These three appeals arise out of Sessions Case No.62 of 1952 on the file of the Court of Session of the West Tanjore division wherein two accused were tried for an offence under section 302 read with section 34, Indian Penal Code, in that they committed murder by causing the death of one MounaSwami by cutting him with an aruval on the night of the 27th June, 1952, at Chandrasekarapuram village. The learned Sessions Judge found that those arraigned for this offence were guilty under section 460, Indian Penal Code and sentenced each one of them to transportation for life. He also found each one of them guilty under section 380, Indian Penal Code and sentenced each of them to rigorous imprisonment for a period of seven years. The sentences were directed to run concurrently. The result of convicting the accused under section 460, Indian Penal Code, was the acquittal of the accused under section 302 read with section 34, Indian Penal Code and therefore the State has preferred C.A.No.175 of 1953 questioning the correctness of the acquittal of the accused for the offence of murder. Each of the accused has filed an appeal against his convictions and sentences.

In the village of Chandrasekarapuram, an ascetic known as Mouna Swami, was residing in a matam adjoining a Subramania temple both of which had an adjacent tank and were situated on the eastern extremity of the village. Towards north runs a road from Valangiman to Papanasam and it is also seen from the plan, Ex. P-26, that there was a fencing on three sides of the compound wherein the matam and- the temple were situated and on the fourth side, viz., the southern side, there was a wall about 5 feet in height. It is not necessary to relate in any detail the habits of this Swami, for it is not disputed that on the night of the 27th of June, 1952, this Swami, as usual, after taking his night refreshment which consisted of a glass of milk, went to sleep in the matam which was a small building surrounded on three sides by walls with an opening to the east closed by a thatti door. It is further in evidence that when he was last seen alive, i.e., at about 9 p.m., on the night of occurrence, he was wearing kashayam robes and had a gold-chain on his neck and some gold-rings on his fingers. The next morning at about 6 a.m., he was found murdered in the matam and the jewels on his person were missing. According to the post-mortem certificate Ex.P-1, this Swami had died of shock and hemorrhage due to the injuries on his person of which the necessarily fatal injury was injury No.5, viz., an incised gaping wound across the middle of the neck 3“x3” cutting the vessels and stomach underneath with a cut on the vertebra below to a depth of i inch. There were also five other injuries but injury No.5 being necessarily fatal, death would have been practically instantaneous. There is therefore no doubt whatever that somebody inflicted the wounds on this unfortunate hermit during the night in question and robbed him of the jewels on his person. According to the prosecution case, the two accused in the Court below were the murderers and thieves.

A brief resume of the prosecution evidence can now be given. P.W.1, who was employed as a gardener of the Subramaniaswami temple and who used to sweep and clean the matam as well, deposed that on the 27th June, 1952 at about 6p.m., he left the matam and the temple after finishing his daily work and returned home’ At that time the Swami was alive and was at the matam P.W.2, the poojari attached to the Subramaniaswami temple employed by the Swami, was in the temple till 9p.m., on the 27th June, and it was he who gave the Swami his milk food for the night. On the morning of the 28th when both P.Ws.1 and 2 went to the matam and the temple at about 6am., they found the Swami murdered and the jewels on his person missing. The evidence of P.W.2 which could not be, and has not been, questioned, is that on the previous night, i.e., at 9p.m. on 27th May, 19