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Case Number

App. No. 170 of 1924

Attorney(S)

Babu Probodh Chandra Chatterjee (for Babu Bankim Chandra Mukerjee) for the Accused, Appellant.
Mr. Khundkar, Officiating Deputy Legal Remembrancer, for the Crown.

Judges

Newbould
B.B Ghose, JJ.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appellant, Uma Dasi, and one Nabanidhar (Nabani) Mandal were committed for trial to the Sessions Judge of Birbhum on a charge relating to the death of Radha Raman Mandal. In the Sessions Court an additional charge was framed against Uma Dasi that she, on or about 30 August 1923 at Dechandra (P.S. Shapur), abetted the murder of Radha Raman Mandal by Nabanidhar Mandal, an offence alleged to be punishable under sections 302 and 109 of the Indian Penal Code.

The trial proceeded in two sittings: the first commenced on 26 November 1923 and ended 5 December 1923 when the jury was discharged; a fresh trial ran from 7 January to 17 January 1924. In the second trial a majority of jurors found Uma Dasi guilty under section 302/109 (seven guilty, two not guilty), and recommended mercy on the ground of youth. For Nabanidhar, jurors were divided (four guilty, five not guilty). The Sessions Judge accepted the majority verdict and convicted Uma Dasi under section 302/109 and sentenced her to transportation for life, while recording an acquittal on the charge under section 302. The Sessions Judge did not accept the majority acquittal of Nabanidhar and referred his case to the High Court under section 307, Cr.P.C.; that reference (No. 6 of 1924) was heard by a Divisional Bench and Nabanidhar was acquitted.

Legal Issues Presented

Whether the acquittal of the alleged principal (Nabanidhar Mandal) precludes the conviction of an accused charged only with abetment of that principal's commission of murder.
Whether the Sessions Judge misdirected the jury by failing to explain the points to be considered about abetment in circumstances where the principal might be acquitted, in light of authorities such as Raja Khan v. King-Emperor and English decisions on inconsistent jury verdicts.
Whether a retracted confession by the accused, which, if true, contains an assertion of compulsion by threats, was properly considered in relation to section 94, Indian Penal Code (plea of compulsion by threats) and whether that plea can operate to negate liability for abetment (section 109, IPC).

Arguments of the Parties

Appellant's Arguments (as stated in the opinion)

Because Nabanidhar was acquitted by the High Court, the appellant's conviction for abetting his commission of murder cannot stand; an abettor cannot be convicted of abetting an offence not committed by the principal.
The Sessions Judge misdirected the jury by failing to instruct them on the points they should consider with respect to abetment if they acquitted Nabanidhar.
Reliance was placed on Raja Khan v. King-Emperor to support the proposition that abetment falls if the principal offence is not substantiated.
The appellant also relied on the fact that she had made a statement (later retracted) which, if true, described her acting under threats — raising the defence under section 94, IPC — and thus could not support a conviction for abetment under section 109, IPC.

Prosecution / Respondent Arguments (as stated in the opinion)

The prosecution's primary case was that Nabanidhar murdered Radha Raman and that Uma Dasi abetted that murder; the circumstantial evidence (wounds, blood-stains in the house, dragging marks, etc.) strongly supported the conclusion that the murder occurred in the house and implicated the persons present.
The Deputy Legal Remembrancer urged the Court to disbelieve the part of the appellant's confession asserting compulsion and to accept that circumstantial evidence was sufficient to support the jury's verdict.
The opinion notes the prosecution would, on retrial, rely on the prosecution case that the confession was false and that circumstantial evidence established guilt (the opinion discusses limitations on trying this approach because of the appellant's acquittal on certain counts).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Raja Khan v. King-Emperor	Expresses the proposition that "An offence of abetment falls through if the principal offence is not substantiated."	The Court considered the case but concluded it did not establish the absolute rule that an abettor must always be acquitted if the principal is acquitted; the present facts were distinguishable.
R. v. Plummer	English authority cited for the proposition that repugnancy or contradiction on the face of the record may entitle an appellant to acquittal.	The Court treated this as the leading English case on the point but declined to follow the English rule automatically applying repugnancy as a ground for quashing a conviction in the absence of an Indian statutory provision.
Romesh Chandra v. The Emperor (Beachcroft, J.)	Holds that mere repugnancy in a jury's verdict is not by itself sufficient to quash a conviction.	The Court agreed with Beachcroft, J.'s view and relied on it to reject the proposition that repugnancy alone should automatically quash the conviction in the present circumstances.
R. v. Manning	Earlier English decision related to inconsistent verdicts; some judges affirmed applicable principles with reluctance; illustrates the historical uncertainty in English law on the point.	Cited to show that English authorities on repugnancy were historically treated with hesitation; the Court used this to justify not following the English rule as a binding principle under Indian law.

Court's Reasoning and Analysis

The Court undertook a step-by-step analysis focused on two principal lines of reasoning: (1) whether acquittal of the principal necessarily invalidated the conviction for abetment, and (2) the legal effect of the appellant's retracted confession in the light of section 94, IPC (plea of compulsion by threats).

On the first point, the Court examined the authorities relied upon by the appellant (including Raja Khan and English decisions such as R. v. Plummer) and concluded these do not establish an absolute rule that an abettor must be acquitted whenever a co-accused (the alleged principal) is acquitted. The Court noted that in many cases the acquittal of a principal will entail acquittal of an abettor, but it held that exceptions may exist depending on the evidence available against each accused. The Court also expressed reluctance to adopt the English rule (that repugnancy in verdicts alone requires quashing) as a binding rule in India in the absence of statutory provision, and observed that English authorities themselves had shown hesitation in treating the matter as settled.

On the second and decisive point, the Court focused on the effect of the appellant's pre-trial statement (described in the opinion as a statement of the nature of a confession) which—if believed—stated that Nabanidhar struck Radha Raman with an axe while the appellant held his legs, and that she only assisted because he had threatened to murder her. The Court held that the Sessions Judge had omitted to direct the jury properly on the effect of section 94, IPC, which provides that compulsion by threats causing reasonable apprehension of instant death is a defence to any offence except murder and certain offences against the State. The key analytical moves were these:

If the appellant's confession (as given before the Sub-Divisional Magistrate) was true, she would be entitled to acquittal on the abetment charge because section 94's protection (for compulsion by threats) does not exclude only the substantive offence of murder but does not thereby extend to abetment (section 109) in the way required to sustain a conviction in the circumstances described; the Court explicitly states the word "murder" in section 94 cannot be held to include abetment punishable under section 109, IPC.
If the appellant's confession was false, the prosecution would need to rely on circumstantial evidence to prove that Nabanidhar committed the murder; but the Court found that the circumstantial evidence, though pointing to the murder having been committed in the house, was not such that the Court could safely conclude the jury would have convicted absent the misdirection on section 94.
The Court inferred from the jury's specific verdict pattern (convicting the appellant of abetment but not convicting her of murder under section 302) that the jury had accepted the appellant's account that she held the deceased's legs while Nabanidhar struck the blows, yet did not find she shared a common intention to murder. That inference made it likely the jury believed the confession as a whole, and thus the appellant would be entitled to acquittal on the abetment charge.

On the question of a retrial, the Court gave additional reasons for refusing to order one: a retrial would require the prosecution to assert the confession was false and try the appellant again on murder — but she had already been acquitted on the substantive charge of murder, and thus could not be retried on that charge. Further, the circumstantial evidence might support a finding that she was merely an accessory after the fact rather than an abettor, in which case she could not properly be convicted of abetment.

Holding and Implications

CONVICTION AND SENTENCE SET ASIDE; APPEAL ALLOWED; APPELLANT ORDERED TO BE RELEASED IMMEDIATELY.

Direct effect on the parties: The Court set aside the conviction and sentence of Uma Dasi on the charge of having abetted the murder by Nabanidhar Mandal and directed that she be released at once. The appeal was allowed.

Broader legal implication stated in the opinion: The Court declined to adopt an absolute rule (drawn from some English authorities) that repugnancy in jury verdicts or the acquittal of a principal necessarily mandates quashing of an abettor's conviction in all cases. The Court also emphasized the significance of the appellant's confession and the need to apply section 94, IPC, when a claim of compulsion by threats is made. The opinion did not expressly purport to lay down a new binding precedent beyond the resolution of these facts, but it records the Court's willingness to treat English authorities on repugnancy as non-binding in the absence of Indian statutory direction.

Order: Appeal allowed. (Signed: J.N.R.)

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Umadasi Dasi v. The King-Emperor

The Judgment of the Court was as follows:—

The Appellant Uma Dasi and one Nabanidhar Mandal were committed for trial to the Court of the Sessions Judge of Birbhum on a charge that they committed murder by causing the death of Radha Raman Mandal. In the Sessions Court, a charge was added against the Appellant which was as follows:—“I.K.C Nag. Sessions Judge of Birbhum, hereby charge you Uma Dasi as follows:—That you, on or about the 30th day of August 1923 at Dechandra, P.S Shapur, being, present abetted the commission of the offence of murder of Radha Raman Mandal by Nabanidhar Mandal which was committed in consequence of your abetment and thereby committed an offence punishable under sec. 302/109 of the Indian Penal Code.” The first trial of the accused persons commenced on the 26th November 1923 and continued till the 5th December 1923 when the jury were discharged and a fresh trial ordered as one of them was unable to attend owing to illness. The second trial commenced on the 7th January and ended on the 17th January 1924. Seven of the jurors found Uma Dasi guilty under sec. 302/109 and two of them found her not guilty. Pour were of the opinion that Nabanidhar Mandal was guilty under sec. 302 and five were of opinion that he was not guilty. The jury unanimously recommended Uma Dasi for mercy on the ground of her youth. The Sessions Judge agreed with the verdict of the majority of the jurors and convicted her under sec. 302/109, I.P.C Accepting the recommendation of the jury he sentenced her to transportation for life. He recorded an order of acquittal of the charge under sec. 302, I.P.C He did not accept the verdict of the majority of the jury acquitting Nabanidhar Mandal and referred his case to this Court under the provisions of sec. 307, Cr. P.C This reference (No. 6 of 1924) was heard by another Divisional Bench of this Court in the 20th March. The reference was not accepted and the accused Nabanidhar Mandal was acquitted.

The first point urged on behalf of the Appellant is that Nabanidhar having been acquitted, her conviction cannot stand. It is urged that the only charge on which she was convicted was that of having abetted the commission of the offence of murder by Nabanidhar and that as it has been judicially and finally decided that Nabanidhar did not commit the murder it would be anomalous to hold that the Appellant abetted the commission of an offence that had not been committed. It is further urged as a supplementary argument that there was misdirection by the learned Sessions Judge since he omitted to tell the jury the points they would have to consider with reference to the charge of abetment if they acquitted Nabanidhar of the charge of murder. In support of this contention reliance is placed on the decision in Raja Khan v. King-Emperor . In that case one Torap Ali was charged with cheating by personation and the two Appellants were charged with abetment of that offence. Torap Ali was acquitted and the two Appellants were convicted. It was held on appeal that the jury should have been told that the first thing that must be decided was whether the alleged offence had been committed by Torap Ali and unless Torap Ali was guilty the Appellants could not be found guilty of abetting that offence. The report of the case gives no facts except those stated in the Appellate judgment and it does not in our opinion support the general proposition that in every case where an abettor and principal are tried together the abettor if charged with having abetted the principal in the commission of an offence must be acquitted if the principal is acquitted. In the majority of cases this would necessarily follow but we hold that a case like the present might be an exception to the general rule. The general rule is stated in the head-note to the case above cited in the following terms: “An offence of abetment falls through if the principal offence is not substantiated.” There is nothing to suggest that in that case there was any evidence to prove the commission of the offence by the principal as against the abettors which was not equally good evidence against the principal Torap Ali. If the jury disbelieved that evidence it would necessarily follow that those charged with abetment should also have been acquitted. The present case is distinguishable firstly on the ground that there can be no doubt that the offence of murder was committed; secondly on the ground that there was the evidence of a retracted confession by Uma Dasi on the basis of which the jury might have found, as against her, that the murder was committed by Nabanidhar though as against him it would be of practically no value and insufficient to support a conviction. The strongest support to this contention on behalf of the Appellant is to be found in the English law, the leading case on this point being R. v. Plummer . Under English law the present Appellant would be entitled to an acquittal on the ground of repugnancy or contradiction on the face of the record. But we are in agreement with the opinion expressed by Beachcroft, J., in his judgment in Romesh Chandra v. The Emperor . He held at page 516 that mere repugnancy in the verdict of a jury is not by itself sufficient to ensure the quashing of a conviction. In addition to the weighty reasons given by Beachcroft, J., we may add that the English decisions on this point appear to have been based on a regard for long established practice rather than on principle. In one of the earlier cases R. v. Manning two of the learned Judges Mathew and Stephen, JJ., expressly stated that they affirmed this principle with great reluctance. Lord Coleridge C.J, who originally tried the case had directed the jury that where two persons were indicted for conspiring together and were tried together they might find one prisoner guilty and acquit the other. He also was one of the Bench that heard the rule for a new trial. In his judgment on that rule he explained that his opinion at the time of the trial was that where there is a joint offence which has to be proved against each person separately the evidence which is sufficient to convict one person of the offence may not by any means be sufficient to convict the other. He further stated that he might have adhered to this view if the matter had been res integra. In R. v. Plummer also two of the learned Judges Lord AI-verstone, C.J, and Jelf, J., felt considerable difficulty on this point. In the absence of any provision in the Indian Statute Law we do not feel bound to follow this rule of English law that repugnancy on the record is a ground for Quashing a conviction.

The learned vakil for the Appellant ably argued several other points of law on his client's behalf. As we hold that this appeal must be allowed on one of these grounds we do not think it necessary to discuss the other grounds of minor importance which we held not to have been established. The case for the prosecution is that Radha Raman Mandal was murdered by Nabanidhar Mandal, the paramour of Uma Dasi, who was the wife of the murdered man. On the night of the murder Uma Dasi and her husband were left alone in their house, the other inmate Radha Raman's mother having gone to another village at Uma Dasi's request. The next morning Radha Raman's corpse was discovered on the bank of a tank 30 cubits away. The wounds on the body, the blood-stains found in the house and marks of dragging from the house to the tank afford very strong circumstantial evidence that the murder was committed in the house by some one who struck the deceased three severe blows on the head with some hard substance. Uma Dasi's conduct was suspicious and she made contradictory statements when questioned about the manner in which her husband was killed. To the investigating Sub-Inspector Uma Dasi made incriminating statements when she produced a number of blood-stained articles. The following afternoon Uma Dasi was taken before the Sub-Divisional Magistrate where she made a statement of the nature of a confession implicating herself and Nabani. This incriminating statement she subsequently retracted. It is with reference to this statement that there has been serious misdirection. In this statement Uma Dasi said that Nabani murdered her husband by striking him over the head with an axe while she held his legs. But she also said that she protested against the murder and only assisted Nabani because he threatened to murder her also. The learned Sessions Judge in his charge to the jury has overlooked the provisions of sec. 94 of the Indian Penal Code. Under this section a plea of compulsion by threats which reasonably cause the apprehension of instant death is a good defence by a person charged with any offence except murder and offences against the State punishable with death. This statement of Uma Dasi, if believed, though not a bar to her conviction on the charge of murder, could not support the charge of abetment of murder. The word murder in sec. 94, I.P.C cannot be held to include abetment of murder punishable under sec. 109, I.P.C The prosecution is therefore placed in a dilemma. If the statement of Uma Dasi is true she is entitled to acquittal on the charge of abetment on the ground that she acted under the apprehension of instant death. If this statement is false the evidence against her is insufficient to prove that Nabani committed the murder and she cannot be convicted on the charge as framed that she abetted the commission of murder by him. The learned Deputy Legal Remembrancer asked us to disbelieve this part of the confession and to hold that the circumstantial evidence was sufficient to support the verdict of the jury. This we cannot do as it cannot be said that the jury would have convicted the Appellant if they had been properly directed as to the application of sec. 94, I.P.C If, as we must presume, the jury obeyed the directions of law given to them by the learned Judge, it seems evident that they did believe the confession. They were told that if they held on a consideration of the whole of the evidence that Uma Dasi was actuated by the common intention of murdering her husband when she held his legs, Uma Dasi and Nabani were both guilty under sec. 302, I.P.C As they did not find her guilty under this section but of abetment as charged it appears that they believed that she held her husband's legs while Nabani murdered him but that she was not actuated by the common intention of murdering him. They could only have come to this conclusion if they accepted her explanation and believed her confession as a whole. On this finding the Appellant is entitled to an acquittal and it would not be just to order her retrial.

There are also other reasons why we do not think a retrial should be ordered. At a retrial the case for the prosecution would necessarily be that the statement of Uma Dasi was not a true account of what happened but that her guilt was established by the circumstantial evidence. This circumstantial evidence is such that the inference might be drawn that she was guilty of murder but she cannot be again tried on that charge after her acquittal. Further the circumstantial evidence appears consistent with her having been an accessory after the fact and if the jury took this view she could not be convicted of abetment.

For the above reasons we set aside the conviction and sentence of the Appellant on the charge of having abetted the commission of murder by Nabanidhar Mandal and direct that she be released at once.

J.N.R

Appeal allowed.

Umadasi Dasi v. The King-Emperor

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (as stated in the opinion)

Prosecution / Respondent Arguments (as stated in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Umadasi Dasi v. The King-Emperor

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