A confession by a co-accused is inadmissible against another under Section 25 of the Evidence Act; therefore, the prosecution's failure to connect the accused with the crime led to acquittal.

ORDER :

M.B. SNEHALATHA, J.

The challenge in this revision petition is to the judgment in Crl.Appeal No.198/2017 of Sessions Court, Palakkad, by which it confirmed the conviction and sentence against the revision petitioner/A2 in CC. No.949/2016 of Judicial First Class Magistrate Court, Mannarkkad, for the offence punishable under Section 379 r/w 34 of the Indian Penal Code (IPC).

2. The prosecution case is that on 03.09.2016 at 00.30 hours, Accused 1 and 2, in furtherance of their common intention, committed theft of a motorcycle bearing registration No.KL-50-5087 owned by PW1 Babu from the residential premises of PW1.

3. Pursuant to Ext. P1 FI Statement laid by PW1, Ext.P10 FIR was registered by SHO Nattukal Police Station.

4. As per the prosecution case, on 08.09.2016, while the police party of Kolathur Police Station in Malappuram district were on night patrolling duty, they intercepted a motorcycle ridden by A1 with A2 as pillion rider, which was proceeding from Chattiparamb side. On seeing the police officials, the pillion rider took to his heels. A1, who was the rider of the said motorcycle, failed to give any satisfactory account of his possession of the said vehicle and failed to furnish any records relating to the said vehicle. On search of the person of A1, MO1 iron rod, which had been concealed on his waist, was seized by PW3, the then Sub Inspector of Police, Kolathur Police Station. PW3 registered Ext. P6 FIR under Sections 41 (1) (d) and 102 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C"). The motorcycle bearing registration No.KL-50- 5087 ridden by A1 was seized as per Ext.P5 seizure Mahzar. A1 was arrested and produced before the Jurisdictional Magistrate Court, along with Ext. P8 remand report. Upon interrogation of A1, it was revealed that the motorcycle seized from A1 as per Ext.P5 mahazar was a stolen vehicle. PW4, the then Station House Officer, Kolathur police Station, verified the ownership of the said motorcycle with the Motor Vehicle Department and it was revealed that PW1 – Babu is the owner of the said vehicle and it was stolen from his residential premises. PW4 could also learn that a crime as Ext.P10 has already been registered at Nattukal Police Station regarding the theft of the said motorcycle. Since the offence was committed within the limits of Nattukal Police Station, Ext. P6 FIR of Kolathur Police Station was transferred to Nattukal Police Station to be clubbed with Ext.P10 crime of Nattukal Police Station. PW5, the then Sub Inspector of Police, Nattukal Police Station, conducted the Investigation. After completing the investigation, final report was laid against A1 and A2 for the offence punishable under Section 379 r/w 34 IPC.

5. Revision petitioner/A2 pleaded not guilty to the charge and faced trial along with A1 before the Judicial First Class Magistrate Court, Mannarkkad.

6. The prosecution examined PWs 1 to 5, marked Exts.P1 to P11 and MO1. No defence evidence was adduced by the accused.

7. After trial, the learned Magistrate found both the accused guilty under Section 379 r/w 34 IPC and they were convicted and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.5,000/- each, with a further direction that in default of payment of fine, both accused shall undergo rigorous imprisonment for a period of three months each. Set off was allowed by the trial court.

8. Though challenging the conviction and order of sentence, revision petitioner/A2 preferred Crl.Appeal.No.198/2017 before the Sessions Court, Palakkad, the same was dismissed by the learned Sessions judge by confirming the conviction and sentence against him.

9. When this revision petition came up for hearing, there was no