1 A-2579-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 2579 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra ..Applicant versus Balu Shivaji Sonar ..Respondent Mr. Y. S. Shinde Additional Public Prosecutor – for Applicant / State. CORAM : D. D. SINHA AND A. R. JOSHI, JJ. DATED : SEPTEMBER 09, 2010. P.C. : 1. Heard the learned Additional Public Prosecutor for applicant / State. 2. The present application for leave to file appeal is directed against the judgment and order dated 1st February, 2010 passed by the Additional Sessions Judge, Gadhinglaj, whereby the respondent – accused was acquitted of the offences punishable under Section 302 of the Indian Penal Code. 2 A-2579-10 3. The learned Additional Public Prosecutor has submitted that the accused has made extra judicial confession before P.W. 6 Kalappa Chikhalkar and P.W. 10 Amar Chavan. However, witnesses though turned hostile their testimony ought not to have been discarded in toto by the trial court. It is further contended that P.W. 4 Vimal Sonar, the wife of the accused was examined by the prosecution on the point of deceased last seen together with the accused. There is a discovery of clothes by the accused having human blood. Same was also disbelieved by the trial court. It is therefore contended that the approach of the trial court resulted in recording finding of acquittal, which is unsustainable in law. 4. We have considered the contentions canvassed by the learned Additional Public Prosecutor and perused the judgment. 5. In the instant case so far as the extra judicial confession is concerned, both the witnesses have turned hostile and prosecution could not get any material in the cross-examination of these witnesses. Similarly, the evidence of last seen is also not properly established coupled with the fact of discovery of blood stained clothes, in our view, has rightly been disbelieved by the trial court since the clothes not discovered but produced by the police officer which has come in the evidence of one of the panch witness who was 3 A-2579-10 examined to prove discovery under Section 27 of the Evidence Act. 6. Considering the totality of the evidence, we are of the view that the prosecution failed to establish the charge against the respondent – accused, hence criminal appeal suffers from lack of merits. Criminal application, as well as, criminal appeal, both, are dismissed. (D. D. SINHA, J.) (A. R. JOSHI, J.)