Madras High Court
M.Sakubar Sadik .. Revision vs The State Rep. By
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.07.2017
PRONOUNCED ON : .05.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Criminal Revision Case No.693 of 2017
M.Sakubar Sadik .. Revision Petitioner/Accused-5
Versus
The State rep. by
The Inspector of Police,
S-2, Airport Police Station,
Kancheepuram District.
Crime No.23 of 2013
.. Respondent/Complainant
Criminal Revision filed under Section 397 r/w Section 401 of Cr.P.C. praying to call for the entire records relating to the order dated 09.01.2017 in Crl.M.P.No.395 of 2015 in S.C.No.167 of 2014 on the file of the learned Additional District & Sessions Judge, Chengalpattu and set aside the same.
For Revision Petitioner : Mr.G.Magesh Kumar
For Respondent : Mr.R.Sekar, GA (Crl.side)
O R D E R
This Criminal Revision Case has been filed against the order passed by the learned Principal Sessions Judge at Chengalpattu in Crl.M.P.No.395 of 2015 in S.C.No.167 of 2014 by order dated 09.01.2017.
2.The revision petitioner is A5 in the said Sessions Case where, charge sheet has been laid by the respondent police before the Court below, for the alleged offences punishable under Sections 364(A), 365, 392 of IPC read with Section 34 of IPC. The revision petitioner had filed the discharge petition, to discharge him from the charges set out above under Section 227 of the Code of Criminal Procedure, which after having been considered by the lower court, was rejected through the impugned order dated 09.01.2017, as against which, the present Criminal revision case has been filed.
3. The case of the petitioner as projected before the Trial Court, by filing the discharge petition, are as follows:
(i) It was the case of the prosecution that, four other accused in the said case were Sri Lanka nationals along with them, the petitioner in pursuance with the common intention, had involved in the crime punishable under Sections 364(A), 365,392 of IPC read with Section 34 of IPC.
(ii) The main allegation against the petitioner, according to the prosecution is that, the petitioner sold three number of sim cards to A3 by getting Rs.1,000/- which is in fact the higher value, than the actual value of the sim cards, that too without having any residential proof for A3 and having known the fact that the A3, along with other accused had an intention to commit some crime. Since knowingly, this petitioner, who is A5 in the case had sold the sim cards, according to the prosecution, the petitioner also had been in involvement of the said crime committed by the accused in furtherance of the common intention to kidnap the witness (P.W.3) for ransom and also for robbery and that is how along with other accused persons, the petitioner also had been shown as accused/A5 and had been arrested.
4. In this regard it is the case of the petitioner that, the petitioner had never involved in any crime, as alleged by the prosecution, punishable under Sections 364(A), 365,392 of IPC read with Section 34 of IPC. It is also the case of the petitioner that, there is no specific overt act against this petitioner except the only allegation that he sold out three number of sim cards to A3 to contact one Nazar, who alone sent the P.W.3 to India, who had been allegedly kidnapped by A1 to A4. It is the further case of the petitioner that, the said Nazar has not been examined nor the prosecution had established the case that A3 contacted the Nazar over phone only by using the sim card sold by this petitioner/A5 to A3 and also the alleged sim card sold by this petitioner to A3, has not been seized by the prosecution.
5. It is the further case of the petitioner that, even though nine witnesses have been shown by the prosecution supporting the prosecution case, none of the witnesses, on behalf of the prosecution, speaks about the involvement of this petitioner/A5 in the alleged crime and therefore on these grounds, the petitioner filed the discharge petition before the court below, invoking the provision of Section 227 of the Code of Criminal Procedure.
6. Opposing the said move of the petitioner, it was the case of the prosecution before the court below during the hearings of the discharge petition that, it is in the confession statement of A3, he had stated that, he, after having made known of all the facts that they belong to Sri Lanka and they were in need of sim cards to bring a person in deceiving manner, the sim cards were bought. It is the further confession statement of A3 that, the said sim cards were received from this petitioner/A5 by giving huge amount of Rs.1,000/- as against the original low cost of Rs.300/- that too without submitting any valid identification proof. Therefore, the petitioner issued the sim cards knowingly that it would be used to commit some cognizable offence.
7. It is the further case of the prosecution in opposing the discharge petition before the Trial Court that, it is for the prosecution to prove the case, as the burden of proof of the prosecution theory lies only on the shoulders of the police, who would prove the crime committed by the petitioner and moreover, since the petitioner himself admitted that mere issuance of sim cards to A3, it cannot be presumed that he had any nexus to the alleged offence, that itself would prove the involvement of the petitioner in this crime.
8. The further case of the petitioner that there is no overt act against the petitioner was denied by the prosecution. However, since the issuance of sim cards by the petitioner to A3 without any valid proof was an offence, because that sim card alone gave access to A1 to A4, to enter into the crime against society. Therefore, it is the further case of the prosecution in opposing the discharge petition filed by the petitioner before the lower court that, the said Nazar at Sri Lanka was contacted by the accused persons 1 to 4, only by using the sim card given by this petitioner/A5 to A3 and pursuant to such contact only, the said Nazar sent the P.W.3 to India, who had been kidnapped by the A1 to A4 and therefore, on that score the said sim card issued by this petitioner/A5 since has been utilised for the commission of the offence, this petitioner also had been guilty of the offence.
9. By stating the aforesaid reasons, the prosecution opposed the petition for discharge filed by the petitioner before the Trial Court.
10. The Trial Court after considering the case of the petitioner as well as the prosecution/State has ultimately, come to the conclusion that, in view of the confession statement given by A3 stating that the sim cards were given by the petitioner/A5 after fully knowing the fact that the accused persons are Sri Lankan nationals and they did not have any identification proof for getting the sim cards and that such sim cards, if it is given that may be utilised by the accused to contact some persons to bring back to India and after knowing well all these factors only the said sim cards have been given by the petitioner/A5 and therefore, based on the confession statement given by the co-accused especially A3, there are materials against the petitioner to proceed, pursuant to the charge and therefore, on that ground, the learned Judge was not inclined to accept the case of the petitioner for discharge and accordingly, the discharge petition was dismissed.
11. I have heard the learned counsel for the petitioner and the learned Government Advocate (Crl.side) appearing for the respondent/prosecution.
12. Learned counsel for the petitioner would submit that first of all, the alleged offences as per the charge sheet, has not spoken about the involvement of the petitioner in any manner except the statement that the petitioner had sold the three sim cards to A3. He would further submit that based on the mere confession statement of the co-accused no one can be brought into charge without any materials. Learned counsel would further submit that, the alleged sim card said to have been given by the petitioner/A5 to A3, which was allegedly used for contacting the person called Nazar at Sri Lanka which alone driven him to send the P.W.3 to Chennai, who has been allegedly, kidnapped, has not at all been seized.
13. Learned counsel for the petitioner would further submit that as per the import of Section 227 of the Code of Criminal Procedure, unless there is sufficient ground for proceeding against the accused, the Trial Judge shall discharge the accused after recording his reasoning for doing so. Here in the case in hand, according to the learned counsel for the petitioner, absolutely there is no ground to proceed against the petitioner, nevertheless, the learned Trial Court Judge after having taken note of the prosecution case to state that based on the confession statement given by the co-accused, the petitioner had been roped in the crime and accordingly, charge sheet has been filed also, had come to a wrong conclusion that there are materials against the petitioner to be proceeded with and therefore, came to a wrong conclusion that the petitioner is not entitled for getting discharged from the charge.
14. In support of this contention, learned counsel for the petitioner would rely upon the following decisions:
(i) CDJ 1964 SC 042 in the matter of Hari Charan Kurmi & Another vs. State of Bihar (Crl.A.Nos.208 & 209 of 1963)
(ii) CDJ 2011 Allahabad High Court 514 in Crl.Mis.C.No.781 of 2009 in the matter of Dr.Raj Kumar Chaudhary vs. State of U.P. And another
(iii) CDJ 2017 Bombay High Court 076 in Crl.Rev.App.Nos. 383 & 377 of 2016 in the matter of Sumeet Ganpatrao Bachewar & Another vs. The State of Maharashtra and Another.
15. By relying upon these decisions, the learned counsel for the petitioner would submit that the principles underlined in these cases would squarely be applicable to the facts of the present case and therefore, the impugned order of rejection of discharge petition filed by the petitioner, shall be interfered with and the revision case may be allowed.
16. Per contra, Mr.Sekar, learned Government Advocate (Crl.side) appearing for the respondent would submit that in so far as the charge made against the petitioner is concerned, with the common intention of committing the crime as alleged by the prosecution, the petitioner had sold the sim cards to A3 knowing well that the other accused persons are Sri Lankan nationals and they have no identification at all as a proof of claim, for purchasing the sim cards, which is the basic requirement for selling the sim cards. He would further submit that this petitioner/A5 after having fully known the fact that, these Sri Lankan nationals in order to commit the crime after having conspired with themselves, had come forward to purchase the sim cards and had explained their position and therefore, knowingly since the sim cards will be used by the other accused to commit the crime, had sold the same. Therefore, certainly this petitioner had an intention to involve in the said crime along with other accused and therefore, the ingredients of Section 34 of IPC are very much available in this case and therefore, whatever the offence committed by A1, A2, A3 and A4 for which, the petitioner also equally be liable to be prosecuted as they all had a common intention among the accused persons and the said common intention since have been proved, prima facie, on the confession statement given by the other accused implicating the petitioner, prima facie, the prosecution case was accepted by the learned Judge as the proof of prosecution case beyond reasonable doubt cannot be expected at the stage of filing the charge and therefore, the discharge petition was rightly rejected by the learned Judge and it does not require any interference from this Court.
17. I have considered the said submissions made by the learned counsel on both sides. I have perused the charge sheet filed against the accused persons including the petitioner where, the charge made against this petitioner, who was shown as A5 reads thus:
A5 vjphpahdth; nkw;go bray; jpl;lj;jpw;F Jizahd vjphpfs; A1 to A4 ,y';ifia nrh;e;jth;f;s. ,y';ifapypUe;J xUtiu Vkhw;wp tutiHf;f rpk;fhh;L nfl;fpd;wdh; vd;W bjhpe;nj U:/300 kjpg;g[s;s rpk;fhh;Lfis U:/1000-?w;F mjpf tpiy ngrp 3 rpk;fhh;Lfis bfhLj;J vjphpfspd; Fw;w braYf;F cWJizahf ,Ue;Js;shh;/ vdnt ,jd; vjphpfs; A1 to A4 jpU/ghf;fpauh$; bghz;dq nfhid fhhpy; flj;jp brd;W ,uz;L ehl;fs; milj;J itj;J gzk; bjhif nfl;L kpul;o mthplkpUe;J j';f eiffis gwpj;jikf;fhf gphpt[ 364(A), 365, 392 IPC?d;go jz;of;fg;gl ntz;oa Fw;wk; g[hpe;jtuhf fUjg;gLfpwhh;/ nkYk; A5 vjphp Fw;w braYf;F cjtpahf ve;jtpj MjhuKkpd;wp ? 3 rpk;fhh;Lfis bfhLj;Js;shh;/ vdnt vjphpahdth; gphpt[ 364(A), 365, 392 IPC r/w 34?apd;go jz;of;fg;gl ntz;oatuhfpd;whh;/ ,Jnt Fw;wk;/
18. I have also gone through the list of witnesses filed by the prosecution along with the charge sheet. According to the list of witnesses, totally nine witnesses have been cited on behalf of the prosecution and on considering the same, this Court finds that none of the witness would speak about the involvement of the petitioner/A5. To appreciate better in this aspect, the list of witnesses and their proposed area of deposition as projected by the prosecution is extracted hereunder:
rhl;rpa';fspd; gl;oay;
v!;2 tpkhd epiya fhty; epiya F/vz;/23-2013 u/s 364(A), 365, 392 IPC r/w 34 IPC rhl;rp 1 jpU/nuhfd; la!;. fhd;rpyh; ,y';if Jiz Jhjuf mYtyfk;. vz;/56. !;blh;yp!; nuhL. E';fk;ghf;fk;. brd;;id?34 jpU/ghf;fpauh$; bghz;Dnfhd; fhzhky; nghdJ gw;wpa[k;. E';fk;ghf;fk; fhty; epiyaj;jpy; rk;gtk; gw;wp g[fhh; bra;jJ gw;wp bjhptpg;ghh;/ rhl;rp 2 jpU/.mfkj; taJ 45. fhd;rpyh; brf;cpd; bghWg;ghsh;. ,y';if Jiz Jhjuf mYtyfk;. vz;/56. !;blh;yp!; nuhL. E';fk;ghf;fk;. brd;id?34/ :
rk;gtj;ijg; gw;wpa[k;. jpU/ghf;fpauh$; bghz;Dnfhd; fhzhky; nghdJ gw;wp bjhptpg;ghh;/ rhl;rp 3 jpU/ghf;fpauh$; bghz;Dnfhd; taJ 59.j-bg ehuhaz rpd;idah. vz;/.7. rrpd; bjU. fughd;. tpf;nlhhpah. M!;jpnuypah :
rk;gtk; gw;wp. jd;id flj;jp brd;W milj;J itj;J jd;dplk; ,Ue;j eiffis gwpj;jJ gw;wp bjhptpg;ghh;/ rhl;rp 4 jpU/khhpKj;J taJ 37. j-bg ntdqnfhghy;. vz;/22-32. 10tJ bjU. gp/tp/efh;. e';fey;Yh;. brd;id?61 :
A1 Kjy; A4 vjphpfs; xg;g[jy; thf;FK:yk; gw;wpa[k;. brhj;Jfis ifg;gw;wpaJ Fwpj;Jk;. xg;g[jy; thf;FK:yk;. kf$hpy; ifbahg;gk; gw;wp bjhptpg;ghh;/ rhl;rp 5 jpU/jdnrfh; taJ 39. j-bg/khzpf;fk;. vz;/3. g[J vz;/4. 15?tJ bjU. gp/tp/efhh;. e';fey;Yhh;. brd;id?61 :
A1 Kjy; A4 vjphpfs; xg;g[jy; thf;FK:yk; gw;wpa[k;. brhj;Jfis ifg;gw;wpaJ Fwpj;Jk;. xg;g[jy; thf;FK:yk;. kf$hpy; ifbahg;gk; gw;wp bjhptpg;ghh;/ rhl;rp 6 jpU/uh$;Fkhh; khh;fz;ld; taJ 35. j-bg/fnzrghz;oad;. vz;/2-AR Complex, GST nuhU. jhk;guk; rhz;nlhhpak;. brd;;id :
vjphpfs; rk;gtj;jpw;F cgnahfpj;j ,ndhth fhh; thliff;F vLj;jij gw;wp bjhptpg;ghh;/ rhl;rp 7 jpU/P.khhpKj;J taJ 37. j-bg/gjpbel;lhd;. vz;/MM Jewelers, No.1, NSC ngh!; nuhL. g{ fil. brd;id ? 1 :
vjphpfs; bfhLj;j jpUl;L eiffis fhty; Ma;thsh; mth;fsplk; M$h; bra;jJ gw;wp bjhptpg;ghh;/ rhl;rp 8 jpU/rptFkhh;. fhty; Ma;thsh;. F3, E';fk;ghf;fk; fhty; epiyak;. brd;id :
F3 E';fk;ghf;fk; fhty; epiya Fw;w vz;/432-2013 U/s Man Missing tHf;F gjpt[ bra;Jk;. tprhuiz bra;J tHf;if S-2 tpkhd epiya fhty; epiyaj;jpw;F khw;wk; bra;jJ gw;wp bjhptpg;ghh;/ rhl;rp 9 M.kfpik tPud;.
fhty; Ma;thsh;.
S-2 tpkhd epiya fhty; epiyak;.
kPdk;ghf;fk;. brd;id?27. brd;id :
rk;gtk; Fwpj;J tHf;F gjpt[ bra;J tprhuizf;F vLj;J bfhz;L vjphpfis ifJ bra;J. jpUl;L brhj;Jfis ifg;gw;wpa[k;. vjphpfs; kPJ ,Wjp mwpf;if jhf;fy; bra;jJ gw;wp bjhptpg;ghh;/
19. In fact, according to the prosecution, they roped the petitioner in this crime mainly based on the confession statement given by the co-accused especially A1 and A3. A1, in his confession statement alleged to have stated as follows:
gpd;dh; nkw;go ehrh; kw;Wk; rk;gj; ,nj bjhHpy; bra;J tUtij bjhpe;J gzj;ij nfl;Lk; mth;fsplkpUe;J rhpahd gjpy; ,y;iy/ vdnt gzj;ij bgw ntz;oa[k;. nkYk; vd;id Vkhw;wpath;fis gHp th';f ntz;Lk; vd;w vz;zj;Jld; vd;Dld; nrh;e;J Vkhh;e;j Jthd; fgPh; vd;gtUila ikj;Jdh; KfkJ uk;$hd; vd;gthplk; ehd; ngrp K:d;W rpk; fhh;l;Lf;s Vw;ghL bra;a[k;go nfl;Lf;bfhz;nld;/ nkw;go KfkJ uk;$hd; vd;gth; <!;l; bt!;l; onulh;!;. vz;/61. kd;do bjU. kd;do. brd;id?1 vd;w epWtdj;jpd; chpikahsh; rFgh; rhjpf; vd;gtiu mdqfp xU rpk; fhh;L U:/300-? mjpf tpiy ngrp bkhj;jk; U:/1000-? bfhLj;J. eh';fs; ,y';ifia nrh;e;jtd; vd;Wk; v';fsplk; ve;j milahsKk; ,y;iy vd;Wk;. v';fSf;F ,y';ifapy; ,Ue;J xUtiu Vkhw;wp tuitf;f rpk;fhh;L njitg;gLfpwJ vd;W Twpajpy; mth; mjw;F rk;kjpj;J gzk; bfhL jUntd; vd;W Twp K:d;W rpk; fhh;Lfs; KfkJ uk;$hd; vd;gthplk; bfhLf;f me;j rpk; fhh;l;Lfis mth; vd;dplk; bfhLj;jhh;/ ehd; nkw;go rpk; fhh;Lfis gad;gLj;jp vd; bgah; hprh;l; o/rh;kh vd;W bgahpy; bjhlh;g[bfhz;L ,y';ifapypUe;J Jgha;f;F ntiyf;F Ml;fs; mDg;g ntz;oa[s;sJ vd;W Twp ehrh; vd;gtiu ,e;jpahtpw;F tu brhy;yp nfl;Lf;bfhz;nld;/
20. A3 in his confession statement has stated as follows:
gpd;dh; nkw;go epWtdj;ij nrh;e;j ehrh; kw;Wk; rk;gj; Mfpnahh; bjhlh;e;J ,nj bjhHpy; bra;J tUtij bjhpe;J b$apd; bksyhdh vd;gth; gzj;ij nfl;Lk; mth;fsplkpUe;J rhpahd gjpy; ,y;iy/ vdnt gzj;ij bgw ntz;oa[k. nkYk; gHp th';f ntz;Lk; vd;w vz;zj;Jld; b$apd; bksyhdh vd;gth; vd;dplk; ngrp K:d;W rpk; fhh;l;Lfs; Vw;ghL bra;a[k;go nfl;Lf;bfhz;lhh;/ ehd; <!;l; bt!;l; onulh;!;. vz;/.61. kd;do bjU. kd;do. brd;id?1 vd;w epWtdj;jpd; chpikahsh; rFgh; rhjpf; vd;gtiu mDfp xU rpk; fhh;;l; U:/300-? mjpf tpiy ngrp bkhj;jk; U:/1000-? bfhLj;J. eh';fs; ,y';ifia nrh;e;jtd; vd;Wk; v';fsplk; ve;j milahsKk; ,y;iy vd;Wk;. v';fSf;F ,y';ifapy; ,Ue;J xUtiu Vkhw;wp tuitf;f rpk; fhh;l; njitg;gLfpwJ vd;W Twpajpy; mth; mjw;F rk;kjpj;J gzk; bfhL jUntd; vd;W Twp K:d;W rpk; fhh;Lfs; vd;dplk; bfhLf;f me;j rpk; fhh;l;Lfis ehd; b$apd; bksyhdhtplk; bfhLj;njd;/ mth; nkw;go rpk; fhh;l;Lfis gad;gLj;jp jd; bgah; hprh;l; o/rh;kh vd;w bgahpy; bjhlh;g[bfhz;L ,y';ifapypUe;J Jgha;f;F ntiyf;F Ml;fs; mDg;g ntz;oa[s;sJ vd;W Twp ehrhh; vd;gtiu ,e;jpahtpw;F tu brhy;yp nfl;Lf;bfhz;lhh;/
21. From the reading of the aforesaid confession statement alleged to have been given by the co-accused persons, it is observed that only based on the said alleged confession statement, the petitioner has been roped in, by stating that, the petitioner, after having known the fact that the other accused persons are not Indian nationalists, as they are claimed to be Sri Lankan and they do not have any valid identification proof to purchase the sim cards, the petitioner had given three sim cards to them, after collecting higher value than the actual value of the sim cards and therefore, the petitioner also knowingly, sold the sim cards to these accused persons which were used for the purpose of interacting with one Nazar who, in turn sent the P.W.3 to India, who had been allegedly kidnapped.
22. Whether any other documents or materials had been filed by the prosecution before the Trial Court to substantiate these allegations is concerned, no other materials had been filed including the alleged sim card, which was allegedly used for the purpose of inviting the persons from Sri Lanka and also there is no evidence to show, prima facie, that the petitioner also had a common intention to make the crime along with other co-accused persons.
23. In these circumstances, whether the petitioner can be roped in to the case for the alleged crime mainly based on the confession statement of the co-accused is yet another issue where, it is the vehement contention of the learned counsel for the petitioner that mere confession statement will not entitle the prosecution to bring anyone into the charging area and in this regard, he has cited the aforesaid judgments.
24. In so far as the judgment of the Honourable Apex Court cited by the learned counsel for the petitioner in CDJ 1964 SC 042 is concerned, the said judgment was given as against the final judgment on confession, made by the Trial Court where the accused were convicted and punished under Section 396 of IPC. In the said case, the Honourable Apex Court has reversed the said conviction. Further, here in the case in hand, the Trial is yet to be commenced and it was only a discharge petition under Section 227 of the Code of Criminal Procedure and therefore, the principle cited in the said judgement cited supra may not be applicable to the present case. However, in so far as the other two cases referred to by the learned counsel for the petitioner is concerned, on examination of the principles laid down in those cases, this Court is of the view that the principles laid down in these two cases can usefully be referred to and be pressed into service.
25. In so far as the case in CDJ 2011 ALL HC 514 is concerned, the learned Judge in the said case has held as follows:
" 19. The learned counsel for the petitioner in support of his submission that charge can not be framed merely upon confessional statement of co- accused relied on the case of Baldev Kumar Vs. State reported in 1987 (3) Crimes 645, wherein Hon'ble High Court Delhi while dealing with a case of framing of charges against petitioner therein on the basis of the statement of the co-accused had allowed the petition for quashing the proceeding by observing as under :-
"From the perusal of the report, I find that the court below went wrong in relying on the confessional statement of the co-accused Hari Dayal, to frame a charge against the petitioner. Prima facie, the court cannot act upon the confessional statement of the co-accused unless and until the said statement finds corroboration in material particulars by independent evidence. There is no independent evidence what to talk of any evidence against the petitioner"
20. Thus the legal position is clear that confessional statement of co- accused can not be the basis of framing charge against an accused but can only be used to lend assurance to other evidence against a co-accused and cannot be elevated to the status of substantive evidence. In the present case the factual position is that except the aforesaid statement of Dr. Ajit Singh (accused No.17) which is imaginary and is in the nature of hearsay, there is nothing on record which may implicate the petitioner in the offence in question and can be the basis of framing the charges"
26. In respect of CDJ 2017 BHC 076 cited supra is concerned, the learned Judge has held as follows:
"27. On this aspect, it is essential to quote judgment of the Hon'ble Apex Court in the matter of Kashmira Singh vs. State of Madhya Pradesh reported in AIR 1952 SC 159. In the said case, the Hon'ble Supreme Court has observed that confession of the co-accused cannot be called in aid to frame the charge against the accused, in absence of any other evidence to do so. This verdict of the Hon'ble Supreme Court is followed by this court in case of Laxmi Koli Babita (supra) which is followed in Virbhadram Vyankanna Guggalot vs. State of Maharashtra reported in 2008 avk 42/77 REVNS-383-2016-377-2016.doc ALL MR (Cri) 203. In order to give finding on this aspect, one will have to consider the remaining part of the evidence pressed in service against revision petitioner / accused no.4 Sumeet Bachewar, which according to the learned Addl. Public Prosecutor is regarding indulging in the criminal conspiracy with co-accused for liquidating Sunil Kumar Lahoria."
27. So, the principle as emerged from the afore cited judgments is that, it may not be possible for the prosecution to build up the case only based on the alleged confession statement given by the co-accused without any other supporting materials either by way of oral evidence or by documentary evidence.
28. In the case in hand, except the confession statement of A1 to A3 nothing has been shown by the prosecution to involve the petitioner in the alleged crime.
29. That apart, it is the definite case of the prosecution that the petitioner after knowing the fact that the accused persons are Sri Lakan citizens and they do not have any identification proof which is an essential document to purchase the sim cards, and after having known to the fact that on getting the sim cards, the other accused persons will do some crime by inviting the person from Srilanka for the purpose of kidnapping for ransom and by knowingly the petitioner had given/sold the sim cards and therefore, he had also involved in the case with a common intention of committing the offence along with other accused persons.
30. This creates the doubt while assessing the charge against the petitioner as the prosecution has not given any evidence to the effect that the petitioner only had sold the sim cards directly to the accused persons especially to A3. Infact after collecting higher amount i.e., instead of Rs.300/- he collected Rs.1,000/-, therefore, it is observed that the petitioner had sold the sim cards after collecting higher money.
31. Except the above, nothing had been shown against the petitioner's involvement in the crime except selling of sim cards to other co-accused persons. Once the sim cards have been sold for higher value to the other accused persons by the evidence of the co-accused, this court feels that, the theory of the prosecution that the petitioner had the common intention with other co-accused persons who involved in the crime, has been completely shattered.
32. The reason being that, any person, who wants to commit the crime with others with a common intention would not have been benefited during the course of crime by demanding money for any act done or purported to be done. Therefore, the prosecution theory itself show that, there is no prima facie case against the petitioner to rope in the petitioner in the alleged crime that too for the offence punishable under Sections 364(A), 365,392 of IPC read with Section 34 of IPC.
33. Moreover, it is not the prosecution case that, the petitioner had involved in any of these offences committed by other co-accused persons. It is also not the case of the prosecution that the petitioner had involved in the crime except the selling of sim cards to A3 that too on the basis of the alleged confession statement given by the accused A1 and A3. The genunity of confession statement before police is well known to every one and this factor has not been taken into account in proper perspective by the Trial Court while rejecting the present petition for discharge, filed by the petitioner.
34. Therefore, considering all these reasons that the prosecution has not even established the prima facie case against the petitioner, none of the witnesses cited by the prosecution as listed out along with the charge sheet, had spoken about the involvement of the petitioner and there is no other materials except the alleged confession statement connecting or involving the petitioner in the alleged crime, this Court is of the view that the prosecution has not made out a prima facie case against the petitioner to try the charges for the alleged offences punishable under Sections 364(A), 365,392 of IPC read with Section 34 of IPC. Therefore, this Court has no hesitation to hold that the petitioner is entitled to get discharged from the charges and accordingly, the petitioner succeeds in this revision.
35. In the result, the impugned order of the court below is set aside and this Criminal Revision Case is allowed.
.05.2018
Index :Yes/No
Speaking order/Non-speaking order
smi
To
1.The Additional District &
Sessions Judge, Chengalpattu
2.The Inspector of Police,
S-2, Airport Police Station,
Kancheepuram District.
3. The Public Prosecutor,
High Court, Madras.
R.SURESHKUMAR, J.
smi
Pre-Delivery Order in
Crl. R.C.No.693 of 2017
.05.2018