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SUPREME COURT OF INDIA
H.R. KHANNA, Y.V. CHANDRACHUD AND P.K. GOSWAMI, JJ.
Godhu and another, Appellants
Versus
State of Rajasthan, Respondents.
Criminal Appeal No. 307 of 1971, D/- 27-8-1974.
Where a part of the dying declaration was found not to be correct and the argument advanced was not to rely on such dying declaration.
Held, that the part of the dying declaration, which is found to be correct and corroborated, can be relied on despite the fact that another part of the dying declaration has not been proved to be correct. (Para 16)
Code of Criminal Procedure 1898 Sec. 233-Charge about the accused dragging the deceased inside the baithka not substantiated-whether the accused can be convicted independently of that charge.
Where the prosecution case was that the deceased was caught and dragged in the baithka of one where he was murdered but this part of the charge was not substantiated and it was contended that the prosecution has failed to prove its case as one of the charges was not proved.
Held, that the prosecution would have to bring the charge home to the accused independent 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 conviction of the accused. It needs also to be emphasised that the fact that an allegation has not been substantiated does not- necessarily 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 acquittal of the accused under section 364 I. P. C. would only be that for the charge of murder the prosecution can not rely upon the evidence that the deceased was dragged inside baithka. (Para 15)
Judgement
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.
2. Godhu and Banwari accused are cousins, being sons of two sisters. The two accused and Gheru deceased belonged to village Jhamber in district Sri Gangangar. The prosecution case is that the relations of Banwari accused with Gheru deceased were strained as there had 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 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 (P. W. 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 alaram 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 P. W. then rushed towards his house and narrated the incident to his mother Sardari (P .W. 3) and brother Udmi (P. W. 4). After informing Sardari and Udmi, Gordhan went to the fields to inform Sarpanch Premaram (P. W. 2). about the incident.
3. 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 go to Banwari s baithak to see her son. The two accused then told Sardari that they had made a mistake. They also requested Sardari to take away Gheru. When Sardari entered Banwari s baithak, she 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 (D. W. 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 P. W. 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 the gunshots. The cot of the deceased was then placed on a cart. Sardari, Udmi and Gordhan P. Ws. took that cart to Hanumangarh, at a distance of 8 miles from the place of occurrence. Report about the occurrence was lodged by Gordha
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