1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.641 OF 2009. Tukaram Mahada Chewle ... Petitioner. Versus The State of Maharashtra ... Respondent. ... Mr.V.D. Godbharle, advocate for the petitioner. Mr.K.S.Patil, A.P.P. for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 21.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. The petitioner is accused in Sessions Case No.82/2008. He lodged FIR on 12.4.2008, whereupon Crime No.65/2008, was registered for offence U/s 302 of the I.P.C. Thereafter, on 2 14.4.2008, his statement was recorded U/s 161 of the Cr.P.C. by the Police Officer. Consequent upon certain investigation, the petitioner was charge-sheeted for commission of alleged offence punishable U/s 302 of the I.P.C. The offence relates to culpable homicide amounting to murder of wife of the petitioner. 3. While the trial was proceeding, an application dated 7.7.2009 (Exh.51) was filed by the prosecution to admit statement of the petitioner on record and to exhibit the same. The petitioner objected to get the inculpatory statement exhibited and read in evidence on the ground it is inadmissible in view of limitations which are to be read U/s 161, 162 of the Cr.P.C. read with Section 145 of the Evidence Act. He also submitted that such statement is not admissible in view of Section 25,26 and 24 of the Evidence Act as well as in view of guarantee available under Article 20(3) of the Constitution of India. The learned Sessions Judge, however, allowed the application and directed that admissibility of such Police statement will be 3 considered at the time of judgment. The statement of the petitioner was marked as Exh.52. 4. There can not be any two opinion about the settled legal position. A confessional statement of accused is inadmissible in evidence unless it is of any collateral use. The offence was already registered when the statement was recorded. It does not stand to reason that because he was not arrested, the petitioner could not be termed as accused and, therefore, his confessional statement would fall outside the purview of Sections 24 to 26 of the Evidence Act. The F.I.R. of the petitioner may be admissible in evidence in order to show his conduct to the extent it is relevant as "Res gestae" and not otherwise. The learned Sessions Judge, is at liberty to consider circumstantial evidence viz. only presence of the petitioner and his wife in the house, conduct of the petitioner, so on and so forth. Still, however, his confessional statement dated 14.4.2008 can not be admitted in evidence by applying any yardstick whatsoever and, therefore, the question ought to have been 4 finally resolved at the stage of consideration of the application filed by the prosecution. Such decision ought not to have been deferred. In this view of the matter, the impugned order is quite improper and perverse. 5. In the result, the petition is allowed. The impugned order rendered by the learned Sessions Judge is quashed. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/Crwp64109