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Dakhi Singh vs. The State (AIR 1955 All 379)

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.

… [Dying declaration and the post mortem report were stated]

9. The appellant's contention was that he had been given orders by the Havildar to shoot at the thief. That
contention finds some measure of support from the statement of Kashi Singh Havilciar, which was taken
by Thakur Ram Pratap Singh, the S. D. H., Handia, in a magisterial inquiry conducted by him. Kashi
Singh, however, stated in the Court of Sessions that although in the magisterial inquiry he had stated that
he had given orders to shoot, that statement was not a true statement and had been given by him under
entreaties by the appellant. Whether that order had been given by him or not does not assume any great
importance in the case, because in either event the appellant could not have been entitled to shoot dead
the thief or the fireman, In this connection, it would be necessary to refer to Section 46, Criminal P. C.
That section lays down that when a police officer arrests a person and such person forcibly resists the
endeavour to arrest him or attempts to evade the arrest, such police officer may use all means necessary
to effect the arrest; but this does not give a right to cause the death of the person unless he is accused of
an offence punishable with death or transportation for life.

In the present case the man who had been arrested was suspected to be a thief. He could not have been
accused of an offence punishable with death or with transportation for life. Consequently in effecting his
arrest after the escape the police officer had not had the right to cause his death. Reference in this
connection may also be made to Sections 76 and 79 … [Cited the provisions of Secs. 76 & 79] Under
these two sections, it was not open to the appellant to plead justification to the extent that he was entitled
to shoot the person dead, or by reason of a mistake to shoot the fireman dead, mistaking him to be a thief,

… [The statements of witnesses were narrated. Although, there were some inconsistencies in the
statements, the Court concluded as follows:]

13. From a consideration of the totality of. circumstances and the evidence in the case we are inclined to
think that after the arrested man had escaped from the running train the appellant pursued him with a view
to effect his re-arrest and, when he was not in a position to apprehend him, he fired at him and in that
process he hit the deceased fireman.

14. The question then would be what offence is made out. We have given our anxious thought to this
question and we are of opinion that the case would be covered by Exception 3 to Section 300 of the Indian
Penal Code. That Exception provides that culpable homicide is not murder if the offender, being a public
servant, or aiding a public servant acting for the advancement of public justice, exceeds the powers given
to him by law, and causes death by doing an act which he, in good faith, thinks to be lawful and necessary
for the due discharge of his duty as a public servant without ill-will towards the person whose death he
has caused. In the present case there was no ill-will between the appellant and the deceased. The appellant
was a public servant and his object was the advancement of public justice. He no doubt exceeded the
powers given to him by law, and he caused the death of the fireman by doing an act which he, in good
faith, believed to be lawful and necessary for the due discharge of his duty. In such circumstances the
offence that was committed was culpable homicide not amounting to murder punishable under
Section 304, Part II, Penal Code. Our conclusion, therefore, is that the appellant should have been
convicted under Section 304, Part II, instead of under Section 302, I. P. C.

15. For reasons stated above we allow the appeal to this extent that we set aside the conviction and
sentence of the appellant under Section 302 and convict him under Section 304, part II of the Indian Penal
Code and we sentence him to seven years' rigorous imprisonment which we consider adequate in the
circumstances of the case. The reference is rejected.