Judgment

RAMASWAMI, J. :- The appellant was convicted under Sections 302, 307, 325 and 427, Indian Penal Code and also under Section 126 of the Indian Railways Act by the Additional Sessions Judge of Sangli in Session Case No. 9 of 1967. The appellant was sentenced to death under Section 302, Indian Penal Code. No other sentence was awarded for the remaining offences. The appellant preferred an appeal to the Bombay High Court in Criminal Appeal No. 1116 of 1967 which was dismissed on the 17th November, 1967 and the sentence of death imposed on the appellant was affirmed. This appeal is brought by special leave from the judgment of the Bombay High Court.

2. The prosecution case arises out of the derailment of Poona-Wasco Express train at about 4.40 in the early morning of October 10, 1966. The derailment occurred on the Vaddi bridge which is beyond Miraj Station. As a result of this derailment, five bogies were capsized. Out of these five bogies, two went into the stream down below, two were on the slope and one on the track. In this incident ten persons died and a large number of other persons received grievous injuries. The charge against the appellant was that he had removed fish plates, nuts, bolts, etc., of the rail joint near Vaddi bridge No. 215 on Miraj Mahisal Railway track at Km. No. 743/9 and 10 between 4.05 a. m. and 4.50 a. m. in the early morning of October 10, 1966 with intent or knowledge that he was likely to endanger the safety of the persons travelling in the said train and he caused the Poona-Wasco express train No. 206 Dn. To be capsized at Vaddi and thereby committed murder knowingly causing deaths of 10 persons who were passengers in that train.

3. The appellant Abdul Razak Murtaja Dafedar was working at Miraj railway station as gangman in gang No. 13 of which Laxman Madar was the Mukadam or Gangmate and Bapu Sopana was the Keyman. The area under this gang was from Km. Nos. 741/3 to 747/5 covering a railway track of 4 miles or 6 km. Vaddi bridge falls within this area. Vaddi bridge is at 2 1/2 miles from the railway station of Miraj, towards Belgaum. Mhaisal gate is also towards Belgaum at 1 1/2 miles from the railway station on the way to Vaddi bridge. At Bhaisal gate is the quarter of Laxman Madar the gangmate. Near the quarter of Laxman is the tool box where the tools of the gang are kept under lock and key.

4. Vaddi bridge is the biggest bridge out of the seven bridges lying between Km. Nos. 743/9 to 747/5. The height of the bridge is about 30 to 40 . There are six big arches and two small arches on each side of the bridge. The bridge is of masonry stone. The case of the prosecution is that the appellant quarreled with Laxman who always found fault with him and did not spare him when he was absent from or late in attending duties. On two or three occasions Laxman had altercation with the appellant and Laxman had reported against him and Dastgir, a friend of the appellant. On October 9, 1966, an altercation took place between the appellant and Laxman. Laxman found the work of levelling and packing done by other gangman except the appellant satisfactory and so Laxman asked the appellant to correct the defect. The appellant got irritated and took exception to the remark of Laxman and rushed towards him with a pick axe saying that he would break his head. Laxman threatened to report the conduct of the appellant to the Permanent Way Inspector and went away towards the tool box. Laxman got a report written by Maruti about the incident and handed over the report to the Assistant Station Master at about 7 or 7.30 p. m. Train No. 204 was due to arrive and the Station Master was in a hurry and so he dispatched the complaint by free service way bill slip though his office boy to the under-guard of the incoming train, namely, 204 Dn. According to prosecution case Ramchand Sadre, P. W. 37, saw the appellant going on the track at 3 or 3.15 a.m. P. W. 37 was serving as a Sainik of the Railway Protection Force at Miraj