1. The seven accused have been sentenced to death for the murder of one Venkatasami Naicken of Nagarakalandai. The only evidence to connect them with the crime is the statement of prosecution witness No. 2, who says ho accompanied the decayed to Malayandipaliem on the day of his death. The evidence of prosecution witness No. 3, who says be 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, recognizing any of them. The joint statement (Exhibit E) that this witness and prosecution witness No. 2 signed before the manager 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. Cherath Choyi Kutli 2 Weir 820. The only use of such a statement would be to corroborate or contradicts 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 first accused beat the deceased with a stick on his right ear and that the second accused stabbed him with a spear on his head.
2. On the body at the ost mortem about eis noised wounds and about thirty one su'ek marks wero found, the epleen was also ruptured, nine ribs were brokan, and the lungs were pieraed by pieees of broken rib, but no n ark corresponding to the blow with a stick dealt in the region of the right ear was noted by the Sub-Assistant Surgeo and it would have been natural to expect punctured wounds rather than incised wounds to result from the use of a spear. This witness (prosecution witness No. 2) told the monegar that the other five accused same running taking sticks. He did net then mention that they committed any act whiah contributed to the deceased's death. The evidence against aeanaed Nos, 3 to 7 is thus obviously insufficient to support their convietions. The body was eventually found by the seting monegar lying outside the pen of fifth accused with a dead goat beside it. The fifth aseused's father and a small boy were lying in a hut inside the pen. It is not reasonable to suppose that, if the aseused killed the deseased at the place where prosecution witness No. 2 says he first mat them (i.e.,) at the Madam near the hill, and under the aircumatances spoken to by this witness, they would have taken the corpse to the fifth acusse'd pan and left it there. If the murder was comitted by others, or if the deceased who, as the Judge obiervor was known to be a eatile thief had been caught in the act of stealing a go it and beaten to death, it would have been natural that his body sfcoali have baeu found where it was, If the accused murdered him and wishsd to avert suspicion from tbemsdyes, and at the sama tiao to provide some justification for their act in case of detection they wculd have left the body at a distance and brought a de*d goat and plaaed it along side.
3. Apart from the improbability of the prosecution story in to this respect, the evidence of prosecution witness No, 2 is not, in our opinion, so reliable that it would be safe to base the convictions of the first and second assused on his word aloas. It is proved by Exhibit II that first accused's father made as unpaiot against this witness three years ago, and his statement at the trial as to the numbs? and identity of the parsons recognised by him at the pen differed consider-ably from what he told the monegar in Exhibit.
4. We set aside the convictions of all the amused, acquit them and direct their release.