A confession of a co-accused who is not being tried jointly with the accused against whom the confession is used is inadmissible under Section 30 of the Evidence Act. A conviction cannot be based solely on the confession of a co-accused.

JUDGEMENT

1. The appellant and another co-accused person, namely, Baina Das, stand convicted for commission of an offence of dacoity under Section 395 of the Indian Penal Code and sentenced thereunder to undergo rigorous imprisonment for a period of five years by Mr. G.S. Patra, then functioning as the Additional Sessions Judge, Balasore, by his judgment and order of conviction dated 30th Sept., 1983, solely based on the confession of one of the accused persons, namely, Narendra Behera who had stood trial previously with the other accused persons and not jointly with the appellant and the co-accused Baina Das and who had implicated himself and the appellant and the accused Baina Das in the commission of the crime of dacoity in the house of Dibakar Jena (P.W.1) at village Keratapadia in the district of Balasore during the night of 6th/7th Nov., 1975 in the course of which the culprits were alleged to have removed case and other properties after assaulting the inmates of the house being armed with dangerous instruments, On the basis of the first information report lodged by P.W.1, investigation had been taken up by the Officer-in-charge of the Nilgiri Police Station (P.W.8) and on its completion, a charge-sheet was placed against the present appellant and the co-accused person Baina Das besides nine others. The appellant and the co-accused person were not available and were said to be absconding. The other accused persons involved in the same case were tried in batches in Sessions Trial Nos.70 and 73 of 1977 which were disposed of on 13-12-1977. After the appellant and the co-accused Baina Das were apprehended, they were tried jointly being charged under S.395 of the I.P.C. To bring home the charge, the prosecution had examined eight witnesses of whom P.Ws.1 to 4 and 7 had been examined to speak about the commission of dacoity and they had identified the appellant and the co-accused Baina Das in the Court. P.W.5, then the Subdivisional Judicial Magistrate at Nilgiri, had recorded the confessional statement (Ext.2) of the accused Narendra Behera. P.W.6 was a witness to some seizures in the course of investigation. P.W.8 had investigated into the case. The appellant and the co-accused Baina had not examined any witness in their defence.

2. On a consideration of the evidence of P.Ws.1 to 4 and 7, the learned trial Judge did not accept their evidence of identification and in my view, rightly so, in view of the reasons recorded by him in the body of the judgment. It is not necessary for this Court to catalogue the grounds given for discarding their testimony in this regard as the learned Standing Counsel has not challenged these findings recorded by the learned Judge. After disbelieving and discarding the evidence of P.Ws.1 to 4 and 7, the learned trial Judge considered the confessional statement of the accused Narendra Behera and found thus :

"Now remains the confessional statement of the co-accused to be considered. One Narendra Behera and 10 others including the two accused persons were charge-sheeted in one and the same G.R. Case No.148 of 1975. The present two accused persons were absconding. Their case was, therefore, split up. After their apprehension they are presently facing their trial. Prior to that Narendra Behera and others were tried in S.T. Nos.70 and 73 of 1977 disposed of on 13-12-1977. So it cannot be disputed that Narendra Behera was a co-accused. His confessional statements were recorded as per Ext.2 by the S.D.J.M., Nilgiri, examined as P.W.5. In Ext.2, the co-accused Narendra Behera confessed his guilt before the S.D.J.M. P.W.5 not only implicating himself but also implicating the present two accused persons as participants in the dacoity. In that statement Ext.2 Narendra Behera gives out a detailed picture as to the manner in which dacoity was committed on the fateful night in the occurrence house. The evidence of the S.D.J.M. P.W.5 clearly shows that this statement was made by Narendra Behera voluntarily without