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PETITIONER: GODHU & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT27/08/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ CHANDRACHUD, Y.V. GOSWAMI, P.K.

CITATION:  1974 AIR 2188            1975 SCR  (1) 906  1975 SCC  (3) 241

ACT: Penal Code--Ss. 302 and 364--Acquittal under s. 364. Dying  declaration--one  part  believed  and  another   part disbelieved--Whether whole should be rejected.

HEADNOTE: The appellants B and G were charged with offences under  ss. 302  and 364 I.P.C. but were acquitted for an offence  under s. 364 IPC.  The deceased had made a dying declaration  that he was taken forcibly into B’s baithak and was shot at.   At the  trial  B stated that he had fired at  the  deceased  in self  defence because the deceased entered his baithak in  a drunken state with a deadly weapon in his hand and attempted to  attack  him.   Rejecting the plea of  self  defence  and believing one part of the dying declaration and disbelieving another,  the trial Court convicted the appellants under  s. 302.   The High Court affirmed the conclusions of the  trial court. Dismissing  the  appeal of B and allowing that  of  G,  this Court HELD : (1) The effect of the acquittal of the accused  under s.  364 IPC in the instant case would only be that  for  the charge  of  murder,  the prosecution cannot  rely  upon  the evidence  that the deceased was dragged inside. the  baithak by the two accused.  The prosecution would have to bring the charge  of murder home to the accused independently  of  the allegation that the accused had forcibly taken the  deceased inside  the baithak.  If, that is done there would no  legal infirmity in the conviction of the accused. [911 B-D] (2)  If a part of the dying declaration has not been  proved to  be  correct  it  does  not  necessarily  result  in  the rejection  of  the  whole of  the  dying  declaration.   The rejection  of a part of the dying declaration would put  the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which  is not found to be correct is so indissolubly  linked with the other part of the dying declaration that it is  not possible to sever the two parts.  In such an event the court would  be  justified  in rejecting the whole  of  the  dying declaration.  There may, however, be other cases wherein the two parts of the dying declaration may be severable and  the

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correctness of one part does not depend upon the correctness of  the other.  In the last mentioned cases the court  would not  normally act upon a part of the dying declaration,  the other  part of which has not been found to be  true,  unless the part relied upon is corroborated in material particulars by  the  other evidence on record.  If such  other  evidence shows  that  part of the dying declaration  relied  upon  is correct and trustworthy the court can act upon that part  of the dying declaration despite the fact that another part  of the  dying  declaration has not been proved to  be  correct. [911 E-H] In  the instant case the part of the statement in the  dying declaration that the appellant had shot him was corroborated by  the  statement  of  the  appellant  himself  because  he admitted having injured the deceased by firing at him.  That part  of the dying declaration is separable from  the  other part  regarding  the  deceased having  been  forcibly  taken inside the baithak and the truth of the former part does not depend upon the truth of the latter part. [911 H-912 B] The case against G is not free from reasonable doubt and  he is entitled to the benefit thereto, [913 A] 907

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 307 of 1971. Appeal by Special Leave from the Judgment & Order dated  3rd September,  1971  of  the  Rajasthan High  Court  in  D.  B. Criminal Appeal No. 656 of 1970. A.N     Mulla,  Ganpat  Rai  and S.  K.  Sabarwal,  for  the appellants. Sobhagmal Jain and S. K. Jain, for the respondent. The Judgment of the Court was delivered by KHANNA,  J.-Godhu  (25) and Banwari (45) were  convicted  by learned  Additional  Sessions  Judge  Sri  Ganganagar  under section 302 Indian Penal Code for causing the death of Gheru (30)  and were sentenced to undergo imprisonment  for  life. Conviction  was  also recorded against Godhu  under  section 25(1)(a)  of the Arms Act and against Banwari under  section 27  of that Act.  Each of the two accused was sentenced  for the   offence  under  the  Arms  Act  to  undergo   rigorous imprisonment for a period of six months and to pay a fine of Rs. 100/or in default to undergo imprisonment for a  further period  of  one month.  The sentences were  ordered  to  run concurrently.   Charge  was  also  framed  against  the  two accused  for an offence under section 364 Indian Penal  Code but  they  were  acquitted on that  count.   On  appeal  the Rajasthan  High  Court affirmed the judgment  of  the  trial court.  The two accused thereafter came up in appeal to this Court by special leave. Godhu  and  Banwari accused are cousins, being sons  of  two sisters.   The  two accused and Gheru deceased  belonged  to village Jhamber in district Sri Ganganagar.  The prosecution case  is  that the relations of Banwari accused  with  Gheru deceased  were strained as there bad taken place  a  quarrel between them about 15 days before the present occurrence. on September  21,  1969 at about 2 p. m., it is  stated,  Gheru deceased while returning from the fields passed in front  of the  house of Banwari accused.  The two accused then  caught hold of the arms of Gheru and forcibly took him to Banwari’s baithak.  Godhu was at that time armed with a  single-barrel gun,  while Banwari had a double-barrel gun.   After  taking Gheru inside the baithak, the two accused bolted the door of

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the  baithak  from  inside, Gordhan (PW  1),  who  is  cider brother  of  Gheru deceased, was at a distance of  about  50 yards  when  he  saw the two  accused  taking  Gheru  inside Banwari’s  baithak.   Gordhan raised alarm and  also  rushed towards  the baithak. Just then two gunshots were  heard  in quick succession from inside the baithak.  Cry of Gheru  too was  heard that he was being killed, Gordhan PW then  rushed towards  his house and narrated the incident to  his  mother Sardari  (PW  3) and brother Udmi (PW 4).   After  informing Sardari  and  Udmi,  Gordhan went to the  fields  to  inform Sarpanch Premaram (PW 2) about the incident. Sardari  and Udmi on being told of the incident  by  Gordhan went to Banwari’s house and found the two accused present in the  courtyard  of  that house  armed  with  guns.   Banwari accused  then  threatened Sardari and Udmi  not  to  proceed ahead.  Udmi thereupon retreated back but Sardari said  that even  at  the  risk of her life she would  g0  to  Banwari’s baithak to see her son.  The two accused then told Sardari 908 that  they had made a mistake.  They also requested  Sardari to take away Gheru.  When Sardari entered Banwari’s baithak, he saw Gheru lying on a cot with injuries on his abdomen and right hand.  On the query of Sardari, Gheru replied that the stomach  injury  had  been caused by Banwari  and  the  hand injury  by Godhu with gunshots.  In the meantime, Udmi.  who had  made  a retreat, came to Banwari’s baithak  along  with Saudagar  Singh (DW-4). Udmi too asked Gheru as to  who  had injured him.  Gheru replied that the stomach injury bad been caused  by Banwari and the hand injury by Godhu  with  guns. Udmi and Sardari then carried the cot on which the  deceased was  lying to their house.  Saudagar Singh also  accompanied them.  On the way Premaram Sarpanch and Gordhan PW met them. On arrival at the house of the deceased, those carrying  the cot placed it in front of the door of that house.   Premaram Sarpanch  then  asked Gheru deceased as to who  had  injured him.  The deceased then replied that he had been injured  by the  two accused by gunshots.  The cot of the  deceased  was then  placed on a cart.  Sardari, Udmi and Gordhan PWs  took that cart to Hanumangarh, at a distance of 8 miles from  the place of occurrence.  Report about the occurrence was lodged by Gordhan PW at police station Hanumangarh at 6.30 p.m.  As the doctor was not available in Hanumangarh hospital, a jeep was arranged and in that jeep Sardari and Udmi took Gheru to Ganganagar.   Gheru was admitted in the Ganganagar  hospital the same night at 12.20 a.m. Dr.  Momanram  (PW 6) examined the injuries  of  Gheru  soon after he was admitted in the Ganganagar hospital.  X-ray  of the  abdominal  region of Gheru was then taken to  find  the presence of pellets.  As the condition of Gheru was serious, Dr.  Momanram  asked Ganganagar police to  arrange  for  the recording  of his dying declaration.  Dying declaration  Ex. P  28 of Gheru deceased was recorded by Shri B.  D.  Chopra, Sub  Divisional Magistrate on the morning of  September  22, 1969 after Dr. S. K. Sharma (PW 7) had certified that  Gheru was  in  a  fit  condition to  make  statement.   The  dying declaration was dictated by the Sub Divisional Magistrate to his  clerk.   Gheru  admitted the dying  declaration  to  be correct and thumb-marked it. in that dying declaration Gheru narrated the facts of the occurrence as given above. An  operation was performed for the removal of pellets  from the  body  of  Gheru on September 22, 1969  by  Dr.  Gehlot. Gheru succumbed to his injuries in the hospital on September 24,1969 at 5, 10 a.m. The  two accused were arrested by ASI Mahendra Singh (PW  8) on September 23, 1969.  Banwari accused on interrogation, by

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the  Assistant Sub Inspector disclosed that day that he  had kept  his double-barrel gun along with a bag in the  kitchen of  his  house  and that he could get  the  same  recovered. Banwari  thereafter  got  recovered  gun  P-5  :and  a   bag containing   three  cartridges,  two  of  which  were   live cartridges  and one was an empty cartridge.  Licence of  the gun of Banwari too was taken into possession.  Godhu accused was interrogated by Sub Inspector Hanuman Dutt on  September 27,  1969.   Godhu then disclosed that he had buried  a  gun with  one empty and one live cartridge in his  cotton  field and-that he could get the same 909 recovered.   Godhu thereafter got recovered a  single-barrel gun  along  with one live and one empty cartridge  from  his field. At  the trial Godhu accused denied his participation in  the occurrence..  According  to him, he heard two  gunshots  and thereafter  went to Banwari’s house.  Chaitan,  Banwari  and Chadu were present there  while Gheru was lying wounded on a cot  in  Banwari’s  baithak.  Banwari  then  sent  Godhu  to Gheru’s house.  Godhu brought Sardari and Udmi and they  all carried  Gheru  on a cot to his house.  A Gandasi  was  also carried  on  that cot.  According further  to  Godhu,  Gheru deceased  did not utter any word at that time.   Godhu  also denied the recovery of any gun or cartridge at his instance Banwari  accused gave a counter version of  the  occurrence. According  to  him,  he helped the first wife  of  Gheru  in securing  maintenance  allowance from  him  (Gheru).   Gheru consequently became inimical towards Banwari.  On the day of occurrence at about 2 p.m., it is stated, Banwari was  lying on  a cot in his baithak.  His loaded gun was also lying  on the  cot.   Just then Gheru came inside the baithak  with  a Gandasi in his hand.  Gheru was in a drunken state at  that, time  and started abusing Banwari.  When Banwari told  Gheru not  to abuse, Gheru stepped forward and raised his  Gandasi to attack Banwari.  Banwari then took his gun and fired  two shots  at  Gheru in self defence.  Gheru fell down  and  was laid on his cot by Banwari.  Chaitan, Saudagar Singh DWs and Godhu  accused  along with others then came there  and  were told  about  the incident by Banwari.   Godhuwas  thereafter sent to Gheru’s house and he called Sardari and Udmi.  Gheru was taken on the cot from Banwari’s baithak to his (Gheru’s) house.  Jeep of one Sheonarain was then sent for and on that jeep Gheru was taken first to Hanumangarh and thereafter  to Ganganagar.   Banwari also went in that jeep to  Hanumangarh and  wanted  to lodge a report but he was told  by  Premaram Sarpanch  that  he  and  Gordhan  would  lodge  the  report. Banwari  consequently came back to his village Jhamber.   As regards  his gun and cartridges, Banwari stated that on  the day  following the occurrence he gave his gun and two  empty cartridges to the police when the same were demanded by  the Sub Inspector. Banwari  also  made a statement on oath in  support  of  his version by coming into the witness box as DW  1.  Sheonarain (DW  2),  Chaitan (DW 3) and Saudagar Singh (DW  4)  deposed that  they had been given the version of the  occurrence  as given above by Banwari accused. The  learned  Additional Sessions Judge did  not  place  any reliance  upon the evidence of Gordhan PW that the  deceased had  been  forcibly  taken by the  two  accused  inside  the baithak of Banwari.  Likewise, the trial judge rejected  the prosecution evidence that the two accused’ had told  Sardari immediately  after  the  occurrence that  they  had  made  a mistake.   The learned Judge, however, placed reliance  upon the  evidence  regarding  the  deceased  having  made  dying

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declarations  in.. the presence of Sardari,  Udmi,  Premaram and  Gordhan  PWs.   Reliance was  also  placed  upon  dying declaration Ex.  P 28 of the deceased’ 910 recorded by Shri Chopra, Sub Divisional Magistrate.  It was, however,  observed that only that part of dying  declaration Ex.   P  28 was. worthy of credence as related  to  the  two accused  having fired at Gheru deceased.  The other part  of the dying declaration regarding the forcible taking of Gheru to  the  baithak  of  Banwari  was  not  considered  to   be trustworthy.   Evidence about the recovery of the  guns  and cartridges at the instance of the accused was also accepted. The  version contained in the statement of Banwari  that  he had  caused  injuries to Gheru in exercise of the  right  of private   defence  was  rejected.   Likewise,  the   defence evidence  was rejected.  In the result the two accused  were convicted and sentenced as above, On appeal the learned Judges of the High Court substantially affirmed  the  conclusions of the trial judge. it  was  also observed that no motive for the assault on the deceased  had been proved but that fact was held to be not very material. It  is  the common case of the parties that  Gheru  deceased died   as  a  result  of  injuries  received  by   gunshots. According to Dr. Momanram who examined Gheru deceased before his  death as well as performed post mortem  examination  on his dead body, there were 8 injuries consisting of punctured wounds  and two injuries consisting of lacerated  wounds  on the  body  of  Gheru.   The punctured  wounds  were  in  the abdominal  cavity,  while the lacerated wounds were  on  the anterolateral  aspect  of  the right  wrist  joint  and  the medical  side  of  palmer aspect of  right  hand.   Stomach, mesentery,  small  intestines,  large  intestines  and  left kidney  were  found to be punctured at a number  of  places. Death was due to hemorrhage and shock resulting from gunshot injuries.  The case for the prosecution is that it were  the two  accused who fired shots on the deceased as a result  of which  he died.  As against that, Godhu accused  has  denied his  participation  in  the occurrence, while  the  plea  of Banwari is that it was he alone who fired both the shots  on the  deceased,  though,  according  to him,  he  did  so  in exercise of the right of private defence. We  may first take the case of Banwari accused.  So  far  as this accused is concerned, the prosecution has led  evidence to   show  that  the  deceased  made  a  series   of   dying declarations  in the course of which he stated that  Banwari accused had fired at him and thus caused him injuries.   The first  dying declaration was made to Sardari and the  second one  to  Udmi.   The third dying  declaration  was  made  to Premaram  and  the  fourth one to Shri  B.  D.  Chopra,  Sub Divisional  Magistrate.  These witnesses have deposed  about the deceased having made the dying declaration before  them. Both  the trial court and the High Court have  accepted  the evidence  of  these witnesses in this respect.   We  see  no sufficient ground to interfere with the appraisement of that evidence by the trial court and the High Court. Mr.  Mulla  on behalf of the appellants has argued  that  no reliance should be placed upon the dying declarations of the deceased  as  the  deceased  in  the  course  of  his  dying declaration Ex.  P 28 stated that he had been forcibly taken inside the baithak of Banwari by the two accused. 911 It  is pointed out that the two accused were  acquitted  for the offence under section 364 Indian Penal Code and as  such the  part  of  the  statement of  Gheru  deceased  in  dying declaration Ex.  P 28 that he had been forcibly taken inside

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the baithak of Banwari by the two accused should be held  to be false.  It is further urged that once a part of the dying declaration  has been found to be not correct, the whole  of the dying declaration should be rejected. We  have given the matter our consideration and are  of  the opinion that the effect of the acquittal of the two  accused for the offence under section 364 Indian Penal Code is  that in arriving at the conclusion whether the accused are guilty of the offence of murder or not, we should proceed upon  the assumption that the prosecution allegation that the  accused had  forcibly taken Gheru inside Banwari’s baithak  has  not been substantiated.  The prosecution would have to bring the charge home to the accused independently of that allegation. If, however, the prosecution establishes the charge  against the accused independently of that allegation, there would be no  legal impediment or infirmity in the conviction  of  the accused.  It needs also to be emphasised that the fact  that an  allegation  has not been substantiated does  not  neces- sarily  go  to  show  that  the  allegation  is  false.   An allegation   may  be  correct  and  still  it  may  not   be substantiated at the trial.  The effect of the acquittal  of the  accused under section 364 Indian Penal Code would  only be,  as  already mentioned earlier, that for the  charge  of murder  the prosecution cannot rely upon the  evidence  that the deceased was dragged inside Banwari’s baithak by the two accused. We  are also unable to subscribe to the view that if a  part of the dying declaration has not been proved to be  correct, it must necessarily result in the rejection of the whole  of the dying declaration.  The rejection of a part of the dying declaration  would put the court on the guard and induce  it to apply a rule of caution.  There may be cases wherein  the part  of  the dying declaration which is, not  found  to  be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the,  two parts.   In such an event the court would well be  justified in rejecting the whole of the dying declaration.  There may, however,  be  other cases wherein the two parts of  a  dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part.   In the  last mentioned cases the court would not  normally  act upon  -  part of the dying declaration, the  other  part  of which  has of been found to be true, unless the part  relied upon  is corroborated in material particulars by  the  other evidence on record.  If such other evidence shows that  part of  the  dying  declaration  relied  upon  is  correct   and trustworthy,  the court can act upon that part of the  dying declaration despite the fact that another part of the  dying declaration has not been proved to be correct. So  far  as Banwari accused is concerned, we find  that  the part  of  the  statement  of Gheru  deceased  in  his  dying declarations  that  Banwari  accused  had  shot  at  him  is corroborated  by  the statement of Banwari  himself  because this accused admits having injured Gheru 912 deceased  by  firing at him.  The above part  of  the  dying declaration is separable from, the other part regarding  the deceased  having been forcibly taken inside the  baithak  of Banwari  and the truth of former part does not  depend  upon the  truth  of  the latter part.   We,  therefore,  find  no difficulty  in  accepting the part of dying  declaration  of Gheru  that  Banwari  had shot at him and  thus  caused  him injuries.  The plea of Banwari that he fired at the deceased in  exercise of the right of private defence can plainly  be not accepted.  Both the trial court and the High Court  have

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discussed  the matter at great length and have  concurrently come  to the conclusion that the version of Banwari in  this respect  is without any basis.  We see no cogent  ground  to take a different view. Coming to the case of Godhu accused we find that there is no corroboration  of  the statement of Gheru  deceased  in  his dying  declaration  that Godhu too had fired  at  him.   The prosecution  sought  corroboration against  Godhu  from  the evidence  of Sardari and Udmi that when they arrived at  the house  of  Banwari  accused, they found  Godhu  and  Banwari accused  present  in the courtyard of the house  armed  with guns.   It  seems  difficult, in our  view,  to  place  much reliance upon this part of the statement of Sardari and Udmi because  it  runs counter to the version of  the  occurrence given in the first information report wherein it was  stated that  both Banwari and Godhu after shooting at the  deceased had  run  away with their guns.  Godhu and Banwari  as  such could  not have been found in the courtyard of the house  of Banwari when Sardari and Udmi came there. The  prosecution  also  led evidence  to  show  recovery  of unlicensed gun and two cartridges from the field of Godhu in pursuance of his statement.  This evidence does not  connect Godhu  accused  with the crime of murder of  Gheru  deceased because there is nothing to show that the said gun was  used for  the  murder  of the deceased.  We thus  find  that  the material on record is bereft of any evidence which may  lend corroboration  to the dying. declaration of  Gheru  deceased regarding  the complicity of Godhu.  It is, in our  opinion, not  safe to base the conviction of Godhu accused  upon  the uncorroborated  dying declaration of Gheru deceased in  this case. There  is  another  aspect of the matter  so  far  as  Godhu accused  is concerned.  As would appear from the  resume  of facts  given above, there are only the statements  of  Gheru deceased alone that Godhu accused too had fired at him.   As against  the statements of Gheru, we have the  statement  of Godhu  that  he  did  not  cause  any  injury  to  Gheru  or participate in this occurrence. in addition to that, we have the statement of Banwari accused not only under section  342 of the Code of Criminal Procedure but also one made on  oath that the shots on the deceased were fired by Banwari  alone. Nothing  has been shown to us as to why Banwari should  take the  entire  responsibility over himself and why  he  should make a statement exculpating Godhu.  It is also pertinent to observe  in this context that the High Court has found  that Godhu  accused has not been shown to possess any  motive  to kill the deceased.  We are therefore, of the opinion 913 that  the  case against Godhu for the offence  of  murdering Gheru deceased is not free from reasonable doubt.  He  would in the circumstances be entitled to the benefit thereof. As  regards the conviction of Godhu accused for the  offence under  section  25  of  the  Arms  Act,  the  same  was  not Challenged before the High Court.  We accordingly uphold his conviction for that offence In  the result the appeal of Banwari accused is  dismissed., while that of Godhu is partially allowed.  The conviction of Godhu for the offence under section 302 Indian Penal Code is set  aside  and  he is acquitted on  that  charge.   Godhu’s conviction and sentence for the offence under section 25  of the Arms Act are maintained. P.B.R.                                Appeal partly allowed. 192SupCI/75 914

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