H.R. Khanna, J.
1. 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 Ghetu (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 offices under the Arms Act to undergo (sic) 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 (sic) 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 the sisters, The two accused and Gheru deceased beloged to village Jhamber in District Sri Ganganagar 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 a single-(sic), 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 bro. of Gheru deceased, was at a distance of about 50 years 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 (sic) from inside the baithak (sic) of Gheru too was heard that he was being Killed. Gordhan PW then rushed towar is his house and natrated he incident to his mother Sardari (PW 3) and brother Udmi (PW4) after informing Sardari and Udmi, Gordhan went to the fields to inform Sarpanch Premaram PW 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 bouse armed with guns Banwari accused then threatened Sardari & Udmi not to proceed shead Udmi thereupon retreated back but Sardari said that even at the risk of her lite 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 One the query of Sardari, Gheru replied that the stomach injury had been caused by Banwari and the hand injury by Godnu with gunshots In the meantime, Udmi who had made a retreat, came to Banwari's baithak along with Saudagar Singh (DW4). Udmi too asked Gheru as to who had injured him. Gheru replied that the stomach injury had been caured 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 (sic) Sarpanch the (sic) Gheru deceased as, to who had injured him The deceased then (sic) that he had been injured by the two accused by gunshots. The cot of the deceased was then placed on (sic) Sardari, Udmi and Gordon PWs took that (sic) to Hanumangerh, at a distance of 8 ruiles from he place of occurrence. Report about the occurrence was lodged by Gordhan PW at police (sic) Hanumangarh at 6,30 p.m. /as the (sic) was not available in Hanumangarh hospital, a jeep was arranged & 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.
4. 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 precence 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 Gneru 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.
5. 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 p m.
6. The two accused were arrested by ASI Mahendra Singh (PW 8) on September 23, 1969 Banwari accused on interrogation by the Assistant Sub-Inspector disclosed that day that he bad 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 & a bag containing three cartridges Licence of the gun of Banwari too was taken into possession Godhu accused was interrogated by Sub Inspector Hanuman Dutt on September 27, 1969. Gheru then disclosed that he had buried the gun empty and one live cartridge in his cotton field and that he could get the same-recovered. Gheru thereafter got recovered a single-barrel gun along with one live and one empty cartridge from his field.
7. 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 Cnaitan Banwari & Cnandu were present there, while Gheru was lying wounded on a cot in Banwari's baithak. Banwari then sent Godhu to Gneru's house. Godhu brought Sardari and Udmi and they all carried Gheru on a cot to his hause. 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.
8. 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 (sic) state at that time a d 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 tired 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. Godhu was thereafter sent to Gheru's he use and he callad Sardari and Udmi Gheru was taken on the cot from Banwari's baithak to his (Gheru's) house Jeep of one Shenarain was then sent for and on that jeep Gheru was taken first to Hmumangarh and thereafter to Ganganager Banwari also went in that jeep to Hmumangarh and wanted to lodge a report but he was told by Premaram Sarpanch that he and Gordhan would (sic) the report Banwari consequently (sic) his village Jhamber As regards his gun cartridges, Banwari stated that on the day following the occurence he gave his gun and two empty cartridges to the police when the same were demanded by the Sub Inspector.
9. Banwari also made a statement on oath in support of his version by coming into the witness box as DW 1 Shaonarain (DW 2) Cnaitan (DW 3) Saudagar Singh (DW 4) deposed that they had been given the version of the occurrence as given above by Banwari accused.
10. 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 (sic) of Banwari Likewise, the trial judge rejected the prosecution enidence that the two accused had told Sardari immediately after that occurrence that they had made a mistake. The learned judge, however, (sic) reliance upon the evidence regarding the deceased having made dyina declarations in the presence of Sardari, Udmi, Premaram and Gordhan PWs. Reliance was also (sic) open dying declaration Ex?. 28 of the deceased recorded by Shri Ghopra, Sub Divisional Magistrate It was. however, observed that only 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 hot 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.
11. 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
12. 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 Gneru. The (sic) wounds were in the abdomal cavity, while the lacerated wounds were on the anterolateral aspect of the right wrist jointed the medical side of palmer aspect of right hand. Stomach, inesentery, small intestinee. 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 we accused whe fired shots on the (sic) as a result of which he died. As against that, Godhu accused has deneed his parucipation in the occurrence while the plea of Banwari is that it was he along who fired both the shots on the deceased though, according to him, he did (sic) exercise of the right of private defence.
13 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 (sic). The third dving 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 appratsement of that evidence by the trial court and the High Court
14. Mr. Mulla on behalf of the appellants has a gued that no reliance should be placed upon the dying declarations of he 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. 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 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.
15. 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 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 the accused under Section 364 Indian Penal Code would only be, 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.
16. 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 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 caurton. There may be cases where in 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 severe the two parts. In such an event the court would well be justified in rejecting the whole of the declaration There may, however, be other cases where in the two parts of the 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 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,
17. So far as Banwari accused is concerned, we find that the part of statement of Gheru deceased in his dying declaratons that Banwari accused bad shot at is corroborated by the statement of Banwari himself because this accused admits having injured Gheru deceased by firing at him. The above part of the dying declaration is (sic) from the other part regarding the deceased having been forcibly taken (sic) the baithak of Banwari and the truth of former part does not (sic) 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 this 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 High Court have 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,
18. Coming to the cafe of Godhu accused we find that there is no corroboration of the st tement of Gheru deceased in his dying declaration that Godhu (sic) 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 evidence 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 und Udmi came there.
19. 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 declarations of Gheru deceased in this case.
20. 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 a'one 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 that the case against Godhu for the offence of murdering Gheru deceased is nor free from reasonable doubt. He would in the circumstances be entitled to the benefit thereof.
21. 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.
22. 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.