1. The two accused in this case have been convicted of the murder of the Pandara Sannadhi at Dharmapuram on the night of October 28th, 1923 and have been sentenced to death by the Sessions Judge of East Tanjore. My learned brothers, Dovadoss and Wallace, JJ., have differed on the question whether the conviction for murder should be confirmed or not and it is for me to decide now which of their views should prevail. The fact that the deceased was murdered at the time and place stated in the charge has not been questioned before me. The complicity of these accused in the murder is alone in question. They were palanquin bearers employed in the mutt. There is no evidence as to their movements on the night of the murder. The only evidence appearing against them consists of (1) the fact that they produced certain properties alleged to have been stolen from the mutt and from the deceased and (2) the fact that they made certain statements at the time of producing those properties which are admissible under Section 27 of the Evidence Act.
2. In Queen Empress v. Sami  13 Mad. 426 in which there was reason for concluding that murder and robbery were committed as parts of the same transaction, the presumption was drawn that any one who took part in the robbery also took part in the murder and evidence as to the disposal of the property belonging to the murdered person was taken into consideration against the accused on the charge of murder. In that case there was other evidence besides the evidence as to the production of stolen property, to connect the accused with the crime, namely, evidence that the first accused assisted in disposing of the corpse and that he and the second accused acted in concert together and evidence that the second accused was seen in the neighbourhood of the crime at the time when the deceased disappeared.
3. In Moyila Kurmiah v. Emperor  M.W.N. 145 there was evidence that the accused was seen in the company of the murdered woman shortly before her disappearance. My learned brothers have differed mainly in the question whether the murder of the Pandara Sannadhi and the theft of property from the mutt have been shown to be parts of the same transaction, and secondly, as to the significance to be drawn from the fact that the accused showed places where certain property was buried and at the same time made statements.
4. I adhere to the view that I expressed in In re Nainamalai Konan  14 L.W. 418 that the statement of an accused that he had in possession certain stolen property is admissible in evidence even though he himself produced the property. I agree with the opinion of Sadasiva Aiyar, J., expressed in Manjunathaya v. Emperor : (1914)26MLJ352 that it makes no difference whether the accused himself digs out the property from the place where it is hidden or whether on information given by him someone else digs up the ground and produces the property. Upon this point Devadoss, J.'s opinion is undoubtedly sound and is supported not only by authority but also by commonsense. I also agree with the opinion of the learned Judges who heard the appeal that, if an accused makes a statement which is admissible under Section 27, the whole of the statement which leads to the discovery of the stolen pro party is admissible and that sentences should not be cut up so as to reduce the statements only to the actual words which the accused -may use to express the fact that he had hidden the properties. I think that the Sessions Judge was wrong in ruling out the statement of the first accused that the properties produced by him were stolen on the night of the occurrence. Wallace, J., is not satisfied that the accused used these words. If there is no proof that he used the words, of course no reliance should be placed on the use of them for convicting the accused but if the accused did use the words then they are parts of the sentence in which he gave information which led to the discovery of stolen property, and parts of. sentences cannot be excluded so as to have the effect of making the whole statement incomplete and less intelligible.
5. Mr. Devadoss, J., held that the murder and the theft were parts of the same transaction because the thieves seem to have removed the properties belonging to the mutt. If that is clearly made out, it might tell against the first accused in the charge Rathanasabapathy Thambiran, who claimed to be the rightful successor to the deceasd Pandara Sannadhi and in that capacity was responsible for the matt property. But for some reason or other the prosecution reserved the case of Ratnasabapathy Thambiran and Ayyadurai Pillai and proceeded against these accused, who at the worst were only minor accomplices in the crime of murder.
6. I cannot too strongly condemn the improper procedure of the Sessions Court in allowing the principal accused to remain untried while a charge of murder was proceeded with against certain other persons who are supposed to have played a minor part in the crime. There is no reason why all the accused should not have been tried together at one trial. Even if some of them were principal offenders and the others accomplices, Section 239, Cl (b), Criminal P.C., permits them all to be tried together in one trial. The Sessions Judge has committed several other irregularities such as marking as exhibits statements made at the inquest by the several persons who were not witnesses at the trial and statements of witnesses made on previous occasions without drawing their attention to the statements and without any apparent reason that they were required for contradicting or for corroborating the witnesses; but about that we shall have something to say later.
7. I am unable to agree with Devadoss, J., that the circumstances that most of the properties found missing belonged to the accused rather than to the mutt or the temple for which he was trustee, sufficiently establishes as against these accused that the murder and the theft were part of the same transactions. (The judgment then dealt with the evidence and proceeded.) For the prosecution, the point is sought to be made that the accused have not attempted to explain their possession of property stolen from the mutt, that the burden is on them under Section 106, Evidence Act of proving facts specially within their knowledge and under Section 114, ill. (h) if they decline to answer a question which they are not compellable to answer by law, the Court may presume that the answer, if given, would be unfavourable to their innocence of the crime. When the charge is that the accused committed murder or theft in a building or both, is it legitimate to presume that the accused are guilty of the more serious offence of murder because they are unable or unwilling to explain their possession of stolen property. I think the answer must be that if there is other evidence to connect the accused with the death of the murdered man, a jury, or in this country a Judge, may' find upon circumstantial evidence that he is the murderer. But when the unexplained possession of stolen property is the only circumstance appearing in the evidence against an accused charged with murder and theft, the accused cannot be convicted of murder unless the Court is satisfied that possession of the property could not have been transferred from the deceased to the accused except by the former being murdered. Wallaqe, J., obverves:
Neither law nor justice justifies the hanging of a man simply because he does not plead guilty to being a thief or a receiver of stolen goods.
8. I agree with that observation. In the present case there is evidence that the first accused made a statement prior to the discovery of the stolen properties that he buried the cloth bundle while others were burying cash, currency-notes and jewels in the same place, and there is evidence that the second accused said that he buried the gandi and other jewels not yet recovered in the yard behind his house. These statements are admissible under Section 27, Evidence Act, as they led to the discovery of property concerned in the crime, but the prosecution has been put to a disadvantage because the Sessions Judge failed to record in direct narration what the accused said, so far as the witnesses who deposed to the fact recollected it, in the actual words of the accused, and because the search lists Exs. TT and 22 prepared at the time also do not contain the statements of the accused as they made them and lastly because neither the committing Magistrate nor the Sessions Judge made use of their powers under Section 342, Criminal P.C., of asking the accused to explain the circumstances appearing against them, namely, that they had told the witnesses to the search that they had buried certain material objects which were stolen at or about the time of the murder. In the Magistrate's Court, the explanation offered by both accused for the production of the property bears out that they were beaten and compelled to dig in places shown to them by the police. They were never asked to explain the other circumstance appearing against them, viz., that they admitted having buried the property in the places where it was found.
9. The Public Prosecutor suggests that, as the trial has been defective in these and other respects and as evidence has yet to be recorded against other accused whose trial has been reserved, I should order a re-trial of these accused. I am of opinion that that step should not be taken unless there is a reasonable probability of their being convicted on the evidence known to be available against them. I do not find upon the materials in the record any probability of these accused being convicted of murder if they are retried. I agree with Wallace, J., that upon the evidence now before the Court the conviction for murder cannot stand against either of them. They are, therefore, both acquitted so far as this charge is concerned and the death sentences are quashed