1 cr-apln-5081-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 5081 OF 2010 IN CRI. APPEAL NO. OF 2010 The State of Maharashtra ..Applicant Vs. Chintaman Devu Kuwara and Anr. ..Respondents .... Mr. H.J.Dedhia Additional Public Prosecutor for the State .... CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. DATE : DECEMBER 01, 2010 P.C.: 1 Heard the Additional Public Prosecutor for the State. Criminal appeal filed by the State is against the judgment and order dated 19.4.2010 passed by IVth Additional Sessions Judge, Thane whereby the respondents came to be acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code whereas they are convicted for the offence punishable under Sections 452 and 323 read with Section 34 of the Indian Penal Code. The Additional Public Prosecutor has submitted that the case of the prosecution is based on the evidence of P.W. 4 Sanjay as well as P.W. 2 Raju and P.W. 3 2 cr-apln-5081-10 Kalpana. It is submitted that P.W. 4 Sanjay was examined by the prosecution to prove the fact that the deceased was last seen with the respondents together on 4.9.2008 at about 10.30 a.m. It is contended that the respondents made extra judicial confession to P.W. 2 Raju, P.W. 3 Kalpana and P.W. 4 Sanjay and admitted the guilt. The Additional Public Prosecutor further contended that considering the evidence on the point of last seen coupled with the extra judicial confessions which were made by the respondent, the trial Court was not justified in acquitting the respondents of the offence under Section 302 read with Section 34 of the Indian Penal Code. 2 We have considered the contentions canvassed by the Additional Public Prosecutor and perused the impugned judgment and order passed by the trial Court. So far as the evidence of extra judicial confession is concerned, it is necessary to consider the basic extra judicial confession alleged to have been made by accused to these prosecution witnesses. It is not in dispute that the accused made a voluntary extra judicial confession which is reproduced in vernacular “Ekala Zopawala, Tulahi Zopovato ”. The question arose before the trial Court whether the above referred confession alleged to have been made by the accused, would fulfill the legal requirement as contemplated under Section 24 of the Evidence Act. The trial Court concluded that the 3 cr-apln-5081-10 words used by the accused do not amount to extra judicial confession because it does not relate to death of Rama. It is well settled that while considering the admissibility of the extra judicial confession, the prosecution must show that it is voluntarily made and it relates to the death of the deceased as well as the admission of his guilt. The statement made by the accused to the prosecution witnesses, in our view, does not amount to extra judicial confession in the eye of law and therefore, the trial Court was justified in rejecting the evidence of extra judicial confession. 3 Secondly, the evidence of deceased last seen with the accused prior to the incident is inadequate to bring home the guilt of the respondent for proving the charge of murder. In the circumstances, no case is made out for showing indulgence in the present application for leave. Leave refused. Appeal dismissed. [ D.D.SINHA, J.] [ SMT. V.K.TAHILRAMANI, J.]