Judgment H.K.Chaudhuri, J. 1. The learned Sessions Judge of Motihari has convicted appellant Molazim Kawari under Sec.302 of the Indian Penal Code for the murder of Bishun Prasad Chaudhuri and sentenced him to death. He also convicted him under Sec.326 of the Indian Penal Code for having caused grievous injury with a gun to Dina Nath Chaudhury, but no separate sentence was passed under that section. The other two appellants were convicted under Sec.302 read with Sec.34 of the Indian Penal Code for the murder of Bishun Prasad Chaudhury and sentenced to rigorous imprisonment for life. They were also convicted under Sec.326 read with Sec.34 of the Indian Penal Code in respect of the injury caused to Dinanath Choudhury, and sentenced to rigorous imprisonment for life each, but the learned Judge directed the two sentences to run concurrently, 2. Criminal Appeal No. 270 of 1960 is a regular appeal by all these convicted persons. Appellant Molazim Kawari also filed a separate appeal from Jail, which is Criminal Appeal No. 272 of 1960. These appeals and the reference made by the learned Sessions Judge have been heard together. 3. * * * 4. * * * 5. * * * 6. * * * 7. * * * 8. * * * 9. His Lordship after narrating the facts and discussing the evidence held that the charge under Sec.302, Penal Coda had been made out against Molazim Kawari. He then proceeded : The case of the other two appellants stands on a different footing. The learned Judge has convicted them by application of Sec.34. The circumstances relied upon by him for holding that the crime was committed by all the appellants in furtherance of a common intention may be summarised as follows: 1. These appellants assented to the principal accused opening fire, 2. They were aware of the presence of the gun in the Maehan, 3. They encouraged the principal accused by their presence. 4. The loading of the gun for the last two fires must have taken place in their presence but they did not stop firing. 5. They ran away together and remained absconding. 10. I fear I have rnd littl" siiccsc if appreciating the reasonings of the learned Judge. In my opinion, he has taken a wrong view as to the scope of Sec.34 of the Indian Penal Code. 5. They ran away together and remained absconding. 10. I fear I have rnd littl" siiccsc if appreciating the reasonings of the learned Judge. In my opinion, he has taken a wrong view as to the scope of Sec.34 of the Indian Penal Code. All that the evidence establishes is that on Molazim shouting that the persons who had come should be shot, these two appellants said "shoot them with the gun", Thereafter, although they continued to remain there until all the four shots had been fired, they themselves took no part in the actual crime. Their conduct even if this evidence is correct, can at best suggest that they abetted the principal offender under Sec.109 of the Indian Penal Code by encouraging him by words: They never went beyond this preliminary stage. They took no part in the actual crime. Abetment under the Penal Code no doubt involves complicity on the part of the abettor, but this is complicity at a point of time prior to the actual commission of the offence. Such abetment may be a separate and distinct offence, but it does not in itself involve the commission of the crime. It is worthy of note that even under Sec.114 of the Indian Penal Code where the offender is deemed in law to have committed the offence, he takes no actual part in the doing of the act. The circumstances under which Sec.34 applies have been laid down by the Supreme Court in the case of Shreekantiah Ramayya Munipalli V/s. State of Bombay, (S) -- . This was a case where a Judge in his direction to the Jury stated that though a person "may not be present when the offence is actually committed" and even if he remains "behind the screen" he can be convicted under Sec.34 provided it is proved that the offence was committed in furtherance of the common intention. This, their Lordships held, was wrong and then follow the following observations: ... for it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape. But he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. Then follow these important words: The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by Sec.109, and the stage of commission when the plans are put into effect and carried out. Sec.34 is concerned with the latter. Their Lordships further pointed out that the emphasis in Sec.34 is on the word "done", "When a criminal act is done by several persons...", it is essential that they joined in the actual doing of the act and not merely in planning its preparation. It is necessary to emphasise that in the present case although the two appellants were present at the time of the occurrence, the abetment also took place at almost the same time. As was pointed out by their Lordships of the Privy Council in the case of Barendra Kumar Ghosh V/s. Emperor. AIR 1925 PC 1, participation and joint action in the actual commission of crime are, in substance, matters which stand in antithesis to abetments or attempts. In the present case the abetment, if at all, came within the ambit of Section 109 of the Indian Penal Code, and did not involve in itself the commission of the crime. In the absence of participation, therefore, Sec.34 can have no application, 11. * * * 12. (His Lordship then concluded as follows after holding that the alternative charge of abetment against the appellants also was not established by the evidence, In the result, the appeal of Gulli Kawari and Ramzan Kawari is allowed. Their convictions and the sentences, imposed upon them are set aside. As to Molazira Kawari his conviction under Sec.302 as also under Sec.326 of the Indian Penal Code are upheld. I do not see any reason to interfere with the sentence imposed upon him under Sec.302 of the Indian Penal Code. Their convictions and the sentences, imposed upon them are set aside. As to Molazira Kawari his conviction under Sec.302 as also under Sec.326 of the Indian Penal Code are upheld. I do not see any reason to interfere with the sentence imposed upon him under Sec.302 of the Indian Penal Code. The reference made by the learned Sessions Judge so far as this appellant is concerned is accepted and his appeals are dismissed. Tarkeshwar Nath, J. 13 I agree.