Harish Chandra, J.
1. The applicants, Shiv Shankar and Chhotey Lal, have been convicted under Section 324 and Section 324 read with Section 109, Penal Code, and sentenced to two years' and one year's rigorous imprisonment respectively for the two offences.
2. The applicants as well as the complainant Rachhpal Singh are residents of Jasrana town in the district of Mainpuri. According to the prosecution the complainant had illicit connexion with the wife of one Mathura Prasad, who was also tried along with the applicants but was acquitted. The applicant Shiv Shankar was in the service of Mathura Prasad, and the other applicant Chhotey Lal is his (Shiv Shankar's) younger brother. Mathura Prasad had engaged Shiv Shankar in order to preventthe complainant from visiting his house, but Shiv Shankar also contracted intimacy with the wife of Mathura, Prasad and a sort of rivalry sprang up between the applicant Shiv Shankar and the complainant. On 18-11-1945, at about 5-30 in the evening the complainant went to the bazar and found Mathura Prasad and the two applicants standing, in front of the shop of one Beni Ram. One Chandan Singh was also sitting there and he ealled out to the complainant and asked him to settle his dispute with the applicant Shiv Shankar. The complainant said something and hot words were exchanged between him and Shiv Shankar. In the meanwhile Shiv Shankar pulled out a knife from his pocket and raised it to strike the complainant. Rachhpal Singh fled into the shop to save himself. He was followed by the applicants as well as Mathura Prasad. Chhotey Lal caught hold of the complainant by the waist while Shiv Shankar inflicted a number of injuries on his person with his knife. Mathura Prasad was said to have stood at the door of the shop in order to prevent the complainant from escaping. The learned Magistrate found that the evidence did not indicate that he (Mathura Prasad) had in fact taken any part in the assault upon the complainant, and accordingly acquitted him. But he accepted the prosecution case and found the applicant Shiv Shankar guilty under Section 324, and the other applicant Chhotey Lal guilty under Section 324 read with Section 109, Penal Code.
3. The appellate Court dismissed the appeal of the applicants and maintained their convictions and sentences.
4. It is argued on behalf of the applicants that the complainant was a badmash and that the applicants had merely punished him for his badmashi and the illicit connexion which he had with the wife of their master Mathura Prasad. But the prosecution case is somewhat different and the circumstances in which the assault was made upon the complainant do not in any way justify the conduct of the applicants.
5. Having considered the case my opinion is that there is no adequate reason why I should interfere with the findings of fact arrived at by the Courts below.
6. It is, however, argued that the conviction of Chhotey Lal under Section 324 read with Section 109, Penal-Code, is not legal inasmuch as he was never charged with the offence of abetting the assault said to have been committed by the applicant Shiv Shankar upon the complainant. In support of this view I have been referred to a number of cases. In Emperor v. Raghya Naghya ('24) 11 A.I.R. 1924 Bom. 432 it was held that a conviction for abetment of murder in that case could not stand as there had been no charge of abetment made against the accused person. Their Lordships referred to an earlier case in Reg. v. Chand Nur. ('74) 11 Bom. H.C.R. 240, in which their Lordships had said that it was not open to a Court to find a man guilty of the abetment of an offence on a charge of the offence itself. Their Lordships relied upon Section 238, Criminal P.C., according to which when a person is charged with an offence, he may be convicted of an attempt to commit such offence, although the attempt is not separately charged. They observed:
If the Legislature had intended to disagree with the decision to which we have just referred, it would have been enacted that when a person is charged with an offence he may be convicted of abetment of such offence, although abetment is not separately charged.
A similar view was expressed in Alimuddi Naskar v. Emperor : AIR1925Cal341 . There are other cases also cited before me in support of the same view. They are Hulas Chand v. Emperor : AIR1927Cal63 , Emperor v. Profulla Kumar A.I.R. 1923 Cal. 453 and Kishan Das v. Emperor ('29) 16 .
7. It is argued by the learned Deputy Government Advocate that although the Ramed Sessions-Judge has applied Section 109, Penal Code, to the case of Chhotey Lal, the proper section to apply would be Section 114, in view of the fact that Chhotey Lal was present at the time when the occurrence is said to have taken place. He points out that according to Section 114, when any abettor is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence and argues that a case in which Section 114, Penal Code, is applicable is a casa in which the accused is to be charged with the offence itself and not with the abetment thereof, for the abettor in such a case becomes the actual offender and, therefore, there is no illegality in Chhotey Lal having been convicted under Section 824 read with Section 114, Penal Code, although he had been charged under Section 307, Penal Code, only. But although a person in the circumstances stated in Section 114 is liable to be punished in the same way as a person found guilty of the substantive offence, I doubt if in a case covered by that section it is in fact enough to frame a charge as for the substantive offence without specifying the special circumstances which bring the case within the purview of Section 114.
8. Against this contention learned Counsel for the applicants argues that Section 114 is in fact not applicable to a case of this nature. He points-out that according to Section 114, whenever any person 'who if absent would be liable to be punished as an abettor', is present when the offence for which he would be punishable in consequence of the abetment is committed, he is to be deemed; to have committed such offence. He emphasizes the words 'who, if absent would be liable to be punished as an abettor'. In the present case, he points out, there is no evidence that Chhotey Lal had abetted the offence before the offence was committed. The alleged abetment was committed at the time when the offence was being: committed by the other applicant Shiv Shankar. His contention is that in the circumstances Section 114 would not apply. He relies upon a number of cases which he has cited before me. In Barendra Kumar v. Emperor their Lordships at p. 7 observed:
As to Section 114, it is a provision which is only brought into operation when circumstances amounting to abetment of a particular crime have first been proved, and then the presence of the accused at the commission of that crime is proved in addition.... Section 114 deals with the case where there has been the crime of J abetment, but where also there has been actual commission of the crime abetted and the abettor has been present thereat.
9. In another case in Abhi Misser v. lachmi Narain (1900) 27 Cal. 566, a similar view was expressed and it was held that in order to bring a person within the scope of Section 114, Penal Code, it was necessary first to make out the circumstances which constitute abetment, so that if absent, he would have been liable to be punished as an abettor, and then to show that he was also present when the offence was committed.
10. In In re Krishnasami naidu 14 A.I.R. 1927 Mad. 1115 it was held that in order to sustain a conviction under Section 114, Penal Code, the abetment must be complete, apart from the mere presence of the abettor.
11. I respectfully agree with the view expressed in these cases and, in my opinion, this is the correct interpretation of Section 114, Penal' Code, having regard to the language of that section. In this view of the matter the proper section to apply to the case of Chhotey Lal is Section 109 and not Section 114, Penal Code, and his conviction, therefore, for the abetment of an offence under Section 324, Penal Code, when he had not been charged with such abetment is, in my view, illegal. Having regard, however, to the fact that Chhotey Lal was not the principal offender and that he has already been in jail for a period of nearly two and a half months I do not think it proper to order a retrial.
12. I accordingly allow the application of Chhotey Lal, set aside his conviction and sentence and acquit him. He need not surrender to his bail and his bail bonds are discharged. The application of Shiv Shankar is dismissed.