- (1.) THIS is an appeal by Dukhi Singh who has been convicted by the learned Temporary Civil and sessions Judge of Allahabad under Section 302, I. P. C. and has been sentenced to death. Along with the appeal there is the usual reference by the learned I Temporary Civil and Sessions Judge for the confirmation of the sentence of death.
(2.) ON the night between the 28th and 29th of July, 1953, a mixed train, designated as Up Train no. 375, while going from Banaras Cantt. Station to Allahabad, stopped at Handia Khas railway station at 10. 59 p. m. On that train there was the Railway Protection Police consisting of Kashi singh Havildar Guard and three constables, Chingan Ram, Deomani Singh and Dukhi Singh the appellant. Deomani got down at Katka station for taking water and he had left his rifle together with the cartridges in the compartment which was meant for the R. P. P. The train left Katka station and Deomani could not catch it, with the result that he was left behind there.
(3.) AT Handia Khas Station Dukhi Singh noticed that a person by name Nanka, who was the servant of Karamat thekedar, was standing near a goods wagon under suspicious circumstances. Karamat thekedar held a contract for the collection of burning cinders, which he was to remove through the aid of his men from the railway track so that the sleepers on the railway track may not get burnt. There existed previous complaints of theft at Handia Khas station and there was information at the Thana that sugar bags were being tampered with from time to time at that station and in that connection one of the railway empoyees had been suspended. It was in that background that Dukhi Singh the appellant thought that the man whom he had found near the goods wagon was a thief. He arrested him and he took him to his compartment. In that process rawil, the engine driver, and one fireman Ram Manohar pleaded before him that the man was not a thief but was the agent of the thekedar and he should be let off. Dukhi Singh, however, did not agree and he took him to his compartment. The train started from Handia Khas station at 12 minutes past 11 in the night and when it had moved a few steps the arrested man jumped down from the train from its off side, namely, the left side. As soon as he escaped Dukhi Singh followed him with the rifle. Kashi Singh, the havildar Guard, fired a shot from a Very-light Pistol which he had with him. It produced temporarily a flood of light. Dukhi Singh chased the man. The man came from the front of the engine to the right side of the train. It was alleged that Dukhi Singh also came from the same direction and demanded as to where was the driver who had concealed the thief and he further held out that he would shoot him. Ram Manohar fireman got down from the train and was standing near the footboard of the engine. He is said to have asked Dukhi Singh as to why he would shoot the driver. It was contended that thereupon the appellant shot Ram Manohar with his rifle and Ram Manohar fell by the side of the foot-board wounded. It was further alleged that dukhi Singh aimed the rifle at the driver and the other fireman, but meanwhile Havildar Kashi singh came there, caught hold of the rifle and disarmed him. The Assistant Station Master and the Railway Guard meanwhile arrived. It was contended that Ram Manohar told the Guard that the R. P. P. constable had shot him and, on enquiry by the railway guard, the appellant told him that the driver had harboured the thief and had allowed him to escape and so he shot at Ram manohar fireman.;