Unexplained possession of stolen property alone is not sufficient to convict for murder.

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 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 [1913] 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 [1921] 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] 26 M.L.J. 352 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 o