# [1975] 1 S.C.R. 906

- **Citation:** [1975] 1 S.C.R. 906
- **Court:** Supreme Court of India
- **Decided:** 1974-08-27
- **Case number:** Criminal Appeal No. 656 of 1970
- **Bench:** H. R. Khanna, Y. V. Chandrachud, P. K. Goswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1975-1-s-c-r-906-6267
- **Pages:** 8

## Headnote

B
P£nal Codt-S.<t. 302 and 364-Acquittal under s. 364.
Dying declaration-On~ part believed and andther part disbellevtd-Wh~thtr
wlrole rhould be reiecttd.
The appellants B and G were charged with offences under ss. 302 and 364
J.P.C. but were acquitted for an offence under s. 364 !PC. The deceased had
C
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 dece....,d in self-defence
because the deceased entered his baitlwk 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 tho appellants under s. 302. The High Court affirmed the conclusiom of the trial court.
Dismissing the appeal of B and allowing that of G, this Court
D
HELD : (1)
The effect of the acquittal of the accused under •· 364 !PC
iri 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 bailbak
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 leg:al
infirmity in the conviction of the accused.
[911 B-D]
E
(2) If a part of the dying declaration has not been proved to be correct i.t
doe! DOt 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 indissoh1bly linked with the other part of the dying declaration that it is not p086ible
to sever the two parts. In such an event the court would be justified in reF
jecting 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 correctness Of one part does not depend upon the correctness of the other. In tho last
mentioned cases the· coutt would not normally act upon a part of the dying declaration, the other part Of \Vhich has not been found to be true, unless tho part
relied upon is corroborated in material particulars by the other evidence on re"'
t
cord. If such other evidence sl1ows 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 declarati0n has not been
G
proved to be correct.
r911 E-Hl
ln the instant case the part of the 'fi:tatement in the dying deCiaration 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 BJ
II
The case against G is not free from reasonable doubt and he is entiUed t-0
the benefit thereto. [913 AJ
A
B
;
c
D
E
F
G
H
GOD!fU V. RAJASTHAN (Khanna; J.)
907

## Text

906
GODHU&ANR.
'"
STATE OF RAJASTHAN
August 27, 1974
A
[H. R. KHANNA, Y. V. CHANDRACHUD, AND P. K. GOSWAMI, JJ.)
B
P£nal Codt-S.<t. 302 and 364-Acquittal under s. 364.
Dying declaration-On~ part believed and andther part disbellevtd-Wh~thtr
wlrole rhould be reiecttd.
The appellants B and G were charged with offences under ss. 302 and 364
J.P.C. but were acquitted for an offence under s. 364 !PC. The deceased had
C
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 dece....,d in self-defence
because the deceased entered his baitlwk 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 tho appellants under s. 302. The High Court affirmed the conclusiom of the trial court.
Dismissing the appeal of B and allowing that of G, this Court
D
HELD : (1)
The effect of the acquittal of the accused under •· 364 !PC
iri 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 bailbak
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 leg:al
infirmity in the conviction of the accused.
[911 B-D]
E
(2) If a part of the dying declaration has not been proved to be correct i.t
doe! DOt 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 indissoh1bly linked with the other part of the dying declaration that it is not p086ible
to sever the two parts. In such an event the court would be justified in reF
jecting 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 correctness Of one part does not depend upon the correctness of the other. In tho last
mentioned cases the· coutt would not normally act upon a part of the dying declaration, the other part Of \Vhich has not been found to be true, unless tho part
relied upon is corroborated in material particulars by the other evidence on re"'
t
cord. If such other evidence sl1ows 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 declarati0n has not been
G
proved to be correct.
r911 E-Hl
ln the instant case the part of the 'fi:tatement in the dying deCiaration 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 BJ
II
The case against G is not free from reasonable doubt and he is entiUed t-0
the benefit thereto. [913 AJ
A
B
;
c
D
E
F
G
H
GOD!fU V. RAJASTHAN (Khanna; J.)
907
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 307
of J97J.
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. Mui/a, Ganpat Rai and S. K. Sabanval, for the appellants.
Sobhagntal 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 Ghern 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 the baithak from inside. Gordhan (PW 1),
who is elder 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 h.eard that PJl was being killed,.
Gordhan PW then rushed towards his house and narrated the incident
to bis 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
ba'k but Sardari said that even at the risk of her life she would go to
Banwari's baithak to see her son. The two accused then told Sardari
'908
SUPREME COURT REPORTS
[J975j J ,S.C H.
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, Ghent 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
had 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 Ghent 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 Gangamgar hospital. X-ray of the abdominal
region of Gheru was then taken to find the presence of pellets. As
the condition ofGheru 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
<lying 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 suc-
·cumbed to his injuries in the hospital on September 24, 1969 at 5. IO a.m.
A
B
c
D
E
F
The two accused were arrested by ASI Mahendra Singh (PW 8)
-0n September 23. 1969.
B~nwari accused on iP.terrogation by the
G
As.sistant Sub Inspector disclosed that day that he had kept his doublebarrcl 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 mto possess10n. Godhu accused was interrogated
by Sub Inspector Hanuman Dutt on September 27, 1969. Godhu
H
then disclosed that he had buried a gun with one empty and
<>ne live cartridge in his cotton field and that he could get the same
..
t
A
B
c
D
E
F
G
H
GODHU V. RAJASTHAN (Klumna, J.)
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 Chandu 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 bis cot by Banwari.
Chaitan, Saudagar Singh DWs and Godhu accused along with others
then came there and were told about the incident by Banwari. Godhu
was thereafter sent to Ghem's hou'c 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 bis village
Jhamber. As regards his gun and cartridges, Banwari stated that
on the day following the occurrence he gave his gun and two empty
cartrid~es 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
(OW 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 bad been forcibly
taken by.the two accused inside the baithak of Banwari. Likewise,
the trial judge rejected the prosecu•ion 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 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
SUP.REME COURT .REPORTS
[1975] 1 s.c.R.
recorded by Shri Chopra, Sub Divis:onal 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 w0re 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 wonnds were on the anteroJateral 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 haemorrhage 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 die<f.
As against that, Godhu accused has denied his participation in the
occurrence, while the plea of Banwari is that it was he alone wlJO'
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 thece, witnesses in this respect. We see
no sufficient ground to int<,fore 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 ofBanwari by the two accused.
A
B
D
E
+
F
G
•
H
GODHU V, RAJASTHAN (Kharm111, J.)
. 9 .11
A
It is pointed out that the two accused were acquitte!lfortheoffence
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 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
B
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 whe-
./
ther the accused are guilty of the offence of murder or not, we shouict
proceed upon the assumption that the prosecution allegation that the
c
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 independentI.I
ly 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 susbtantiated does not necesD
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 prosectution cannot rely upon the evidence that the deceased was dragged inside Banwari's baithak by the two accused.
E
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 dyi~
p
declaration that it is not possible to sever the two parts. Itt
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 correctnessof the other part. In the last mentioned cases the court would not
...
_,,,.,
norm~lly act upon ·, part of the dying declaration, the other part
G
of which has ot 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.
H
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
SUPREME COURT REPORTS
[1975) I s.c.R.
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 insid~ the baithak of Banwari and the truth of former
part does not depend upon the truth of the tatter 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 injnries. 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 discuS'ed 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 unlicenced
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 i> bereft of any evidence which may
lend corroboration to the dyinr. declaration of Gheru deceased regarding
the complicity of Godhu. It is, in onr opinion, not safe to base the
conviction of Godhu accused upon the uncorroborated dying declaration of Ghern deceased in this case.
There is another aspect cf the matter so far as Gcdhu 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 Gcdhu 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 sectcin 342
of the Cede of Criminal Proe<dure 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 Banwai should take the entire responsi-
' bility over himself and why he should make a statement exculpating
Gcdhu. 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
A
B
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F
G
H
I
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•
•
Ill.
i
A
B
GOD HU v. RA.r AS THAN (Khanna, J.)
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 comiction for that offer.ce
In the result the appeal of Banwari accused is dismissed. while
that of Godhu is partially allowed. The convietion 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.
12 -L192SupCI/75