Spencer, O.C.J.

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 [1890] 13 Mad. 426 in which there was reason for concluding that murder and robbery were committed as pa