LexGODHU & ANR. versus STATE OF RAJASTHAN
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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 wea- pon 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 con- clusiom 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 declara- tion. 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 indis- soh1bly 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 re- F 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 correct- ness 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 de- claration, 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 declara- tion 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 him- self 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
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