B. J. DIVAN, M. U. SHAH, J. ( 1 ) AS regards accused No. 2 Shankers evidence makes it clear that accused No. 2 facilitated the commission of the offence by accused No. 1 by catching hold of the arms of Chetan and thus accused No. 2 had aided accused No. 1 in bringing about the death of the deceased. The circumstances of the quarrel immediately preceding the infliction of the injuries on the deceased and further the fact that both accused Nos. 1 and 2 were armed with dangerous weapons like a `dharia and a `vansi clearly show that the intention of both was to inflict serious injuries on the deceased. Under the circumstances it is clear that accused No. 2 had abetted accused No. 1 in the commission of the offence of murder and this offence was committed in consequence of such abetment and therefore accused No. 2 had clearly committed the offence of abetment of murder punishable under sec. 302 read with sec. 109 of the Indian Penal Code. ( 2 ) AT this stage we must mention that the learned Additional Sessions Judge was in error when he framed the charge against accused No. 2. under sec. 302 read with sec. 114 Indian Penal Code and when he ultimately found accused No. 2 guilty of the offence punishable under sec. 302 read with sec. 114 Indian Penal Code. As pointed out by the Privy Concil in Barendra Kumar Ghosh v. Emperor A. I. R. 1925 P. C. 1 :-SEC. 114 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. Abetment does not in itself involve the actual commission of the crime abetted. It is a crime apart. The section is evidentiary not punitory. Because participation de facto may sometimes be obscure in detail it is established by the presumption juris et de jure that actual presence plus prior abetment can mean nothing else but participation. The presumption raised by sec. 114 brings the case within the ambit of sec. 34. THE learned Additional Sessions Judge was obviously in error when instead of framing the charge under sec. 302 read with sec. 109 he framed a charge under sec. 302 read with sec. The presumption raised by sec. 114 brings the case within the ambit of sec. 34. THE learned Additional Sessions Judge was obviously in error when instead of framing the charge under sec. 302 read with sec. 109 he framed a charge under sec. 302 read with sec. 114 I. P. Code against accused No. 2 and also found him guilty of that charge. There is no independent evidence that apart from accused No. 2 catching hold of the deceased there was any other crime of abetment either by conspiracy or by incitement before accused No. 1 dealt the `dharia blows to the deceased and therefore the elements of sec. 114 I. P. Code as explained by the Privy Council in Barendras case have not been established in the instant case. The only section which was applicacable to the facts of the case was sec. 109 I. P. Code. We have found in very many cases that overlooking these observations of the Privy Council in Barendras case many subordinate Courts frame charges under the substantive section read with sec. 114 when the appropriate section is the substantive section read with sec. 109 I. P. Code and it is for this purpose that we have discussed this aspect of the case in this judgment. We therefore alter the conviction of accused No. 2 from one under sec. 302 read with sec. 114 Indian Penal Code to one under sec. 302 read with sec. 109 Indian Penal Code but we retain the sentence passed by the learned Judge. .