Norman Macleod, C.J.
1. The two accused were charged before the Sessions Judge of Thana with having committed the murder of one Lakhu on November 26, 1923. The chief evidence against the accused was their own confessions which were persisted in before the Sessions Court. Those confessions show that the first accused had murdered Lakhu, while the second accused had instigated the first accused to commit the crime. She had not taken any part in the actual killing of Lakhu, though afterwards she assisted the first accused in burying the corpse. The Sessions Judge directed the jury that the accused would be guilty of abetment of murder unless the jury could be satisfied that she had taken part in the actual killing of Lakhu, which certainly was not clear on the evidence. Accordingly the jury found the first accused guilty of murder and the second accused guilty of abetjnent of murder. Both were sentenced to death.
2. We are now confronted with the decision of this Court in Reg. v. Chand Nur (1874) 11 B.H.C.R. 240 in which it was held that where a man is charged with murder and is convicted of abetment, without being charged with abetment, the conviction and sentence must be annulled and a retrial ordered. Their Lordships said (pp. 241, 242):-
It is not open to a Court to find a man guilty of the abetment of an offence on a charge of the offence itself. When a man is accused of murder, he may not be conscious that he will have to meet an imputation of collateral circumstances constituting abetment of it, which may be quite distinct from the circumstances constituting the murder itself. When, therefore, the Sessions Judge says that Section 457 warrants his convicting the accused of the abetment of murder on the original charge of murder itself, without amendment of the charge, he departs from the intention of that section. For although, under special circumstances, abetment is to be deemed equivalent to the principal offence, yet it is plain that a charge of the latter, simply as such, gives no intimation of a trial to be held on the former.
3. Under Section 238 of the Criminal Procedure Code, as amended, when a person is charged with an offence, he may be convicted of an attempt to commit such offence, although the attempt is not separately charged. If the legislature had intended to disagree with the decision to which we have just referred, it would have been enacted that when a person is charged with an offence, he may be convicted of abetment of such offence, although abetment is not separately charged. But that has not been done, and therefore, we must come to the conclusion in this case that there has been a misdirection, and that the conviction of abetment of murder against accused No. 2 cannot stand, as there was no charge of abetment made against her. The result must be that the conviction and the sentence must be set aside and a new trial must be ordered against accused No. 2. It may be desirable at the retrial to frame charges against accused No. 2 under Section 302 Indian Penal Code, and Section 302 read with Section 109 or 114, Indian Penal Code, as the Sessions Judge may think proper.
4. Until that trial has been completed the case of accused No. 1 will be held over. The Sessions Judge must report the result of the retrial at once to this Court which should take place as soon as possible.