Case Note & Summary
The appeal arose from the conviction of two accused, Godhu and Banwari, for the murder of Gheru and offences under the Arms Act. The incident occurred on September 21, 1969, in village Jhamber, district Sri Ganganagar. The prosecution alleged that the two accused forcibly took Gheru into Banwari's baithak and shot him, causing injuries that led to his death on September 24, 1969. The trial court convicted both accused under Section 302 of the Indian Penal Code and under Sections 25(1)(a) and 27 of the Arms Act, but acquitted them under Section 364 IPC, finding that the forcible taking was not proved. The Rajasthan High Court affirmed the convictions. The accused appealed to the Supreme Court by special leave. Banwari claimed self-defence, stating that the deceased entered his baithak in a drunken state with a Gandasi and attacked him, forcing him to fire. Godhu denied participation, claiming he only helped carry the deceased. The prosecution relied on multiple dying declarations made by the deceased to witnesses and a recorded dying declaration by a Magistrate, as well as recoveries of guns and cartridges at the instance of the accused. The trial court rejected the prosecution evidence on forcible taking and the alleged admission of mistake by the accused, but accepted the dying declarations regarding the shooting and the recoveries. The Supreme Court considered whether acquittal under Section 364 IPC affected the murder conviction, whether a dying declaration could be partly accepted, whether self-defence was rightly rejected, and whether the case against Godhu was proved beyond reasonable doubt. The Court held that acquittal under Section 364 only meant the prosecution could not rely on forcible taking evidence; murder could be proved independently. On dying declarations, the Court ruled that partial acceptance is permissible if the reliable part is corroborated. Here, Banwari's admission of firing corroborated the dying declaration's statement that he shot the deceased. The self-defence plea was rejected as unsupported. For Godhu, the Court found the evidence insufficient because his participation was tied to the disbelieved forcible taking part and lacked independent corroboration, giving him the benefit of doubt. The Supreme Court dismissed Banwari's appeal, upholding his conviction and sentence under Section 302 IPC and the Arms Act, but allowed Godhu's appeal and acquitted him. The Court directed that Godhu be set at liberty unless required in any other case.
Headnote
A) Criminal Law - Dying Declaration - Partial Acceptance - Indian Evidence Act, 1872, Section 32 - The Supreme Court held that if a part of a dying declaration is not proved to be correct, it does not necessarily result in rejection of the whole dying declaration. The court must apply caution, but if the unreliable part is severable and the reliable part is corroborated by other evidence, the court can act upon the reliable part. In this case, the part that Banwari shot the deceased was corroborated by Banwari's own admission of firing, making it acceptable despite rejection of the forcible taking part. Held that partial acceptance of a dying declaration is permissible when the relied portion is independently corroborated (Paras 1-8). B) Criminal Trial - Effect of Acquittal Under Section 364 IPC - Indian Penal Code, 1860, Sections 302, 364 - The court held that acquittal under Section 364 IPC only means the prosecution cannot rely on evidence that the deceased was forcibly taken inside the baithak by the accused. The murder charge can still be sustained if proved independently of that allegation. Here, Banwari's admission of firing and the corroborated dying declaration independently established murder, so the acquittal under Section 364 did not create a legal infirmity in the murder conviction. Held that acquittal under Section 364 IPC does not bar conviction under Section 302 IPC when murder is proved independently (Paras 1-8). C) Criminal Law - Right of Private Defence - Indian Penal Code, 1860, Sections 96-106 - Banwari claimed he fired in self-defence because the deceased entered his baithak in a drunken state with a Gandasi and attempted to attack him. The trial court and High Court rejected this plea, and the Supreme Court affirmed, finding that the prosecution evidence and dying declaration established that Banwari fired at the deceased without legal justification. Held that the plea of self-defence was rightly rejected on the facts (Paras 1-8). D) Criminal Law - Benefit of Doubt - Indian Penal Code, 1860, Section 302 - The case against Godhu rested primarily on the disbelieved part of the dying declaration regarding forcible taking, and there was no independent corroboration of his active participation in the shooting. The Supreme Court found that the case against Godhu was not free from reasonable doubt. Held that Godhu was entitled to the benefit of doubt and was acquitted (Paras 1-8).
Issue of Consideration
Whether acquittal under Section 364 IPC affects conviction under Section 302 IPC; whether a dying declaration can be partly accepted; whether self-defence plea was valid; whether case against Godhu proved beyond reasonable doubt.
Final Decision
The Supreme Court dismissed Banwari's appeal, upholding his conviction and sentence under Section 302 IPC and the Arms Act, but allowed Godhu's appeal and acquitted him. The Court directed that Godhu be set at liberty unless required in any other case.
Law Points
- Dying declaration can be partly accepted if corroborated
- Acquittal under Section 364 IPC does not bar conviction under Section 302 IPC if murder proved independently
- Self-defence plea rejected on facts
- Benefit of doubt to co-accused when evidence insufficient
