Madhavan Nair, J.
1. The petitioner is the 2nd accused in C.C. No. 18 of 1926 on the file of the Sub-divisional Magistrate, Trichinopoly His son, the 1st accused, was convicted under Section 326, Indian Penal Code, with having voluntarily caused grievous hurt with an aruval to P.W. 1. The petitioner was convicted under Sections 114 and 326, Indian Penal Code, with having abetted the 1st accused (the son) and being present at the occurrence. He was sentenced to rigorous imprisonment for four months. It appears from judgments of the Lower Courts that the part taken by the petitioner in the commission of the offence was only this, namely, that he desired his son to cut P.W. 1. In one part of the judgment of the Sessions Judge, the part played by the petitioner is thus described:
Appellant I (the son) cut him with an aruval at the instigation of appellant 2 (the petitioner).
2. There is no evidence that prior to this incident there was any conspiracy between the father and son to waylay P.W. 1 and cut him. The petitioner himself has not taken any other part in the offence. On these facts the Courts below convicted him under Sections 114 and 326, Indian Penal Code. It appears to me that the conviction cannot stand and should be set aside. To come within Section 114 of the Penal Code, the abetment must be complete apart from the presence of the abettor. The only abetment charged in this case required the presence of the abettor and as I have already observed there is no evidence of any conspiracy prior to the occurrence between the petitioner and his son. In these circumstances Section 114 cannot be invoked for convicting the petitioner reading with Section 326. This view of Section 114 was taken by the learned Judges of the Calcutta High Court in Ram Ranjan Roy v. Emperor I.L.R. (1914) C 422. In that case the facts were very similar to the facts of the present case except that the main charge there was one of murder. This decision has been followed by our High Court in Annavi, In Re: (1924) 21 LW 19. The same view of the law has been taken by a Bench of this Court in In re. Jogali Bhaigo Naiks 97 IndCas 952. In this view the conviction of the petitioner under Section 326 read with Section 114 must be set aside.
3. The petitioner was sentenced to undergo 4 months rigorous imprisonment of which I understand he has already undergone three months. I do not think, therefore, that it is necessary in the interests of Justice that he should be called upon to undergo a fresh trial. I set aside the conviction and sentence and acquit him. His bail bond will be cancelled.