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. 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. 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 parcels in the luggage van and to see that nothing untoward happened at the platform. Thus, it is clear, that during the time that the incident took place, viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant, as it is not only when the train is in motion that a Guard is on duty, but also while the train is standing at the platform. We are, therefore, of the opinion that the appellant has wilfully created obstruction in the discharge of the public duty by Hukam Chand as a Guard. 7. Rules 93 to 103 of the Rules framed under certain sections of the Indian Railways Act, 1890, deal with the attendance., discipline and equipment of Staff Working Trains. In Rule 95, it is stated that the Guard shall be in charge of the train in all matters affecting stopping or movement of the train for traffic purposes. It is, therefore, clear that Hukam Chand was on duty as a Guard right upto the time when he was to be the Guard of the train? and the act of the appellant amounted to willfully creating obstruction in the discharge of the public duty by Hukam Chand. The appellant was, therefore, rightly convicted under S. 121 of the Indian Railways Act. 8. The appeal is accordingly dismissed. RAGHUBAR DAYAL, J. : 9. I am of opinion that the appellant is not guilty of the offence under S. 121 of the Indian Railways Act, but is guilty of the offence under S. 506 I.P.C. 10. The finding of fact about the appellant s conduct at the time cannot be challenged before us in this appeal by special leave. RAGHUBAR DAYAL, J. : 9. I am of opinion that the appellant is not guilty of the offence under S. 121 of the Indian Railways Act, but is guilty of the offence under S. 506 I.P.C. 10. The finding of fact about the appellant s conduct at the time cannot be challenged before us in this appeal by special leave. The only question to determine is whether he, by his conduct, committed an offence under S. 121*a of the Act which reads: *a. Section 121 quoted here by his Lordship is as it was prior to its amendment by Act 13 of 1959.-Ed. "If a person wilfully obstructs or impedes any railway servant in the discharge of his duty he shall be punished with fine winch may extend to one hundred rupees." 11. To establish the offence it is necessary to prove that the appellant acted wilfully and that his wilful action obstructed or impeded Hukam Chand in the discharge of his duty. The expression in the discharge of his duty is not equivalent to the expression when on duty . The obstruction or impediment, caused to the railway servant in the discharge of his duty, should result in an obstruction or impediment in the execution of the duty he was performing at the time. There is nothing on the record to indicate what Hukam Chand was doing at the time and, consequently, there is nothing on the record to show that what he was doing at the time amounted to his discharging some duty as a guard. The fact that he was on the platform about 40 minutes before the departure of the train does not necessarily lead to the inference that he must have been discharging some duty which he had to perform as a guard of that train. 12. In this connection the Magistrate stated: ".......there is not the least doubt that his conduct amounted to interference with the duties of the guard who was ready to go with the train and much of his time was wasted in writing complaints." The observation is based not on any findings, both with regard to the duties which were interfered with and with regard to the time taken in writing complaints. The report which Hukam Chand submitted to the station master is a brief one. It does not even give the time of the incident. The report which Hukam Chand submitted to the station master is a brief one. It does not even give the time of the incident. It could not have taken long. The learned Sessions Judge said in his judgment. "So far as the question of obstruction is concerned it may be noted that Sri Hukam Chand was on duty as a Guard on train 20 down, which was then standing at the platform. As a Guard he had to discharge multifarious duties at a time while the train was standing at the platform e.g., he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform. Thus during the time that the incident took place viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant." Again, there is no reference to any particular duty which Hukam Chand was performing at the time. There was, according to Hukam Chand s deposition, a luggage guard with the train. Ram Lakhan Pandey was the l For Citation : AIR 1963 SC 1511 = 1963(2) Cri. LJ 408 = 1964(2) SCR 61 = 1964(1) SCJ 377