Judgment Anant Singh, J. 1. The petitioner was tried along with one Gulli Sao on charges under Sections 411 & 457 of the Indian Penal Code. Gulli Sao was convicted on both the counts and given six months rigorous imprisonment under Sec. 411 and four months rigorous imprisonment under sec. 457 with a fine of Rs. 50.00 in default further rigorous imprisonment for one month, the sentences to run consecutively He does not appear to have filed any appeal. 2. The petitioner was acquitted under Sec. 457 Penal Code but was convicted only under sec. 411, Penal Code with six months rigorous imprisonmnet and this was confirmed in appeal also by the court of appeal below. 3. The short facts of the case are as follows : At about evening time on the 27th March, 1964, the petitioner and Gulli were both seen by Jagdeo Prasad (P W 6) going on a rick shaw from Nathnagar side towards Sujaganj bazar in the town of Bhagalpur. On the rickshaw, there was a bundle of gunny bag containing some coils of rope. P. W. 6 suspected that the coils of rope might have been stolen from the Gola of Fakir Chand Gupta (P. W. 5), the Gola being situate in the town of Nathnagar. P. W. 6 therefore, hastened to inform P. W. 5 about it and, thereafter, P. W. 5 along with P. Ws. 3 and 4 rushed to Nathnagar Gulli and the petitioner were both found still on a rickshaw in the Nathnagar town and on the rickshaw was found a gunny bag containing some roils of rope. Some local persons, like, P. Ws. 1 and 2 also arrived. It is said that in the presence of P. Ws. 1 to 5 the petitioner and Gulli both confessed having entered into the Gola of P. W. 5 and stolen the coils of rope, which were found on the rickshaw. 4. The petitioner and Gulli in due course were put on trial before a Magistrate Both pleaded not guilty of the charges and denied having made any confession. It was said that they had been falsely implicated. 5. 4. The petitioner and Gulli in due course were put on trial before a Magistrate Both pleaded not guilty of the charges and denied having made any confession. It was said that they had been falsely implicated. 5. The learned Magistrate did not accept the evidence of the witnesses deposing to the confession by the petitioner, because those witnesses had not said anything about it in their statements before the police nor did the first information report, lodged by P. W. 5, mention anything about it. The learned Magistrate therefore, acquitted the petitioner of the charge under Sec. 467, Penal Code, He however, believed the evidence that the petitioner was found along with Gulli sitting on the same rickshaw on which there was a gunny bag containing the coils of rope stolen from the Gola of P. W. 5 He took into consideration, obviously under Sec.30 of the Evidence Act the confession of the co-accused, Gulli, implicating this petitioner as well and on the strength of it, he drew an inference about the petitioner that he was in joint possession of the coils of rope with the knowledge that they were stolen properties. The learned court of appeal below has confirmed the findings of the learned that court. 6. Learned counsel, Shri Bisheshwar Prasad Sinha, appearing for fee petitioner has contended that both the courts below have treated the confession of the co-accused as evidence against the petitioner and this is not permissible under the law. His contention appears to be quite sound. The confession of a co-accused can be only taken into consideration to lend support to any other evidence on which the guilt of an accused can be inferred, but such a confession cannot be treated as evidence against another accused. 7. His contention appears to be quite sound. The confession of a co-accused can be only taken into consideration to lend support to any other evidence on which the guilt of an accused can be inferred, but such a confession cannot be treated as evidence against another accused. 7. As regards the mere presence of the petitioner on the rickshaw, along with Gulli it is contended on behalf of the petitioner, that the rickshaw was plying for hire and the petitioner had boarded it independently of Gulli not having any knowledge that there were on the rickshaw any stolen goods It is urged that mere presence of the petitioner by itself is no conclusive circuumstance of his joint possession of the stolen goods with the knowledge that they were so The presence of the petitioner with Gulli on the rickshaw with some stolen goods is no doubt highly suspicious against the petitioner as well, but this circumstance by itself is not incompatible with his innocence. He may, after all have been a way-farer having boarded the rickshaw independently of Gulli without having any knowledge that there was any stolen property on it. Now if the confession of the co-accused as against this petitioner is not to be treated as an evidence against him the aforesaid circumstance of his presence on the rickshaw is not sufficient to fasten the guilt on him. As I have already said the confession of a co-accused cannot by itself be treated as evidence against the petitioner, although it can be taken into consideration in support of any other independent evidence. 8. In the circumstances of the case, the petitioner must have to be given the benefit on doubt. In the result, the application is allowed! and the conviction and the sentence of the petitioner are set aside.