Madras High Court · 2025

Crl.RC(MD) No.1177 of 2025 ORDER Heard Mr.S.Balaji Nivas, learned counsel for petitioner and Mr.A.Thiruvadikumar, learned Additional Public Prosecutor for respondent.2. The present Criminal Revision Case is filed challenging the dismissal of the discharge petition filed by the petitioner in Crl.M.P. No.18 of 2025 in S.C.No.320 of 2024, on the file of Additional District and Sessions Judge, Padmanabhapuram, dated 31.07.2025 on the premise that as sufficient materials/evidence are available on record to frame charges against petitioner under Sections 331(4), 332(a), 308(2) and 311 of BNS, petitioner is not entitled to be discharged. 3. Learned counsel for petitioner would submit that the only material available is the joint confession statement of Accused Nos.1 and 2 and petitioner/Accused No.3 has been implicated for offences under Sections 61(2) and 317(5) of BNS, r/w. Section 3(5) of BNS.2/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 4. Learned counsel for respondent would submit that at the stage of framing charges, Court is only required to see whether a prima facie case exists. The learned Sessions Judge has rightly held that incriminating materials are available against Accused No.3. Learned counsel for respondent would further submit that as held in the judgment of Supreme Court in the case of Union of India v. Prafulla Kumar Samal, reported in (1979) 3 SCC 4 and State of Tamil Nadu v. N.Suresh Rajan, reported in (2014) 11 SCC 709, discharge can be ordered only if the allegations are groundless. In this case, grave suspicion arises from the evidence which warrants framing of charge. 5. Before proceeding further, it may be relevant to extract the relevant portion of the charge sheet that implicates the petitioner as Accused No. 3, which is extracted hereunder: “1tJ vjphp khDnfhz;l mdpy;Fkhh; 2tJ vjphp ghh;j;jpgdplk; fj;jpia nfhLj;J 2tJ vjphp ghh;j;jpgd; rhl;rp-2 Nkhfd;jh]pd; fOj;jpy; fj;jpia itj;J vq;fSf;F Njit eifAk; gzKk; vLj;J it vd mr;RWj;jp kpul;lNt rhl;rp-1 Mh;j;jp tPl;bd; Kd;G cs;s mYtyf miwapd; Nki[ buhahpy; ,Ug;gjhf $wNt 1k; vjphp &.14>13>523/- kjpg;Gs;s 3/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 47 gTd; jq;f eiffisAk; &.1>00>000/- (xU yl;rk;) gzj;ijAk; nfhs;isabj;J vLj;J nrd;Wk; 3tJ vjphp Rg;ukzp vd;gthplk; nfhLj;J 3tJ vjphpahdth; jpUl;L nrhj;J vd njhpe;Jk; mij thq;fp tpw;f Kaw;rp nra;Js;s Fw;wr;nray; Ghpe;Js;;shh;fs;. vdNt 1k; vjphp khDnfhz;l mdpy;Fkhh; 2tJ vjphp ghh;j;jpgd; MfpNahh; rl;lg;gphpTfs; 61(2), 308(2), 331(6), 332(b), 311 r/w 3(5) BNS-gbAk; 3tJ vjphp Rg;ukzp rl;lg;gphpT 61(2), 317(5) r/w 3(5) BNS-gbAk; jz;bf;fj;jf;f Fw;wk;Ghpe;jth;fs; Mthh;fs;.” 6. From a reading of the above charge sheet, it is clear that Accused No.3 had no role to play, insofar as robbery is concerned, it was indisputably committed only by Accused Nos.1 and 2. That being the case, Section 3(5) of BNS could not be attracted inasmuch as it requires the act of robbery to be committed by several persons in furtherance of their common intention to commit the criminal act of robbery. In the present case, it is not even the prosecution’s case at any stage that Accused Nos.1, 2 and 3 had common intention to commit robbery and certainly not Accused No.3. In the absence of the essential ingredients necessary to constitute an offence under Section 3(5) of BNS, being shown to exist even prima facie, the discharge petition filed by the petitioner ought to have been allowed.4/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 7. With regard to criminal conspiracy , Section 61 (2) of BNS deals with the offence of criminal conspiracy, the relevant provision reads as under:(cid:28)61(2) Criminal Conspiracy- When two or more persons agree with the common object to do or cause to be done,(2) Whoever is a party to a criminal conspiracy, (a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provisions is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence;(b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.(cid:29) 8. Here again, there must be a prior meeting of minds. However, there is not even a statement indicating that there was any meeting of minds between Accused Nos.1, 2 and 3 to commit the act of robbery. Thus, the essential ingredient necessary to constitute the offence of criminal conspiracy is conspicuously absent. Consequently, the charge under Section 61(2) of the BNS appears to be contrary to the material on record rather without any basis/grounds. 5/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 9. Now coming to the final charge, viz., Section 317(5) of BNS, which reads hereunder: ''317 (5)-Stolen Property -(5) Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.'' 10. Indisputably, no material was recovered from the petitioner, as all three accused were apprehended separately/individually. The stolen property was not recovered from Accused No.3, nor is there any admissible evidence in law to indicate that the petitioner had, in fact, dealt with the stolen property by concealing, disposing of, or otherwise making away with it, knowing or having reason to believe that it was stolen property. For better appreciation, it is relevant to extract the joint confession statement of Accused Nos.1 and 2 as follows: “gpd;G ,UtUk; mjpfhiy 04.00 kzpf;F jpUtde;jGuk; nrd;W mq;F ,Ue;J vh;zhFsk; nry;Yk; Nuhl;il Ml;fsplk; Nfl;L jpUtde;jGuj;jpy; ,Ue;J ehd; tz;bia Xl;l gpd;dhy; ghh;j;jPgd; cl;fhh;e;J jpUty;yk; nrd;wJk; tz;bia epWj;jptpl;L fhiy 06.00 kzpf;F vh;zhFsk; g];rpy; Vwp kjpak; xU kzpf;F vh;zhFsk; nrd;W mq;fpUe;J 03.00 kzpf;F ghyf;fhL nrd;W 6/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 mq;fpUe;J nghs;shr;rpf;F 05.30 kzpf;F nrd;W mq;fpUe;J jpUg;g+Uf;F ,uT 9 kzpastpy; nrd;W ,uT 10.00 kzpf;F Rg;gpukzp tPl;Lf;F nrd;Nwhk; mq;F itj;J Rg;gpukzpaplk; eiffis fhl;b ghjp eiffis tpw;f nfhLj;Njhk.; kPjp eif vd;dplk; ,Ue;jJ. gzj;ij vz;zp ghh;f;Fk; NghJ xU yl;rk; &gha;f;Fs; ,Ue;jJ. %d;W ehs; fopj;J ehd; ngq;fSh; nrd;W ruj;jhit ghh;j;J ~\hg;gpq; $l;b nrd;W rhkhd;fs; thq;fp nfhLj;Jtpl;L Hotely; Room Nghl;L ,uz;L ehl;fs; ruj;jhtplk; jq;fp ,Ue;J cly; cwT nfhz;Ltpl;L kPz;Lk; ~\hg;gpq; $l;br; nrd;W rhkhd;fs; thq;fp nfhLj;J ifapy; 10>000/- &gha; nfhLj;J tPl;Lf;F mDg;gp itj;Njd;. gpd;G mq;fpUe;J nrd;id te;J ,uz;L ehl;fs; Room Nghl;L jq;fp ,Ue;Njd; gpd;G jpUg;g+h; te;J ez;gd; uh[h tPl;by; 5 ehl;fs; jq;fp ,Ue;Njd;. mq;fpUe;J ehDk; ghh;j;jPgDk; ghz;bNrhp nrd;W xU thuk; Hotely; Room Nghl;L jq;fp ,Ue;J Rw;wp ghh;j;J Hotely; cy;yhrkhf ,Ue;Njhk;. mq;fpUe;J kPz;Lk; jpUg;g+h; te;J %d;W ehl;fs; uh[h tPl;by; jq;fp ,Uf;Fk;NghJ Rg;gpukzp vd;dplk; te;J eiffs; ghjp tpiyf;Fjhd; Nfl;fpwhq;f mjdhy; eiffis tpw;ftpy;iy vd;W nrhd;dhd;. ehDk; eiffis tpw;f nrd;W rhpahd gzk; juhjjpdhy; tpw;fhky; itj;jpUe;Njd;. gpd;G eiffis jpUtde;jGuk; nrd;W tpw;fyhk; vd;W ehq;fs; %d;W NgUk; KbT nra;J mjpy; ehd; nfhQ;rk; eiffis cUf;fp xU nghpa jq;f fl;bAk; ,uz;L rpwpa jq;f fl;bAk; ehd;F jq;f fhapd;fshf cUf;fp itj;Js;Nsd;. me;j eiffSld; jpUg;g+hpy; ,Ue;J 22.08.2024-k; Njjp kjpak; g]; Vwp ,uT kJiuapy; te;J ,wq;fp mq;fpUe;J fspaf;fhtpis g]; Vwp fspaf;fhtpisapy; 23.08.2024-k; Njjp fhiy Rkhh; 06.00 kzpf;F ,wq;fp jpUtde;jGuk; g];i] vjph;ghh;j;J nfhz;bUf;Fk; NghJ jhq;fs; vq;fis gpbj;J nfhz;Bh;fs;.” 7/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 11. From a reading of the above statement, it is stated that Accused Nos.1 and 2 had met Accused No.3, however, there is no corroborative evidence to establish that Accused Nos.1 and 2, as alleged in the said confession statement, had in fact met Accused No.3. Furthermore, as stated supra, the stolen material was not recovered from Accused No.3. In the circumstances, question arises as to whether the confession statement of a co-accused can be the sole basis for conviction. Admittedly, that is the only material available against Accused No.3 that could be used to proceed with prosecuting the petitioner. It is trite law that the confession of a co-accused cannot be treated as substantive evidence and must be corroborated by other material/evidence. The joint confession statement made by the petitioner and the other accused persons may not constitute evidence in terms of Section 3 of the Indian Evidence Act. In this regard, it may be relevant to refer to the following judgments: i) Karan Talwar vs. State of Tamil Nadu, reported in (2024) SCC OnLine 8/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 SC 3803:''10. As is evident from the said section, the alleged offence is consumption of narcotic drug or psychotropic substance other than those specified in or under clause (a) of Section 27, NDPS Act, and therefore, the question is whether any material is available to charge the appellant thereunder. The contention of the appellant is that he has been arraigned as accused No.13 based on the confession statement of co-accused viz., accused No.1. Certainly, in the absence of any other material on record to connect the appellant with the crime, the confession statement of the co-accused by itself cannot be the reason for his implication in the crime. This view has been fortified by the law laid down in Suresh Budharmal Kalani v. State of Maharashtra reported in (1998) 7 SCC 337; 1998 INSC 364, wherein it was stated that a co-accused’s confession containing incriminating matter against a person would not by itself suffice to frame charge against him. The materials on record would reveal that the investigating agency had not subjected him to medical examination and instead, going by complaint Witness No.23, he smelt the accused. The less said the better and we do not think it necessary to comment upon adoption of such a course. We need only to say that even if he tendered such evidence, it would not help the prosecution in anyway. There is absolutely no case that any recovery of contraband was recovered from the appellant. As regards the confession statement of the appellant in view of Section 25 of the Indian Evidence Act, 1872 there can be no doubt with respect to the fact that it is inadmissible in evidence. ...'' 9/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 (emphasis supplied)ii) Siva @ Sivabalan and another Vs State through the Inspector of Police, Panagudi Police Station, Tirunelveli District, reported in (2011) SCC OnLine Mad 2249:''15. ...It is not possible for the respondent herein to improve the case against the petitioners/A5 & A6 without any supporting materials against them and hence, the Court below, while framing charges cannot function as a mere Post Office to frame the charge at the behest of the prosecution. 16. In order to implicate the petitioners subsequently as Accused in the case, there must be materials to show that there is prima facie case made out against them, as held by this Court in the decision referred to above. In the instant case, except the confession statement given by the co-accused, there is no iota of material available on record to attract the ingredients of the offence alleged against the petitioners herein and accordingly I am of the view that the petitioners are entitled to get discharge.'' (emphasis supplied)iii) Pancho vs State of Haryana, reported in (2011) 10 SCC 165:''24. The law on this point is well settled by catena of judgments of this court. We may, however, refer to only two judgments to which our attention is drawn by Mr. Lalit, learned senior counsel. In 10/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 Kashmira Singh v. The State of Madhya Pradesh, referring to the judgment of the Privy Council in Bhuboni Sahu v. The King, and observations of Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chukerbutty, this court observed that proper way to approach a case involving confession of a co-accused is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.25. This court further noted that (Kashmira singh case, AIR P.160 Para.10 10. .......cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be prepared to accept.'' (emphasis supplied)iv) Kashmira Singh vs State of Madhya Pradesh, (1952) 1 SCC 275:''12. Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the "evidence" is not on oath and cannot be tested by cross-examination. Prudence will dictate the 11/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 same rule of caution in the case of a witness who though not an accomplice is regarded by the judge as having no greater probative value.13. But all these are only rules of prudence. So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us bad occasion to examine this recently in Rameshwar -vs- The State of Rajasthan. It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in Bhuboni Sahu v. The King..."The tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger. ....The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused."14. Turning now to the facts of the present case. The evidence on which the prosecution relies, apart from the confession, is this.''12. From the above decisions, it is clear that confession statement of the co-accused by itself cannot be a reason for implication in 12/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 a crime in the absence of any other material corroborating the confession statement. The approach suggested by the Supreme Court in Pancho's case (cited supra) is to exclude the confession statement and marshal the evidence against the accused and then, to see if a conviction could be made. In the present case, it is not in dispute that except the confession statement of the co-accused, the prosecution has not let in any evidence. That, as stated above, would by itself be insufficient to frame a charge against the petitioner/Accused No.3. 13. In view thereof, the impugned order dated 31.07.2025 passed in Crl.M.P.No.18 of 2025 in S.C.No.320 of 2024 on the file of Additional District and Sessions Judge, Padmanabhapuram is set aside and the petitioner is discharged from the proceedings in S.C.No.320 of 2024 on the file of Additional District and Sessions Judge, Padmanabhapuram. 14. With the above observations, this Criminal Revision Case is allowed. Consequently, connected miscellaneous petitions are closed. 05-02-202613/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 gvnTo:1. The Additional District and Sessions Court,Padmanabhapuram, Kanniyakumari District.2. The Inspector of Police,, Thiruvattar Police Station,Nagercoil, Kanyakumari District.3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 14/15 https://www.mhc.tn.gov.in/judis Crl.RC(MD) No.1177 of 2025 MOHAMMED SHAFFIQ, J gvnORDER IN Crl.RC(MD) No.1177 of 202505/02/202615/15