Judgment

IMAM, J. (for self and Subba Rao and Mudholkar, JJ.) Appellant Shyamlal was convicted by the Honorary Railway Bench Magistrate, Tundla Bench Agra, exercising first class powers, for an offence punishable under S. 121 of the Indian Railways Act and was sentenced to pay a fine of Rs. 60/, and in case of default in the payment of fine, to two months, rigorous imprisonment. His appeal to the II Additional Sessions Judge, Agra was dismissed and his conviction and sentence were confirmed. He then filed Revision No. 971 of 1961 in the High Court of Judicature at Allahabad, but the same was also rejected by Mr. Justice Brij Lal Gupta. Against the Judgment of the High Court, he obtained special leave from this Court and has filed this appeal.

2. The appellant Shyamlal was a pointsmen at Achhnera Railway Station. He bore grudge for some time against Hukam Chand Chaturvedi, P.W. 2. who was a Guard. The latter had taken in 1955 objection to a bed being carried on a passenger train by the appellant. Hukam Chand had also detected the appellant taking Railway line sleepers in a compartment, a portion of which was protruding out of the compartment, and made a report against the appellant, as , a result of which he was transferred. It is alleged that on November 30, 1959, Hukam Chand was on duty as a Guard on 20 Down train standing at the platform at Achhnera Railway Station at about 4-50 p.m. Suddenly the appellant came out from behind a compartment, armed with a scythe, and waiving it in his hand in a menacing way told Hukam Chand that he would cut his neck, and hurled abuses on him thereby causing an obstruction in the discharge of his duty.

3. P.W.2, Hukam Chand Chaturvedi, narrated the entire prosecution case and his statement was corroborated in full by P. W. 3. R. L .Pandey, P.W. 4 Chanda Ram, P.W. 8 Maharaj Dutt and P.W. 9 Nisar, who were independent witnesses, and there is nothing at all to show that they are inimical to the appellant. On a careful consideration of the evidence, the Additional Sessions Judge, Agra came to the conclusion that the prosecution have been successful in establishing its case and the appellant came out from behind a compartment abused Hukam Chand and waived the scythe towards him in a menacing way shouting that he would cut his neck with it.

4. Section 121 of the Indian Railways Act states:

"If a person wilfully obstructs or impedes any railway servant in the discharge of his duty, he shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".

5. Mr. D. S. Golani, counsel for the appellant, contended that as the prosecution had failed to prove as to what duty was being actually performed by Hukam Chand, the appellant cannot be convicted under S. 121 of the Indian Railways Act. In support of his contention the counsel relied on Radha Kishen v. Emperor, AIR 1923 Lah 71(1); Mohinder Singh v. The State, AIR 1953 SC 415; Jowand Mal v. Emperor, ILR 6 Lah 467: and In the matter of Baroda Kant Pramanick, 1 Cal WN 74 and Popatlal Bhaichand v. Emperor, ILR 54 Bom 326: He also relied upon Rules 113, 114, 115 and 137 of the Rules framed under the Indian Railways Act. The facts of all these cases were different from those of the present case and they can be easily distinguished. They have therefore no bearing on the decision of the present case.

6. From the facts stated above it is evident that the act alleged to have been done by the appellant was done by him, actuated by malice by reason of the fact that Hukam Chand had not spared him in the past for his lapses. It would follow, therefore, that this act was wilful within the meaning of S. 121 of the Indian Railways Act. Further, Hukam Chand was on duty as a guard on train 20 Down, which was then standing at the platform, and as a Guard he had to discharge multifarious duties at the time while the train was standing at the platform, e.g. he had to look after the loading of the parc