal Division, Faridkot is hereby upheld in the welfare of canal irrigation and production.” The orders of the canal authorities were challenged by respondent No.3 by filing writ petition. The learned Single Judge allowed the writ petition on the ground that the demolished water course was not a sanctioned water course, therefore, it should not have been restored. It was also found that the demolished water course was also bifurcating the land of respondent No.3. The learned Single Judge, after setting aside the aforesaid orders of the canal authorities, remanded the case back to the Divisional Canal Officer, on the ground that the orders passed by the canal authorities were not speaking orders. 3. Learned counsel for the appellants argued that the learned Single Judge has erred in law, while coming to the conclusion that an unsanctioned water course, if demolished by a party, cannot be restored. According to the learned counsel, if a water course is temporary or has been in existence for the continuous period of not less than six months prior to the date of its demolition, the same is to be restored, as such water course falls under the scope of Section 30-FF of the Act. Learned counsel argued that even an un-sanctioned water course, existing or running on the spot for a considerable period, cannot be demolished by a party, and if demolished, the same has to be ordered to be restored by the canal authorities. He further argued that in the present case, the canal authorities have recorded a positive finding that the demolished water course was in running condition before its demolition and the appellants were irrigating their land through the said water course. While referring to the statement of Ranjit Singh (who had exchanged the land, in which the water course was existing, with respondent No.3, his brother), made before the canal authorities, and other documents, learned counsel argued that the demolished water course was running at the spot for the last more than 40-50 years, therefore, the canal authorities rightly ordered restoration of the same, while recording a finding that it was illegally demolished by respondent No.3. 4. Learned counsel for respondent No.3 argued that the learned Single Judge was right while setting aside the orders of the canal authorities, as the demolished water course was not sanctioned one. It has been argued that a sanctioned pucca water course is available at the spot and the appellants can irrigate their land from that water course. 4. Learned counsel for respondent No.3 argued that the learned Single Judge was right while setting aside the orders of the canal authorities, as the demolished water course was not sanctioned one. It has been argued that a sanctioned pucca water course is available at the spot and the appellants can irrigate their land from that water course. It has been further argued that the demolished water course was not running on the spot for a long time. However, the existence of pucca water course before its demolition has not been disputed. 5. After hearing learned counsel for the parties and going through the impugned order as well as the orders passed by the canal authorities, we are of the opinion that the order passed by the learned Single Judge is not sustainable. Section 30-FF of the Act provides that if a person demolishes, alters, enlarges or obstructs a water-course or causes any damage thereto, any person affected thereby may apply to the Divisional Canal Officer for directing the restoration of the water course to its original condition. Section 30-FF contemplates the following three types of water courses, which if illegally demolished, altered, enlarged or obstructed, can be ordered to be restored : (i) sanctioned under the provisions of the Act; (ii) dug with the mutual consent or by agreement between the parties; and (iii) in existence for a long time and prescribed by way of easment. On receiving the application of the appellants under sub-section (1) of Section 30-FF of the Act, the Divisional Canal Officer was required to make an enquiry as he deemed fit and issue notice to the person who demolished, altered, enlarged or obstructed the water course, and after providing opportunity of hearing to the defaulter, order for restoration of the said water course to its original condition. The Divisional Canal Officer could not have refused to restore a water course, only on the ground that the water course was not sanctioned according to the provisions of the Act. 6. In the instant case, on the basis of the report of the Sub Divisional Officer and the statements made by the parties, the Divisional Canal Officer recorded a finding that a pucca water course was running and was being used for irrigation of the field of the appellants, which was illegally demolished by respondent No.3. 6. In the instant case, on the basis of the report of the Sub Divisional Officer and the statements made by the parties, the Divisional Canal Officer recorded a finding that a pucca water course was running and was being used for irrigation of the field of the appellants, which was illegally demolished by respondent No.3. Ranjit Singh, real brother of respondent No.3, in the statement before the canal authorities, had admitted that the water course in question was running for the last about 40-50 years. He also stated that the land, in which the water course was existing, was exchanged by him with respondent No.3. If a water course is running on the spot for a long time, any person aggrieved by the same, cannot demolish it at his own on the ground that it was not sanctioned one. If a person has any grouse, he should approach the canal authorities for alteration/closure of the water course. In the present case, the learned Single Judge has set aside the orders of the canal authorities on the ground that the un-sanctioned water course should not have been ordered to be restored. In our view, the orders of the canal authorities, particularly ordering restoration of the water course, with a clear finding that prior to its demolition, the water course was running and irrigating the fields, should not have been interfered by the learned Single Judge in the writ jurisdiction, as there was no jurisdictional error in the orders passed by the canal authorities. Undisputedly, under Section 30-FF of the Act, the Divisional Canal Officer has been empowered to order for restoration of the water course, which was illegally demolished by a party. In the present case, before passing the order of restoration of the water course, due procedure was followed. Even if the water course was not sanctioned under the provisions of the Act, and if the same was in running condition for a long time, it should have been ordered to be restored, as Section 30-FF of the Act contemplates restoration of three types of water courses, i.e. (i) the water course sanctioned under the provisions of the Act; (ii) the water course dug with the mutual consent or by agreement between the parties; and (iii) the water course in existence for a long time and prescribed by way of easment. It is not the case of respondent No.3 that the demolished water course was not in existence for a long time. His only case is that it was bifurcating his land. In the writ petition, respondent No.3 himself had pleaded that even temporary water course can be ordered to be restored, if it is proved that it was running six months prior to the date of its demolition. Even Ranjit Singh, brother of respondent No.3, in his statement before the canal authorities had specifically stated that the demolished water course was running for the last about 40-50 years, and the land, in which the water course was existing, was exchanged by him with respondent No.3. In these circumstances, the canal authorities had rightly ordered for restoration of the demolished water course. A perusal of the orders passed by the canal authorities does not indicate that those orders are non-speaking and do not assign good reasons for ordering restoration of the water course. Therefore, in our view, the learned Single Judge should not have set aside those orders, which were perfectly justified in the facts and circumstances of the case, and should not have remanded the case to the Divisional Canal Officer to decide the matter afresh. In our opinion, the canal matters, particularly demolition of the water course, should be decided expeditiously, without any delay, as demolition of the water course adversely affects the irrigation of the fields of the farmers. Therefore, remand of the case, without any justification, will un-necessary further delay the matter. In these circumstances, we are of the opinion that the learned Single Judge has wrongly interfered in the orders of the canal authorities, whereby they had ordered for restoration of the water course, which was in running condition and in existence prior to its demolition. 7. In view of the above, this appeal is allowed. The order dated 3.10.2011 passed by the learned Single Judge is hereby set aside.