BHARGAVA, J.—This is a reference by the learned Additional Sessions Judge, Churu recommending that the conviction of the accused namely Durgaprasad, Tilakraj, Dharamvir and Mahavir who are railway employees be set aside. Each of them has been sentenced to a fine of Rs. 25/- under sec. 120 of the Indian Railways Act by the First Class Railway Magistrate, Jodhpur.

2. The learned Additional Sessions Judge has made the recommendation on the ground that the prosecution evidence is discrepant and does not establish the guilt of the accused. The learned Judge after discussing the prosecution evidence says that it has been not proved beyond all manner of doubt that the accused applicants gave beating to Jhumarmal or abused him. The learned Railway Magistrate on the other hand has believed the statements of Jhumarmal and Ranjitsingh and held that it is proved from their evidence that all the accused persons abused and beat Jhumarmal. In his opinion the evidence of these two witnesses was clear, convincing and consistent.

3. In my opinion it is not necessary to go into the evidence in revision as the learned Magistrate has come to the finding that the evidence of Jhumarmal and Ranjitsingh proves that the accused had abused and beat Jhumarmal on the railway platform. It is true that Dungarmal and Moolchand who were cited as witnesses in the first information report did not support Jhumarmals statement in the court but the Prosecuting Inspector had requested for permission to cross-examine these witnesses and to contradict them with their previous statements recorded under section 162 of the Code of Criminal Procedure, but it was refused by the learned Railway Magistrate though under the law the Prosecuting Inspector was entitled to contradict these witnesses with their previous statements during investigation. The other reasons mentioned by the learned Judge for rejecting the evidence of Jhumarmal and Ranjitsingh also do no; appear to be sufficient to call for any interference in revision with the finding of the fact recorded by the learned Railway Magistrate. Ranjitsingh is an independent witness and his evidence does lend support to the statement of Jhumarmal. The inconsistency pointed out by the learned Judge is not such that the entire evidence of Jhumarmal may be rejected on its basis. The learned Judge further points out that it has not been proved what actual words were used by the accused persons and whether they amounted to abusive language or not. He has referred to Budha Singh and another vs. King Emperor, (1) in this connection. There is the categorical statement of Jhumarmal that he was abused in the name of his mother and sister. The evidence was enough to warrant a finding that the accused persons used abusive language. Apart from that the finding is that the accused persons also bet Jhumarmal on the railway platform. Nuisance ordinarily means that which annoys or hurts or that which is offensive. If persons indulge in the act of beating on a railway platform it is bound to cause annoyance to other persons who happen to be there at that time. The case would also come under clause (4) because it would amount to the committing of nuisance on the Rly. platform. For these reasons I do not consider it a fit case for interference with the finding of the Railway Magistrate. But a point of law which does not seem to have been raised before the courts below have been raised before this Court and that is that sec. 120 of the Indian Railways Act does not apply in the case of railway servants and as such the accused could not have been convicted under that section. Sec. 120 of Indian Railways Act runs as follows:—

"If a person in any railway carriage or upon any part of railway:—

(a) is in a state of intoxication, or

(b) Commits any nuisance or act of indecency, or uses obscene or abusive language, or

(c) wilfully and without lawful excuse interferes with the comfort of any passenger or extinguishes any lamp.

he shall be punishable with fine

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