JUDGMENT Knox and Burkitt, JJ.
1. After discussing the evidence relating to the conviction under Section 302 of the Indian Penal Code, thus continued:
The Government Advocate pressed upon us the fact that there was evidence which in his opinion would bring home to Yusuf, Ghulam Husain and Musammat Paragia an offence falling within either Section 404 or Section 411 of the Indian Penal Code A charge under either of these sections was never framed against any of the appellants, and they never pleaded to any such charge. Such a charge is of a nature so essentially different from and foreign to a charge of murder that we do not think it right to try any of the appellants on such a charge in this case. If the magisterial authorities think there is sufficient evidence against them, this acquittal on the charge of murder will not prevent a trial upon a charge under either of the sections mentioned above. This was the course adopted by this Court in the case of Queen-Empress v. Parbati, Weekly Notes, 1887, p. 130, a very instructive case in connection with the present, and one which we think we should follow in the present case. For the above reasons we allow the appeal, set aside the convictions and direct that all the four appellants be forthwith released.