1. The appellant in this case has been convicted of the murder of his wife and has been sentenced to death by the Acting Sessions Judge of Ramnad. The prosecution case is that the accused called. out his wife, who was sleeping in her mother's house, took her to his house at about 5 A.M. in the morning and murdered her. The evidence for the prosecution mainly consists of the evidence of the mother of the deceased, who says, she saw the accused standing in front of her house calling out his wife; and there is also the evidence of P.W. 12 who saw the accused going towards his house in the morning and of P.W. 12 of his going away from the house sometime after. Another witness seems to have 'heard the cry' Ayyo, Appa.'
2. The witnesses have not adhered to the statements made by them under Sections 288 and 164, Criminal Procedure Code. The mother now states that she did not know who it was that called her daughter though she has told that it was the accused who took her away, in her previous statement. It is unnecessary to discuss the evidence of the other witnesses which is on a par with the evidence of the mother of the deceased. The learned Judge has not filed the whole of evidence taken under Section 288, he has marked only portions of the previous statements for the purpose of contradicting the statements made before him by the witness. The learned Judge has come to a halting conclusion that the previous statements must be true. If a Judge wanted to rely upon Section 288 the whole of the statement should have been filed and it would then have been open to the Court to come to a conclusion after weighing the evidence. Such a course was not adopted in this case. We are not at all satisfied that the evidence of the witnesses proves that the accused committed the crime. The learned Judge relied upon Exhibit E, as furnishing a motive. It is an anonymous letter produced four or five days after the occurrence under suspicious circumstances. But for that letter, there is no motive at all for the accused to murder his wife. Exhibit E is not evidence of its contents and there is evidence that the accused was in no way influenced in his conduct towards his wife, and if we eliminate Exhibit E, as the learned Judge rightly observes, there h no motive at all for the accused to murder his wife with whom he was living on affectionate terms.
3. We therefore think that the evidence does not establish that the accused comemitted the offence and we therefore allow the appeal.
4. The next question is whether there should be a re-trial in the case. The trial we are constrainad to say was not properly conducted before the lower Court. The learned Judge should have seen to the filing of the whole of the previous statements and ot portions of them if he wanted to relyupon them. This was not properly done. And the Judge does not say definitely, that he relied upon the earlier statements in preference to the statements made in his Court, and we do not think that the evidence of these witnesses who have resiled from their earlier statements should be relied upon for supporting a case of this sort. We do not however in these circumstances think that there should be a retrial and we accordingly set aside the conviction and direct the accused to be set at liberty.