Newbould and Ghose, JJ.
1. The appellant Umadasi and one Nabani Dhar Mandal were committed for trial to the Court of the Sessions Judge at Birbhum on a charge that they committed murder by causing the death of Radha Raman Mondal. 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 Umadasi as " follows:---'That you, on or about the 30th day of "August 1923, at Dechandra, police-station Shapur, "being present, abatted the commission of the offence " of murder of Radha Raman Mondal by Nabani Dhar "Mondal, which was committed in consequence of your "abetment, and thereby committed an offence punish "able under Sections 302/109 of the Indian Penal Code, etc.'". 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 Umadasi guilty under Sections 302/109, and two of them found her not guilty. Four were of the opinion that Nabani Dhar Mondal was guilty under Sections 302, and five were of opinion that he was not guilty. The jury unanimously recommended Umadasi 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 Sections 302/109 of the Penal Code. Accepting the recommendation of the jury, he sentenced her to transportation, for life. He recorded an order of acquittal of the charge under Section 302 of the Penal Code. He did not accept the verdict of the majority of the jury acquitting Nabani Dhar Mandal, and referred his case to this Court, under the provisions of Section 307 of the Criminal Procedure Code. This Reference (No. 6 of 1924) was heard by another Divisional Bench of this Court on the 20th March. The reference was not accepted, and the accused Nabani Dhar Mondal was acquitted.
2. The first point urged on behalf of the appellant is that Nabani Dhar 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 Nabani Dhar, and that, as it has been judicially and finally decided that Nabani Dhar 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 Jadge, since he omitted to tell the jury the points they would have to consider, with reference to the charge of abetment, if they acquitted Nabani Dhar on the charge of murder. In support of this contention reliance is placed on the decision in Raja Khan v. King Emperor (1920) 32 C. L.J. 478. 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 role 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 Umadasi on the basis of which the jury might have found as against her that the murder was committed by Nabani Dhar, though as against him it would be of practically no value and insufficient to support a conviction. The strongest support, of this contention on behalf of the appellant is to be found in the English law, the leading case on this point being Rex v. Plummer  2K. B.
339. 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 Ramesh Chandra Banerjee v. Emperor (1913) I. L. R. 41 Calc. 350. He held at page 374 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, Queen v. Manning (1883) 12 Q. B. D. 241., two of the learned Judges Mathew and Stephen J.J. expressly stated that they affirmed this principle with great reluctance. Lord Coleridge C. J. who originally tried the case had directed the jury that, when 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 farther stated that he might have adhered to this view if the matter had been res Integra. In Rex. v. Plummer  2 K. B. 339. also two of the learned Judges, Lord Alverstone 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.
3. 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 Mondal was murdered by Nabani Dhar Mandal, the paramour of Umadasi, who was the wife of the murdered man. On the night of the murder Umadasi 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. Umadasi'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 Umadasi made incriminating statements when she produced a number of blood-stained articles. The following afternoon Umadasi was taken before the Subdivisional 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 Umadasi 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 Section 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 Umadasi, 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 Section 94 of the Penal Code cannot be held to include abetment of murder punishable under Section 109 of the Penal Code. The prosecution is, therefore, placed in a dilemma. If the statement of Umadasi 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 Section 94 of the Penal Code. If, as we must presume, the jury obeyed the direction 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 Umadasi was actuated by the common intention of murdering her husband when she held his legs, Umadasi and Nabani were both guilty under Section 302 of the Penal Code. 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, bat 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.
4. 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 Umadasi was not a true account of what happened, but that her guilt was established by the circumstantial evidence. The 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 ber having been an accessory after the fact, and if the jury took this view she could not be convicted of abetment.
5. 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 Nabani Dhar Mandal, and direct that she be released at once.