1. The appellants have been convicted under Section 394, I.P.C., and sentenced to five years rigorous imprisonment, by the Sessions Judge of Ramnad Division. The appellants were tried for an offence under Section 395, and the charge as read out to them is in the following terms That you along with others numbering five and more on or about the 9th June 1926, at Virudunagar during night did commit dacoity and thereby committed an offence punishable under Section 395 I.P.C., and within my cognizance.

2. The jury found that five people did not take part in the occurrence and their verdict was that both the accused were guilty of robbery in which hurt was voluntarily caused. The contention of Mr. Vaz for the appellants is that the conviction on a charge which was hot specifically placed before the jury and to which the accused were not asked to plead is irregular. The learned Public Prosecutor contends that the offence under Section 394 is a minor offence and, therefore, it was open to the Judge without framing a formal charge under Section 394 to ask the jury to say whether they found the appellants guilty under Section 394.

3. We think that in cases tried by jury the charge sho