JUDGMENT Accused 1 and 2 in Sessions Case No. 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, Indian Penal Code. Deceased Kuttan is a brother of accused 1 to 3. Their mother Chinna executed a settlement deed Exhibit 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 become strained. On the date of the incident, namely, 14th December, 1961, the third accused had some cadjan leaves cut from some coconut trees near the house of the second accused which belonged to P.W.12. P.W.12 came and objected and the cadjan leaves so cut were entrusted to the deceased Kuttan who had then removed to his 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 other 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 Lakshmi 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 his cot in the out-house. The third accused came to the house toremove them. A tussle ensued 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 raised an alarm and hearing 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 a scuffle. The first accused had an axe hand 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.1. Sukumaran and the deceased engaged themselves in a scuffle. The first accused had an axe hand 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.1. The third accused called out that Kuttan and his wife P.W.1 should be attacked. The first accused thereupon beat P.W.1, Sukumaran fisted her and then turned towards, Kuttan. To escape from the clutches Kuttan got inside the house. Accused 1, 2 and Sukumaran attempted to get into the house, whereupon Kuttan escaped and ran eastwards. Accused 1, 2 and Sukumaran chased him. While running the second 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 P.W-2 reached the place. He was beaten by the first accused. P.W.1 was then seen coming and they pursued her and when she got into the verandah of P.W.5's shop, she was caught and accused 1 and 2 beat her. After the incident Kuttan was taken to the verandah of his house from where he succumbed to his injuries. Immediately P.W.1 proceeded to Kattakkada Police Station and lodged the first information statement Exhibit P-1 before the Sub-Inspector of Police, P.W.15. A case was registered. The next day P.W.15 held the inquest. The third accused and her son Sukumaran also went to the Police Station and Exhibit 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, Criminal Procedure Code, and committed the case to the Sessions Court. It was tried as Sessions Case No. 16 of 1962 and P.W-1 who was the accused in the case was acquitted. 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. 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. The fact that deceased Kuttan sustained serious injuries on that day and died of the injuries is amply proved and is not disputed. P.W.3 the doctor who conducted the autopsy noticed 12 ante-mortem injuries on the deceased. The first injury was a lacorated would 4“x ½”bone deep on the left perital region of the skull. There was a crack of the bone underneath and death was due to corneas a result of compression of the brain due to the effusion of blood into the cranial cavity. P.W.4, Dr. Mathew Zacharia, another doctor has proved the wound certificate of P.W.1. It is Exhibit P-5. She was admitted as an inpatient on 14th December, 1961 and discharged on 22nd December, 1961. Exhibit P-7 is the wound certificate of P.W.2. The incident which was the subject-matter of the charge consists of three phases: (1) What took place at the courtyard of the deceased; (2) The incident that took place when accused 1, 2 and Sukumaran pursued the deceased and Sukumaran beat the accused on the head; and (3) the incident that took place at the shop of P.W.5 when P.W.1 is alleged to have been beaten by accused 1 and 2. As far as the first incident is concerned there was only the evidence of P.Ws.1 and 2. The learned Sessions Judge did not place any reliance on their 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 P.Ws.5, 6 and 8 and found that Kuttari was chased by accused 1, 2 and Sukumaran and Sukumaran inflicted the fatel blow. He however rejected the case against the first accused that he beat P.W.2 and acquitted him of that specific charge. The third incident, namely, accused 1 and 2 beating P.W.1 in front of the shop of P.W.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. The third incident, namely, accused 1 and 2 beating P.W.1 in front of the shop of P.W.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 P.Ws.5, 6 and 8 the learned Judge found the prosecution case of Kutan being chased by accused 1, 2 and Sukumaran to be true. Accused 1 and 2 had been charged for abetment under section 302 read with section 114, Indian Penal Code. The learned Judge found them both guilty under section 304 read with section 114 Indian Penal Code. The learned counsel for the appellants contend that even on the finding of the learned Judge the appellants are entitled to an acquittal quite apart from the question whether the evidence of P.Ws.5, 6 and 8 could with safety to accepted. It was pointed out that the evidence of these witnesses has, in fact, been disbelieved as far as the beating of the deceased's son by the first accused is concerned and the evidence of P.W. 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 second 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 of murder for which they have now been convicted. In fact the prosecution case was that accused 1, 2 and Sukumaran were abetted by the third accused to attack the deceased. It is also important to remember that the appellants were not charged for constructive liability under section 34, Indian Penal Code. 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 case within the purview of section 34, Indian Penal Code, unless the community of design is proved against him. It is no doubt true that in view of the provisions of section 32 , Indian Penal Code, an omission is included in an act. It is no doubt true that in view of the provisions of section 32 , Indian Penal Code, an omission is included in an act. but it is incumbent that such an omission must be an illegal omission and the onus lies on the prosecution to show that the omission which is being treated as an act, was either an offence or was prohibited by law or was one which furnished grounds for a civil action as required by section 43, Indian Penal Code, 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 male a person equally liable with the actor himself. Similarly I find that section 114 also cannot be applied in this case. In order to bring a case within section 114 , Indian Penal Code, 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 commission of the offence itself that the operation of section 114 would be attracted. Reference may be made to the decision in Rant Ranjan Ray v. Emperor1 which was followed in In re Vijayaranga Naidu2, Mian Gul v.Emperor3 and other cases. In an early case in Abbi Misser v. Lachrni Narain1 the law on the subject has been laid down;n 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.” 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 I and 2 and Sukumaran to attack the deceased but the third accused has been found not guilty by the learned Judge and acquitted. The learned Judge in para. 34 of the judgment has stated: “Thus the prosecution has dependable and reliable evidence, only as regards chasing of Kuttan 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 the commission of culpable homicide by Sukumaran. Therefore, accused 1 and 2 are guilty under section 304 , Part I, Indian Penal Code, read with section 114, Indian Penal Code. 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 do so proves abetment. The State has not chosen to file an appeal against the acquittal of the accused for the other offences and the learned State Prosecutor was not able to support the reasoning of the learned Judge in finding the appellant guilty of the offence under section 304 read with section 114, Indian Penal Code. I am not able to underastand how the learned Judge came to the conclusion that the offence is reduced to one under section 304, Indian Penal Code. I, therefore, allow the appeal setting aside the conviction and sentence passed on the appellant and direct that they be set at liberty. M.C.M.-----Appeal allowed.