IMPORTANT POINT
Confessions of co-accused are inadmissible without corroborative evidence; mere naming in such confessions does not suffice for indictment.

JUDGMENT :

MILIND N. JADHAV, J.

1. Heard Mr. More, learned Advocate for Applicant and Ms. Shinde, learned APP for Respondent-State. This Revision challenges rejection of Discharge Application of Applicant-Accused No. 4. It was admitted on 11.12.2002 and Trial Courts order was stayed qua the Applicant. Impugned order is dated 02.11.2002.

2. It is seen that there are 13 Accused in the crime which has been registered. The Applicant before me is Accused No. 4 whose name is Kisan Soma Sathe.

3. First Information Report (for short “FIR”) came to be filed by Original Complainant, Mr. Firoz Mohammad Sultan on 12.01.1993 alleging that 15 persons with deadly weapons brandishing swords, iron rods and sticks entered the premises of Blue Steel Company, Road No. 20, M.I.D.C. Mumbai and assaulted the watchmen Mr. Soheb Khan and Mr. Naushad Soheb Khan. Soheb Khan was killed on the spot whereas Naushad Soheb Khan succumbed to his injuries later at about 5:30 p.m. In a further assault one more person namely Mr. Irfan Sadikali Ansari was also assaulted leading to his death.

4. Date of incident i.e. 12.01.1992 incidentally is the time when the entire city of Mumbai was affected and gripped by communal riots in the year 1993. First informant Mr. Firoz Mohammad Sultan lodged the Complaint vide C.R. No. 26 of 1993 about 9:30 p.m. of the same day. He was working in Noble Electric Company, Andheri nearby. Incident occurred in the premises of Blue Steel Company at M.I.D.C. Andheri. Complaint is lodged against 15 unknown persons wherein First Informant-Complainant has given description of about 8 persons in his FIR. In the Test Identification Parade, Complainant identified some of the Accused.

5. Five of the Accused were arrested who recorded their confessional statement before 3 panch witnesses on 19.01.1993, resulting in recovery of weapons under Section 27 of the Indian Evidence Act, 1872. These five co-accused are Accused No. 2-Mr. Vishnu Shivalkar, Accused No. 10-Mr. Chandu Vani, Accused No. 1-Mr. Sunil Shivalkar, Accused No. 12-Dashrath Nivale and Accused No. 7-Anand Naik.

6. Mr. More, learned Advocate for Revision Applicant would argue that in the present case name of Applicant has been stated by the above 5 accused persons who were apprehended and arrested for the crime and from whom weapons have been recovered.

7. He would submit that name of Applicant is not stated in the FIR, nor he was arrested alongwith the original 8 accused persons and most importantly when the charge-sheet is filed name of the Applicant is also not reflected therein. He would submit that while recording recovery panchanama of the alleged weapons used by accused, the name of Applicant is reflected therein for the first time being taken by the above 5 accused as one of their accomplice. He would submit that even in those statements there is no role attributed to the Applicant. He would submit that the voluntary statements of the 5 accused persons where name of Applicant is stated are recorded at 21:15 hours in the Tadipar room of M.I.D.C. Police Station, Andheri in the presence of the Police Officers for recovery of alleged weapons used and subsequently hidden by the said 5 accused. He would submit that by order dated 11.12.2002, this Court had stayed the trial for Applicant, which is still in operation.

8. He would submit that in that order this Court has prima facie come to the conclusion that no case whatsoever is made out against the present applicant. He would submit the fact that in the entire charge-sheet the name of Applicant is not reflected deserves due consideration by the Court. He would submit that no role or use of weapon whatsoever is attributable to the present Applicant in any of the prosecution pleadings and there is no recovery of any weapon from the Applicant. He would submit that merely because Applicant has been named by the 5 accused persons in their voluntary confessional statements during recording of recovery panchanama, the veracity of those statements in