P. Govinda Menon, J.
1. Accused 1 and 2 in Sessions Case 15 of 1962 on the file of the Second Additional Sessions Judge of Trivandrum are the appellants. The appellants along with their sister the third accused who was acquitted stood charged with offences Under Sections 302, 452, 324, and 323 read with Section 114, IPC Deceased Kuttan is a brother of accused 1 to 3. Their mother Chinna executed a settlement deed Ext. P-16 in the name of the deceased in respect of 42 cents of property. It is the prosecution case that after the execution of the document the relationship between deceased Kuttan and his brothers became strained.
2. On the date of the incident, namely, 14-12-1961 the third accused had some cadjan leaves cut from some coconut trees near the house of the second accused which belonged to Pw. 12. Pw. 12 came and objected and the cadjan leaves so cut were entrusted to the deceased Kuttan who had them removed to bis courtyard and spread for drying. The stem portion of the fronds cut were split by his wife and they were also spread in the courtyard. The third accused cut more cadjan leaves from the property in the possession of the ether sharers. The wife of the first accused collected some sheaths etc., and removed them to the courtyard of her house. At about 3 p.m. the third accused Lekshmi came and collected the split cadjan stems from the courtyard of Kuttan's house. Seeing this Kuttan removed sheaths from the courtyard of the first accused's house and brought them to his house keeping it underneath the cot in the out-house. The third accused came to the house to remove them, A tussle ensiled between her and deceased Kuttan, in the course of which she sustained injuries. The third accused then took a chopper and there was a grappling between her and the deceased. Seeing this the wife of the first accused rased an alarm and tearing the cries the third accused's son Sukumaran and accused 1 and 2 rushed up to the house. Sukumaran and the deceased engaged themselves in scuffle. The is accused had an axe handla with him with which he dealt a blow on Kuttan, but the blow accidentally fell on the head of Sukumaran. Sukumaran got up and took an iron bar M.O.I. The third accused called out that Kuttan and his wife Pw. I Should be attacked.
The 1st accused thereupon beat Pw. i, Sukumaran fisted her and then turned towards Kuttan. To escape from the clutches Kuttan got inside the house. Accused i, 2 and Sukumaran attempted to get into the house, whereupon Kuttan escaped and ran eastwards. Accused i, 2 and Sukumaran chased him. While running the 2nd accused threw the spade handle M. O. 2 which hit behind Kuttan's left knee and when he was about to fall down Sukumaran approached and struck a heavy blow on the head of Kuttan with the iron rod. Kuttan's son Pw. z reached the place. He was beaten by the 1st accused, Pw. i was then seen coming and they pursued her and when she got into the verandah of Pw. 5's shop, she was caught: and accused 1 and 2 beat her.
3. After the incident Kuttan was taken to the Verandah of his house from where he succumbed to his injuries. Immediately Pw. 1 proceeded to Kattakkada Police Station and lodged the first information statement Ext. P-i before the Sub-Inspector of Police Pw. 15. A case was registered. The next day Pw. 15 held the inquest. The third accused and her son Sukumaran also went to the police station and Ext. P-18 is the F.I.R. in the counter complaint. Both the cases were investigated together. On their case being referred by the police, Sukumaran filed a private complaint. As it was a counter case the Sub Magistrate proceeded Under Section 208. Crl. P. C. and committed the case to the Sessions Court. It was tried as Sessions Case 16 of 1962 and Pw. 1 who was the accused in the case was acquitted.
4. When questioned on the evidence accused 1 and 2 denied participation in the occurrence. They pleaded that they were not present on that day and had gone to Kallippattu and they heard about it only when they returned at night. The third accused would have it that their complaint is true and the incident took place in the courtyard of the deceased's house.
5. The fact that deceased Kuttan sustained serious injuries on that day and died of the injuries is amply proved and is not disputed. Pw. 3 the doctor who conducted the autopsy noticed 12 ante-mortem injuries on the deceased. The first injury was a lacerated wound 4' x 1/2' bone deep on the left parital itfjion of the skull. There was a. crack of the bone underneath and death was due to coma as a result of compression of the brain due to the effusion of blood into the carnial cavity. Pw. 4 Dr. Mathew Zacharia another doctor has proved the wound certificate of Pw. 1. It is Ext. P-5. She was admitted as an in-patient on 14-12-1961 and discharged on 22-12-1961. Ext. P-7 is the wound certificate of Pw. 3.
6. The incident which was the subject-matter of the charge consists ot three phases: (r) What took place at the courtyard of the deceased; (2) the incident that took place when accused 1, 2 and Sukjimaran pursued the deceased and Sukumamn beat the accused on the head; and (1) the incident that took place at the shop of Pw. 5 when Pw. 1 is alleged to have been beaten by accused 1 and 2.
As fax as tile first incident is concerned there was pnly the evidence of Pws, i and s. The learned Sessions Judge did not place any reliance on thbir evidence, and it was found that the first incident alleged by the prosecution had not been proved. The learned Judge relied on the evidence of Pws. 5, 6 and 8 and found that Kuttarj was chasec by accused 1, 2 and Sukumaran and Suku-maranl inflicted the fatal blow. He however rejected the case against the 1st accused that ha beat pw. 2 and acquitted him of that specific ehargej. The third incident, namely, accused 1 and 2; beating Pw. 1 in front of the shop of Pw. 5 was also found against and accused 1 and 2 were acquitted of the offence. The learned Judge found the charge of abetment against the third accused not proved and acquitted her. On the evidence of Pw. 5, 6 and 8 the learned Tudge found the prosecution case of Kuttan being chased by accused 1, 2 afid Sukumaran to be true. Accused I and 2 had been charged for abetment Under Section 302 read with Section 114, IPC The learned Judge found them both guilty Under Section 304 read with Section 114, IPC
7. The learned Counsel for the appellants contend that even on the finding of the learned Judge I the appellants are entitled to an acquittal quite iapart from the question whether the evidence of Pws. g, 6 and 8 could with safety be accepted. It was pointed out that the evidence of these witnesses has, in fact, been disbelieved as far las the beating of the deceased's son by the 1st aqcused is concerned and the evidence of Pw. 5; has been disbelieved as far as the third incident is concerned and it would not be safe to place reliance on any portion of Their testimony. It was further argued that even assuming that accused 1 and 2 had pursued the deceased and the seciond accused had thrown M.O. 2 axe handle against the deceased, there is no evidence that they had abetted Sukumaran in the commission of the offence j of murder for which thsy have now been convicted. In fact the prosecution case was that accused 1, 2 and Sukumaran wete abetted by the-3rd accused to attack the deceased. It is also important to remember that the appellants were not charged for constructive liability Under Section 34, IPC The mere presence of a person at the ; time of the commission of an offence by his confederates is not in itself sufficient to bring his casd within the purview of Section 34, IPC unless the community of design is proved against him. It is no doubt true that in view of the provisions of Section 32, I. P. C. ari omission is included in an at, but it is incumbent that such an omission mijist be an illegal omission and the onus lies on [the prosecution to show that the omission which being treated as an act, was either an offence or was prohibitsd by law or was one which furnished grounds for a civil action as required by Section 43, IPC which defines what 'illegal' means. An inaction which is not shown to be illegal would never amount to an act under the Indian Penal Code. It is an illegal inaction alone that can make a person equally liable with the actor himself.
8. Similarly I find that Section 114 also cannot be applied in this case. In order to bring a case j within, $. 114, IPC the abetment must be complete, apart from the presence of the abettor; in other words, the act of abetment must have taken place at a time prior to the actual commission of the offence and it is only when the abettor happens to be present at the time of the commissior of the offence itself, that the operation of Section 114 would be attracted.
Reference may be made to the decision in Ram Ranjan Roy v. Emperor ILR 42 Cal 422: AIR 1915 Cal 545 which was followed in In re Vijaya-ranga Naidu, ILK 51 Mad 263 : AIR 1927 Mad 1115; Mian Gul y. Emperor AIR 1932 Lah 483 and other cases. In an early case in Abhi Misser v. Lachmi Narain ILR 27 Cal 566, the law on the subject has been laid down in the following terms:
In order to bring a person within Section 114 of the Penal Code, it is 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.
9. As neither any community of intention nor any abetment prior to their presence at the spot has been established on the record against accused 1 and 2, it has to be found that they cannot be found guilty of the offence committed by Sukumaran by calling in aid Section 114 of the Penal Code. It has not been stated as to what was the act of abetment which might be imputed to these appellants prior to their presence at the time when Sukumaran beat and caused the death of Kuttan. The prosecution case was that it was the third accused who- abetted accused 1 and 2 and Sukumaran to attack the deceased but the third accused has been found not guilty by the learned Judge and acquitted.
10. The learned Judge in para 34 of the judgment has stated:
Thus, the prosecution has dependable and reliable evidence, only as regards chasing of Kuttaa by accused 1 and 2 and Sukumaran with arms etc., as found in para 29 above. I have already held that accused 1 and 2 have thereby abetted tho commission of culpable homicide by Sukumaran. Therefore, accused 1 and 2 are guilty Under Section 304 Part I, IPC read with Section 114, IPC I convict them accordingly.
How it would amount to abetting Sukumaran in the commission of the offence is not stated. It is not uncommon to implicate even persons standing by, when another is beaten or stabbed on the ground that they had a moral duty to intervene in preventing the beating and their failure to d0 so proves abetment. The State has not chosen t j file an appeal against the acquittal of the accused for the other offences and the learned State Prosecutor was not able to support the rea soning of the learned Judge in finding the appellants guilty of the offence Under Section 304 read witfi Section 114, IPC I am not able to understand how the learned Judge came to the conclusion that the offence is reduced to one Under Section 304 IPC
I, therefore, allow the appeal setting aside the conviction and sentence passed on the appellants and direct that they be set at liberty.