Confession of a co-accused is inadmissible against a non-present accused in the absence of corroborative evidence.

THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR Crl OP No.5889 of 2026 and Crl MP Nos.4353 & 4354 of 2026 S.Arunkumar ... Petitioner vs

1. The State Rep by The Inspector of Police, R-4, Soundarapandiyanar Angadi Police Station, Pondy Bazaar, T.Nagar, Chennai – 600 017.

2.Viswanath .... Respondents Prayer : Criminal Original Petition filed under Section 528 of BNSS , 2023, to call for the records in CC No.1052 of 2020 pending on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai, and quash the same insofar as the petitioner is concerned.

For Petitioner : Mr.S.Veeraraghavan for Ms.G.Uma Maheswari For R1 : Mr.Leonard Arul Joseph Selvam Additional Public Prosecutor ORDER This criminal original petition is filed to call for the records in CC No.1052 of 2020 pending on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai, and quash the same.

2.The petitioner, who is A2 in C.C.No.1052 of 2020, facing trial for an offence under Sections 34 and 394 IPC, has filed this quash application. The case of the prosecution is that on 04.08.2017, the defacto complainant, Manager of Poorvika Mobiles, T.Nagar, produced a person Gopiraj and two mobile phones and a knife and lodged a complaint stating that when he was in the showroom at about 10.45 AM, the said Gopiraj had come and enquired to purchase a iphone 7+ model, he was explained the offers, at that time, Rajasekar, a Samsung phone promoter, shown iphone7+ and Samsung S8 phones and explained to him the features and advantages between both phones. The person who had come there had took both phones and ran away and escaped. When the defacto complainant and Rajasekar chased to catch him, he shown the knife and inflicted injuries. When Gopiraj further ran he fell down on the road and sustained injuries and he was taken to police station and the case registered. As regard this petitioner/A2, he is arrayed as accused based on the confession of A1, admittedly the petitioner/A2 was not with A1, when he entered the shop and when he attempted to flee, no where seen near the scene of occurrence.

3.The contention of the learned counsel for the petitioner is that there is no evidence to show petitioner had any know of Gopiraj/A1, act. Even in the said confession there is a bald statement that the said Gopiraj was previously employed by the petitioner as a driver and thereafter Gopiraj left employment and worked in various other places in a juice shop at Saligramam, in Copper Kitchen at Porur and other places. The averment is that once Gopiraj enquired petitioner how to lead a luxurious life and petitioner is said to have stated by committing theft and robbery one can become rich. Further in this case, after the death of co-accused. Section 30 of the Indian Evidence Act cannot be used against the petitioner. In this case, admittedly A1 is no more. Hence co-accused confession cannot be used against the petitioner. The learned counsel for the petitioner submitted death of A1 reported and recorded by the Trial Court. Admittedly, the petitioner not present in the scene of occurrence. Only on the confession of A1, petitioner arrayed as accused in this case.

4.The learned Additional Public Prosecutor submitted that one Viswanath, Accountant in Poorvika Mobiles, T.Nagar on 04.08.2017 along with a Sales Promoter Rajasekar brought a person named Gopiraj along with one iphone and Samsung phone complaining that on the guise of purchasing a phone, he collected the phone and shown a knife threatening the inmates, fled from the scene when chased, fell down on the road and he was produced along with the knife. Thereafter, case in Crime No.1328 of 2017 for the offence under Section 394 IPC registered. During interrogation, the said Gopiraj gave a confession that the petitioner abetted the offence and hence, the petitioner was also arraye