1. The seven accused have been sentenced to death for the murder of Venkataswami Nayaken of Nagaraka-landai. The only evidence to connect them with the crime is the statement of prosecution witness No. 2 who says he accompanied the deceased to Malayandipaliem on the day of his death. The evidence of prosecution witness No. 3 who says he also went with the deceased is useless for the purpose of connecting these accused with the crime, since he stated at the trial that he ran away as soon as he saw five or six persons at the Madam without recognising any of them, The joint statement (Ex. E) that this witness and prosecution witness No. 2 signed before the Monegar cannot be used as substantive evidence of this witness against the accused as it was not a statement recorded on oath in the presence of the accused by a Magistrate empowered to take down evidence (See Emperor v. Cherathchoyi Kutti I.L.R(1902) . Mad. 191. The only use of such a statement would be to corroborate or contradict statements made on oath at the trial. The evidence of Prosecution Witness No. 2 is to the effect that before he ran away he saw the 1st accused beat the deceased with a stick on his right ear and that 2nd accused stabbed him with a spear on his head.
2. On the body at the postmortem about six incised wounds and about thirty-one stick marks were found, the spleen was also ruptured, nine ribs were broken, and the lungs were pierced by pieces of broken ribs, but no mark corresponding to the blow with a stick dealt in the region of the right ear was noted by the Sub-Assistant Surgeon and it would have been natural to expect punctured wounds rather than incised wounds to result from the use of a spear. This witness (P. W. No. 2) told the Monegar that the other five accused came running taking sticks. He did not then mention that they committed any act which contributed to the deceased's death. The evidence against accused Nos. 3 to 7 is thus obviously insufficient to support their convictions. The body was eventually found by the acting Monegar lying outside the pen of 5th accused with a dead goat beside it. The 5th accused's father and a small boy were lying in a hut inside the pen. It is not reasonable to suppose that if the accused killed the deceased at the place where P. W. No. 2 says he first met them (i.e.) at the Madam near the hill and under the circumstances spoken to by this witness they would have taken the corpse to the 5th accused's pen and left it there. If the murder was committed by others, or if the deceased who, as the Judge observes, was known to be a cattle thief had been caught in the act of stealing a goat and beaten to death, it would have been natural that his body should have been found where it was. If the accused murdered him and wished to avert suspicion from themselves, and at the same time to provide some justification for their act in case of detection, they would have left the body at a distance and brought a dead goat and placed it alongside.
3. Apart from the improbability of the prosecution story in this respect, the evidence of P. W. No. 2 is not in our opinion so reliable that it would be safe to base the convictions of the 1st and 2nd accused on his word alone. It is proved by Ex. II that 1st accused's father made a complaint against this witness three years ago, and his statement at the trial as to the number and identity of the persons recognised by him at the pen differed considerably from what he told the Monegar in Ex. E. We set aside the convictions of all the accused, acquit them, and direct their release.