M. HIDAYATULLAH, C.J.
1. Nidhan Singh son of Sher Singh has been convicted on two counts under Section 302 IPC for the murders of Gurnam Singh and Gurmel Singh on June 6, 1967. He was tried originally with two others, who were acquitted by the Additional Sessions Judge, Ganganagar. Nidhan Singh was sentenced to death and the sentence has been confirmed by the High Court while dismissing his appeal against the conviction and sentence. He now appeals to this Court by special leave.
2. Nidhan Singh was residing in Village Arayan within the circle of Police Station Kesharisinghpur. He had a field bearing Sq. No. 26 while Gurnam Singh and Gurmel Singh had the adjacent Sq. Field No. 25. Relations between Nidhan Singh and his brother Mastan Singh (one of the acquitted accused) on the one hand and Gurnam Singh and Gurmel Singh on the other were strained on account of disputes over watercourse and Keeker trees.
3. The prosecution case is that on June 6, 1967, Gurnam Singh and Gurmel Singh had gone to a neighbouring village and returned in the evening at about 6.30 p.m. They were residing at their Dhani and from there Gurmel Singh directed Gurnam Singh and his son Gurbachan Singh to go to the house of one Mirab to enquire about the turn of water from the water course. After meeting Mirab, Gurnam Singh and Gurbachan Singh returned to their Dhani and had to pass on the way to the house of Nidhan Singh and Mastan Singh. At that time Gurnam Singh coughed in a challenging tone which was heard by Nidhan Singh. Nidhan Singh was then with one Mehar Singh (other acquitted accused), his brother Mastan Singh and another Mastan Singh (PW 1). Nidhan Singh and these persons thereupon decided to beat Gurnam Singh and coming out of the back door of the house waylaid him. Nidhan Singh snatched the Lathi from the hand of Gurbachan Singh and began belabouring Gurnam Singh. Gurbachan Singh raised an outcry and Nidhan Singh chased him but he managed to escape. He went to his uncle Gurmel Singh, who was at the Dhani with his son Kashmir Singh (PW 2). In the mean time Nidhan Singh and others caught hold of Gurnam Singh and brought him to the house of Nidhan Singh. Nidhan Singh told his companions that if Gurnam Singh was not killed he would take revenge and kill them all the next day. Gurnam Singh was then stretched on the ground and Mehar Singh sat on his belly. Mastan Singh (PW 1) caught his legs. Mastan Singh (brother of Nidhan Singh) then brought a spade from inside the house and Nidhan Singh struck several blows on the neck of Gurnam Singh severing the head from the trunk. After this deed Nidhan Singh said that Gurbachan Singh would go to his Dhani and report and that Gurmel Singh was certain to come to enquire what had happened to his brother. Nidhan Singh then took a sword and hid himself near the main gate while the other persons sat down behind the wall in the courtyard. As anticipated, on being told by Gurbachan Singh, Gurmel Singh and his son proceeded to the house of Nidhan Singh. Gurmel Singh carried with him a 12 bore gun while Kashmir Singh, his son, who accompanied him had no weapon. As soon as Gurmel Singh entered the gate, Nidhan Singh pounced on him and struck with his sword. On receiving the blow the gun fell down and Nidhan Singh was able to continue to strike him with the sword till his head was almost severed from the trunk. After the conclusion of this dastardly deed Mehar Singh suggested that something should be done to make out a case for their protection. He then took the gun and fired one shot in the air. Taking two cartridges from the tuck of the Tahmad of Gurmel Singh he loaded the gun again and fired at a heifer and injured her. He then reloaded the gun and left it lying near the body of Gurmel Singh. On the suggestion of Mehar Singh his unlicensed pistol and some opium were left near the dead body of Gurmel Singh. Mastan Singh (PW 1) thereafter left the house and went to the house of one Inder Das (Inder Ram DW 1) where he spent the night and left the next morning for his own village. Nidhan Singh went with his sword to the house of Harnam Singh, Sarpanch (PW 5) and informed him about the occurrence. His case was that he was seated in his house with his parents, his wife and the wife of his brother when Gurnam Singh and Gurmel Singh, who were drunk, entered his house. Gurnam Singh had a lathi while Gurmel Singh was armed with a 12 bore gun. They started abusing him and Gurnam Singh then attempted to attack him with a lathi which missed the mark, as he stepped back. Gurmel Singh then fired at him with the gun but missed. Fearing injury or death to himself Nidhan Singh picked up a sword and started inflicting blows on the person of Gurnam Singh. His father Sher Singh also inflicted 5 or 7 blows on the body of Gurnam Singh. Gurmel Singh fired a second shot which again missed and hit the heifer. Gurmel Singh was loading his gun again but before he could fire Nidhan Singh struck him with this sword several times and he fell down. Both Gurnam Singh and Gurmel Singh died as a result of injuries received from the sword which was wielded by Nidhan Singh in his self-defence. This story of defence as given here was adhered to by Nidhan Singh at his trial. In view of the statement of Nidhan Singh that he was responsible for the injuries on the person of Gurnam Singh and Gurmel Singh it is not necessary to refer to the evidence in detail. It may, however, be pointed out that Gurnam Singh and Gurmel Singh do not appear to have caused any injury to Nidhan Singh or to any of the persons present at his house. The attack on Nidhan Singh and his companions by Gurnam Singh and Gurmel Singh must, therefore, be considered to have been completely ineffective.
4. The only question in this case, therefore, is whether the accused Nidhan Singh has made out a case of self-defence, as suggested by him in the arguments before the High Court. The High Court and the court below have held that there was no right of self-defence because the incident took place not as stated by Nidhan Singh but as deposed to by the witnesses.
5. There are three eyewitnesses of the occurrence. In support of the prosecution case pardon was tendered to Mastan Singh (PW 1) and he was given conditional pardon by the District Magistrate and examined as an approver in this case. The details of the story, as set out by us here, came from his deposition. The other two eyewitnesses were Gurbachan Singh, s/o Gurnam Singh and Kashmir Singh, s/o Gurmel Singh. In dealing with this case the learned Additional Sessions Judge rejected the testimony of Gurbachan Singh and Kashmir Singh. The Additional Sessions Judge also did not believe the story narrated by the approver Mastan Singh (PW 1).
6. We were, however, able to see the record of the case in its full and having read the evidence for ourselves we are satisfied that the conclusion of the High Court that there was no right of private defence and that the incident took substantially as deposed by the approver, is correct. The learned Additional Sessions Judge did not accept the evidence of the two sons of Gurmel Singh and Gurnam Singh, although these witnesses were close neighbours of Nidhan Singh and had gone in the company of their respective parents to his house. The main reason given by the Additional Sessions Judge for rejecting the testimony of these two witnesses was that they were interested; they took no action to report the matter to the villagers and kept aloof from the investigation. In the case of Gurbachan Singh, the learned Additional Sessions Judge thought that he should have gone to the house of the villagers, rather than to the Dhani, to inform them about the beating of his father. With regard to Kashmir Singh, son of Gurmel Singh, the learned Additional Sessions Judge found that being a member of the armed forces, he should have taken action but he left the village without staying on to see what had happened. The approver's testimony was also rejected by the learned Additional Sessions Judge on the ground that there were many contradictions between it and his earlier statement to the police and further because his presence at the house of Nidhan Singh was itself not sufficiently made out.
7. The High Court in the appeal before it went into the evidence afresh. It differed from the learned Additional Sessions Judge and held that the statement of the approver Mastan Singh (PW 1) was acceptable. The High Court also accepted the evidence of Gurbachan Singh pointing out, however, that he had not seen the actual murder but had seen the early incident when his father Gurnam Singh was being beaten by Nidhan Singh and others. The High Court did not accept the evidence of Kashmir Singh for the reasons already stated by us.
8. The learned Additional Sessions Judge convicted Nidhan Singh on circumstantial evidence holding the plea of self-defence not proved. According to the Additional Sessions Judge Nidhan Singh admitted the main facts of enmity and of his having caused the injuries to the two deceased persons. His connection with the offence was further proved by his statement to the Sarpanch and also by his having produced the sword stained with human blood and because his clothes were also stained with human blood. The High Court accepted this line of approach but added thereto the acceptance of the evidence of Mastan Singh (PW 1) and the evidence of Gurbachan Singh insofar as it went.
9. In the appeal before us Mr Chari argued first for an acquittal and then for a reduction of the sentence. In arguing for acquittal he contended that the Sessions Judge who had an opportunity of seeing the witnesses in the witness box had rejected the testimony of the approver and the two eyewitnesses Gurbachan Singh and Kashmir Singh. He, therefore, contended that there was practically no evidence in the case and the circumstantial evidence could not be acted upon because it required acceptance of the statement of the appellant Nidhan Singh, which statement if taken in its entirety was sufficient to create a doubt whether the offence was committed in self-defence or in wantonness. He also complained that the High Court had gone out of its way to accept the testimony of witnesses already rejected by the Sessions Judge. In support of his case for mitigation in the sentence Mr Chari relied upon the fact that there was probably room for holding that Gurnam Singh and Gurmel Singh had gone prepared to attack Nidhan Singh at his house and, therefore, there was every right to defend oneself against an act which might involve loss of life or of a limb. Mr Chari therefore contended that in these circumstances the penalty of death was not merited and the sentence deserved to be reduced.
10. The prosecution and the defence versions agree in many respects. They agree in establishing that it was Nidhan Singh who caused the fatal injuries to the two brothers Gurnam Singh and Gurmel Singh. The method of causing injuries is proved at least in case of Gurmel Singh where the injuries were all caused with a sword or such sharp instrument. As regards the injuries of Gurnam Singh it was stated that these injuries were said to be caused with a spade and could not have been so caused without hurting the man who was sitting astride Gurnam Singh. On the whole therefore, it was submitted, the conviction could not be supported on the evidence as it stood.
11. Both the Courts have agreed that the appellant was guilty. They have given reasons from different angles. The Sessions Judge viewed it as a case of circumstantial evidence only having rejected the three eyewitnesses in the case. The High Court stated the law of accomplice evidence accurately and then found the facts proved as alleged by the prosecution. Therefore the conviction of the present appellant was confirmed along with the death sentence.
12. In our opinion the High Court was right in accepting the evidence of Mastan Singh, the approver. This man is not the resident of this village. He had gone to Village Arayan to get the horoscope of his son prepared by one Inder Ram (DW 1) (wrongly called Inder Das in his deposition). According to him Inder Ram told him that the horoscope was ready buil it was kept under lock and key by Inder Ram's wife. He was asked to stay till evening and got the horoscope when Inder Ram's wife returned home. As he lived 16 to 17 miles away he was advised not to undertake the journey. He tethered his camel with a view to spending the night at Village Arayan. He had known Nidhan Singh and Mastan Singh from before and therefore proceeded to their houses. There he met in addition to Nidhan Singh and his brother Mastan Singh one Mehar Singh. Nidhan Singh served liquor and every one got drunk: Just as they were sitting and drinking, Gurnam Singh passed with his son and made a challenging sound. They thereupon decided to beat Gurnam Singh and brought him to their house as stated already and Nidhan Singh severed his head with a few strokes from a spade. Then followed the visit of Gurmel Singh who came armed with a gun but was routed in a surprise attack by Nidhan Singh with a sword. The second murder then followed.
13. We have, therefore, to see whether the two brothers Gurnam Singh and Gurmel Singh had gone to the house of Nidhan Singh to pick a quarrel or whether the incident took place as deposed to by the approver. Now it is on record that Gurmel Singh and Gurnam Singh, both had guns and if these two had gone to fight with Nidhan Singh and his brother Mastan Singh, the other gun would have been taken. Further the evidence of Mastan Singh, approver was corroborated by the finding of the injury on the heifer. We do not think that Gurnam Singh or Gurmel Singh would have been such bad marksmen as to have missed Nidhan Singh twice at such close mange when they were firing not a bullet but a shot cartridge. The evidence therefore is clear that the incident took place in a manner different from that stated by Nidhan Singh in his version to the Sarpanch. It is no doubt true that Mastan Singh, the approver, was only a chance visitor at the house of Nidhan Singh and had gone there only to meet his former acquaintance. Even if he drank in the company of Nidhan Singh and others it is surprising that he should have continued to give assistance to them when they were and to commit a double murder. However, there is no knowing how far a man who is drunk may go. The only doubt cast upon the evidence of Mastan Singh is because Inder Ram came forward as a defence witness and stated that he did not know how to cast horoscope and that Mastan Singh had not visited him that day for the horoscope of his son. We have to decide as to which of the two witnesses is speaking the truth, Mastan Singh, the approver or Inder Ram. After reading the evidence of both we are satisfied that the version given by Mastan Singh is believable. It would be rather a round about way of securing an approver from another village to depose to the murders in Village Arayan. The story which was narrated by Mastan Singh, approver, is a long one and it is difficult for any one to concoct such a story and put it in the mouth of a person who was not at all concerned with the incident. The High Court was, therefore, right in disagreeing from the conclusion of the learned Additional Sessions Judge and in accepting the evidence of the approver. We are also satisfied that Gurbachan Singh had seen the incident in its early stages. The arrival of Gurmel Singh with the gun was very cleverly anticipated by Nidhan Singh and his companions and the description of the surprise attack bears some corroboration from the medical report as the right hand of Gurmel Singh was found severely cut and could therefore have led to the loss of the gun before it could be used. It is probable that Kashmir Singh also was a truthful witness and kept away from this incident from fear of becoming a witness because of his position in the military. However, as he has not been believed by both the courts we say nothing about him.
14. Therefore between the two versions as to how Gurnam Singh and Gurmel Singh met their death we are in agreement with the High Court that the version of the accused about his self-defence must be rejected as falsely taken to avoid the consequences of his own acts. His production of bloodstained sword and his blood-stained clothes lend corroboration to the statement of the approver in regard to himself. On the whole, therefore, the case is amply proved against Nidhan Singh. Since he was the main executioner of the two unfortunate brothers and there are no circumstances which we can take into account in reducing the sentence, we accept the sentence of death passed by the Sessions Judge and confirmed by the High Court.
15. The appeal therefore fails and will be dismissed.