1. We sec no reason for interference with the lower Court's findings of fact. The evidence against the second and eighth accused, appellants before us was, no doubt, given against the former only by first and third prosecution witnesses and against the latter only by first, third and fourth prosecution witnesses. We do not think that any sufficient reason of the nature of enmity or the like has been made out for rejecting this evidence. There was some delay in the giving of information to the authorities but that is an almost invariable feature of these cases and was probably inevitable in view of the state of the country. The dc-fence evidence did not assist the accused.
2. Accepting the finding of facts, there is no reason for interference with the conviction of an offence punishable under Section 143, Indian Penal Code. The objection at the conviction under Section 126, Indian Railways Act, is that there is no evidence in the case of either of these accused of his having himself done or taken any immediate part in any act specified by the Section. It is not possible to apply Section 149, Indian Penal Code, because the definition of 'offence' in Section 149 does not for the present purpose include offences under Special Acts. The learned Public Prosecutor has suggested the application of Section 34, Indian Penal Code, but the evidence does not, in our opinion, justify the conclusion that the criminal action question, the removal of rails, sleepers, etc., was done by several persons, including these accused. The part these accused played is, in fact, unspecified, and we think that, in order to justify the application of the section, evidence of some distinct act by the accused which can be regarded as part of the criminal act in question must be required.
3. Taking this view, we allow this appeal to the extent that we set aside the conviction of an offence punishable under Section 126 of the Indian Railways Act and, the sentence of seven years' rigorous imprisonment. The accused must, therefore, be released when they have served their sentence of six months' rigorous imprisonment for the offence punishable under Section 143, Indian Penal Code, and any sentence in default of payment of the fines which may be necessary.