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2012 DIGILAW 72 (KAR)

State of Karnataka v. Rajnaika

2012-01-23

MOHAN M.SHANTANAGOUDAR, V.SURI APPA RAO

body2012
Judgment : 1. The State has filed this appeal questioning the judgment and order of acquittal passed by the Additional Fast Track Court-I, Davangere, in SC.No.22/2004, acquitting the respondents. By the impugned judgment, the respondents are acquitted of the offences punishable under Sections 302, 395, 201 and 419 r/w. Section 34 of IPC and Sections 3 and 25 of Indian Arms Act. 2. The deceased Basavaraj and accused No. 1 Devaraj are brothers. They are sons of Gurusiddappa. The family had got two establishments of Bakeries viz., ‘Prakash Bakery’ and ‘Shivaprakash Bakery’. Prakash Bakery was being run by accused No. 1, whereas Shivaprakash Bakery was being run by the deceased. Prakash Bakery came to be closed as the land lord of the said premises got back the possession and consequently, accused No. 1 (tenant) was evicted. However, accused No. 1 and the deceased were jointly doing business thereafter in Shivaprakash Bakery. Differences arose in the family. Deceased filed a civil suit before the jurisdictional Civil Court against accused No. 1 and his father. The order of injunction was granted in favour of the deceased. Suppressing the said order, accused No. 1 and his father Gurusiddappa filed one more suit in the Court of Civil Judge (Senior Division). In the said suit, order of injunction was not granted in favour of accused No. 1. Thus, ill-will between accused No. 1 and the deceased with regard to sharing of profit of Shivaprakash Bakery continued and there used to be frequent quarrels. The deceased went to Bakery from his house on 7.9.2002 in usual manner. After closure hours of the bakery during night, he went to office of PW.23, the advocate for having legal consultation. After having consultation, the deceased left to his house. However, he was unheard off from about 10.00 p.m. on 7.9.2002. Wife of the deceased (PW.1-Shilpa) lodged a complaint as per Ex.P1 with an allegation that her husband is missing from the night of 7.9.2002. However, the deceased was not traced. 3. When the facts stood thus, the Dy.S.P. Ravinarayan (PW.34) got information that it was accused No.1, the brother of the deceased who committed the murder of the deceased in collusion with accused Nos. 2 to 6. PW.34 (Dy.S.P.) lodged the complaint (i.e. second complaint) as per Ex.P41 on 23.11.2003 against accused Nos. However, the deceased was not traced. 3. When the facts stood thus, the Dy.S.P. Ravinarayan (PW.34) got information that it was accused No.1, the brother of the deceased who committed the murder of the deceased in collusion with accused Nos. 2 to 6. PW.34 (Dy.S.P.) lodged the complaint (i.e. second complaint) as per Ex.P41 on 23.11.2003 against accused Nos. 1 to 4 and others, as he allegedly came to know that all the accused committed the murder of the deceased. The complaint reveals that accused No. 1 had told accused No.2 to threaten the deceased in order to get the civil matters filed against accused No. 1 withdrawn by the deceased and as an advance money he paid amount of Rs. 10,000/-to accused No.2. Accused No. 2, in turn took the assistance of accused Nos. 3 to 6 and murdered the deceased by assaulting on the head of the deceased during night on 7.9.2002 and shifted the dead body in a car to a remote place. Thereafter all of them burnt the dead body in order to hide the crime, consequent upon such burning, the dead body of the deceased was not found. However, only the bones were recovered. During the course of investigation, the confessional statement of accused No.1 was recorded as per Ex.P44 before the learned Magistrate-PW.40 on 24.11.2003 and the statement of PW.7 was recorded under Section 164 of Cr.P.C. before another learned Magistrate-PW.39 on 6.12.2003 as per Ex.P14. After completion of the investigation, the police laid the charge sheet six accused for the offences punishable under Sections 302, 395, 201 and 419 r/w. Section 34 of IPC and Sections 3 and 25 of Indian Arms Act. 4. During the course of trial, the prosecution examined in all 41 witnesses and got marked 52 exhibits and 14 Material Objects. On behalf of the defence, one Exhibit came to be marked. The trial Court on evaluation of the material on record, acquitted accused Nos. 2 to 6 (respondents herein) of all the offences and convicted accused No. 1 Devaraj for the offences punishable under Sections 201 and 419 of IPC and sentenced him to undergo imprisonment of seven years and three years respectively apart from imposing fine of Rs. 50,000/-and Rs. 25,000/-, with the default clause. This appeal is filed by the State against the judgment and order of acquittal acquitting accused Nos. 2 to 6 (respondents herein). 50,000/-and Rs. 25,000/-, with the default clause. This appeal is filed by the State against the judgment and order of acquittal acquitting accused Nos. 2 to 6 (respondents herein). 5. Sri Nawaz, learned Additional SPP submits that the circumstances relied upon by the prosecution are proved in their entirety and since the chain of circumstances is complete, the Trial Court is not justified in acquitting the accused. He further submits that Ex.P14 and P.44, the statement of PW.7 made on oath before the learned Magistrate and the confession of accused No. 1 before the learned Magistrate recorded under Section 164 Cr.P.C. respectively would amply show the complicity of accused; that the police have recovered the robbed articles at the behest of accused Nos. 1 to 4 and 6; that the weapons used for commission of offence are recovered under panchanams; and that the mahazar witnesses have supported the case of the prosecution. The test identification parade was conducted by the Taluka Executive Magistrate, Dharwad and in the said test identification parade, PW.7 has identified accused Nos. 2 to 6; that the motor cycle belonging to the deceased which was sold by accused No. 1 was recovered during the course of investigation; that the ring and watch worn by the deceased at the time of incident were recovered and are identified by the wife of the deceased PW.1; as all the circumstances relied upon by the prosecution are proved, according to him, the Trial Court ought to have convicted accused Nos. 2 to 6 along with accused No. 1. 6. On the other hand, learned advocate appearing for the respondents argued in support of the judgment of the Court below. He draws the attention of the Court to Rule5 (3) of Chapter-V of the Karnataka Criminal Rules of Practice, 1968 to contend that the confessional statement at Ex.P44 recorded before the JMFC-PW.40 cannot be relied upon, inasmuch as accused No. 1 was not given 24 hours’ time to have rethinking in the matter and that the accused was in police custody all through till just before the statement was recorded. 7. PW.1 is the wife of the deceased. She has lodged the complaint alleging missing of her husband as per Ex.P1. She has also deposed about the motive for the incident in question. PW2. is the mahazar witness for Ex.P2, P4 and P7. 7. PW.1 is the wife of the deceased. She has lodged the complaint alleging missing of her husband as per Ex.P1. She has also deposed about the motive for the incident in question. PW2. is the mahazar witness for Ex.P2, P4 and P7. Ex.P2 is the panchanama relating to spot of assault by the accused on deceased. Ex.P4 is the panchanama under which M.O. Nos. 6,7,9 and 10 are recovered at the behest of accused No. 2. Ex.P5 is the panchanama relating to spot, wherein the motor cycle was hidden. PW.3 is another mahazar witness for mahazars at Ex.P6 and P7. Under Ex.P6, the knife (MO No. 8) and the ring (MO No.2) worn by the deceased are seized at the behest of accused No. 3. Under Ex.P7 the Titan Watch (Mo No.1) is seized from the custody of accused No. 4. PW.4 is the mahazar witness of Ex.P11 under which the documents relating to car belonging to accused No. 1 as per Ex.P8 and P9 are recovered from the custody of accused No. 1. PW.5 is the mahazar witness of recovery of panchanama at Ex.P12 under which MO.No.2-ring is recovered at the behest of accused No.6. PW.6 is the worker in Shivaprakash Bakery and he has deposed about the motive leading to the incident in question. According to him there was ill-will between Accused No.14 and the deceased in the matter of ownership of Bakery. PW.7 was supposed to be the eye witness to part of the incident, but has turned hostile. According to prosecution, PW.7 has identified accused Nos.2 to 6 in the test identification parade conducted by the Taluka Executive Magistrate during the course of investigation. In this regard also PW.7 has turned hostile. PW.8 is the mahazar witness for the panchanama at Ex.P20 under which car (MO.NO.13) belonging to accused No. 1 is seized. PW.9 has purchased the car (MO.No.13) from PW.14 who in turn had purchased the said car from accused No. 1. EX.P21 and P22 are the panchanams relating to seizure of RC Book and insurance certificate belonging to the said car bearing Regn.No.KA.18-M1941. PW.10 is the manager of Co-operative Bank, who deposed that accused No. 1, had an Account in his bank. He identified Ex.P25-cheque leaf. PW.11 is the Manager of Chitradurga Gramina Bank. According to him, accused No. 1 had taken loan of Rs. 1,50,000/-from the said Bank. PW.10 is the manager of Co-operative Bank, who deposed that accused No. 1, had an Account in his bank. He identified Ex.P25-cheque leaf. PW.11 is the Manager of Chitradurga Gramina Bank. According to him, accused No. 1 had taken loan of Rs. 1,50,000/-from the said Bank. He identified cheque leaves at Ex.P23 and 24 relating to bank. PW.12 is the Revenue Officer, who issued khatha extract of the building which is standing in the name of accused No. 1 as per Ex.P28. PW.13 is a hostile witness and his version is of no use to the case of the prosecution. PW.14 is the purchaser of the car (MO.13) from the accused No. 1. In turn PW.14 sold the car to PW.9. PW.15 is the broker through whom MO. No. 13-car was sold to PW.14 to PW.9. PW.16 is another broker through whom motor cycle (MO.No.14) of the deceased was sold to PW.17. While selling the said motor cycle, accused No. 1 had told PW.16 that he himself is deceased Basavaraj, in whose name the records of motor cycle were standing. PW.17 is the purchaser of the motor cycle (MO.No. 14) through broker-PW.16. PW.18 and 19 have turned hostile. PW.20 is the RTO who issued extracts relating to car (M.O. No. 13) as per Ex.P32. PW.21 is the doctor who gave report relating to bone pieces and the ash as per Ex.P33. The doctor has opined that the said bone pieces are of human region. PW.22 is the Engineer, who drew sketch of the scenes of offences at Ex.P34-A, P34-B and P34-C. PW.23 is the advocate who deposed about the civil matters pending between the accused and the deceased. PW.23 had represented the deceased in civil matters. PW.24 is the father-in law of the deceased. He posed about the motive relating to the incident in question. PW.25 is the hostile witness. Pw.26 is the officer of Forensic Science Laboratory, who gave report at Ex.P36 relating to gun and bullets (MO.Nos. 9 and 10). The gun and bullets were unlicensed. PW.27 is the engineer, who drew the sketch of scene of offence as per Ex.P38. PW.28 is the witness who spoke about the motive and panchayat held in respect of two brothers. PW.29 is the Motor Vehicle Inspector who inspected the car and gave report at Ex.P39. PW.30 is the seizure pancha of the motor cycle (MO.No.14), the mahazar is at Ex.P40. PW.28 is the witness who spoke about the motive and panchayat held in respect of two brothers. PW.29 is the Motor Vehicle Inspector who inspected the car and gave report at Ex.P39. PW.30 is the seizure pancha of the motor cycle (MO.No.14), the mahazar is at Ex.P40. PW.31 is the Taluka Executive Magistrate of Dharwad, who conducted test identification parade in which PW.7 identified accused Nos. 2 to 6 on 30.12.2003. Ex.P15 to Ex.P19 are the reports submitted by him. PWs.32,33,35,36 are the Police Constables, who participated in the investigation at different levels. PW.34 is the Deputy Superintendent of Police, Davanagere, who lodged second complaint as per Ex.P41 after coming to know that accused 1 to 6 committed the offence. PW.37 is the PSI of Azadnagar Police Station, who registered missing complaint on 7.9.2002 and complaint came to be registered in Crime No. 181/2002. PW.38 is the Inspector of Police who registered the complaint lodged by Dy.S.P. (PW.34) as per Ex.P1 on 23.11.2003. He has sent FIR to the jurisdictional Magistrate. PW.39 is the JMFC who recorded the statement of PW.7 under Section 164 of Cr.P.C. as per Ex.P14. PW.40 is JMFC of Davanagere, who recorded confessional statement of accused No. 1 as per Ex.P44 on 23.11.2003. PW.41 is the Inspector of Police laid the charge sheet after completion of investigation. 8. Accused No. 1 alone is convicted for the offences punishable under Sections 201 and 419 IPC. He is not convicted for the offence under Section 302 IPC. State has not filed appeal against the order of acquittal acquitting accused No. 1 for the offence under Section 302 IPC. However, this appeal is filed as against accused Nos. 2 to 6 only. It is brought to the notice of the Court that accused No. 1 has expired. 9. The case of the prosecution fully rests on circumstantial evidence. The circumstances are as under:- a) PW7 identified accused Nos. 2 to 6 in Test-Identification parade held on 30.12.2003. The Taluk Executive Magistrate-PW31 conducted the Test Identification parade – (witnessesPW-31 (Taluk Executive Magistrate) and PW7). b) Recovery from accused Nos.1,2,3,4 and 6 under Exs.P11,4,6,7,12 respectively. The materials recovered are Rs. 95,000/-, choppers, three cheque leaves, revolver and bullets (M.Os.6,7,9,10 respectively) from the custody of accused No.2. M.O.8 knife and M.O.2 ring are recovered from accused No.3. Titan Watch M.O.1 is recovered from accused No.4. b) Recovery from accused Nos.1,2,3,4 and 6 under Exs.P11,4,6,7,12 respectively. The materials recovered are Rs. 95,000/-, choppers, three cheque leaves, revolver and bullets (M.Os.6,7,9,10 respectively) from the custody of accused No.2. M.O.8 knife and M.O.2 ring are recovered from accused No.3. Titan Watch M.O.1 is recovered from accused No.4. Exs.P8 to P10 – the documents of the Car and the photo are recovered from accused No.1. M.O.3 ring is recovered from accused No.6. c) Accused No. 1 selling the motor bike (M.O.14) of the deceased and Car (M.O.13) in favour of PWs.17 and 14 respectively. PW14 in turn sold M.O.13-Car in favour of PW9 for Rs.1,07,000/-. d) Recovered articles such as rings and Watch mentioned supra identified by the wife of the deceased (PW1) as that of the deceased. e) Motive – deposed by PWs.1,6,23,24 and 28. f) Confession of accused No. 1 before learned JMFC (PW.40) as per Ex.P44. 10. Though the prosecution led the evidence of PW7 Thippeswamy, who is said to the eye-witness to part of the incident, he has turned hostile. The statement of PW7 recorded before JMFC as per Ex.P14 reveals that accused No.1 took PW7 to a place where the dead body of the deceased was taken in a Car Accused Nos. 2 to 6. Thereafter, accused Nos. 2 to 6 took away the dead body for the purpose of burning. Ex.P14 recorded before the Magistrate under Section 164 implicates all the accused. However, PW7 the maker of the statement has turned hostile before the court. He has deposed specifically that he was compelled by the police to state before the learned Magistrate implicating all the accused. According to him, he has stated false facts in Ex.P14 before the learned Magistrate under the coercion of the police. It is relevant to note that in the examination-in-chief, PW37-Insepctor of Police has deposed that the statement of PW7 is recorded by the police also during the course of investigation on 11.09.2002 i.e., two days immediately after the incident the statement of PW7 is recorded. However, the said statement is suppressed before the Court. By suppressing the said statement of PW7 which was recorded earlier by police, PW7 was made to state as per Ex.P14 before the learned Magistrate on 06.12.2003. The incident has occurred on 07.09.2002. However, the said statement is suppressed before the Court. By suppressing the said statement of PW7 which was recorded earlier by police, PW7 was made to state as per Ex.P14 before the learned Magistrate on 06.12.2003. The incident has occurred on 07.09.2002. The statement of PW7 is recorded under Section 164 Cr.P.C. before the lea3rned Magistrate on 06.12.2003 i.e., after lapse of one year three months. There is no reason as to why that second statement of PW7 is recorded after lapse of one year three months, that too by suppressing the first statement made by him on 11.09.2002. Moreover, Ex.P14 the statement was given under suspicious circumstances, inasmuch as PW7 was also put behind the bars along with the accused for about 20 days as is clear from the evidence of PW.7 in his cross-examination by Public Prosecutor. Thus he was knowing all the accused while he was in custody. There is no reason as to why PW7 was kept in illegal custody for about 20 days prior to recording of the statement as per Ex.P14 before the learned JMFC. After keeping him in custody for about 20 days, PW7 was taken to jail at Dharwad for identifying the accused. Keeping PW7 behind the bars for twenty days is highly disgusting factor. This fact shows highhandedness on the part of the police. Test Identification parade was conducted at Dharwad on 30.12.2003. These facts go to show that the statement of PW7 has come on record under coercion and thread by police. He was in police custody along with the accused. In view of the same, it cannot be said that Ex.P14 statement made by PW7 before JMFC was with free mind and voluntary. Therefore, the same cannot be relied upon. 11. So also, the test identification parade conducted by the Taluk Executive MagistratePW31 and the reports given by him as per Exs.P15 to P19 are of no assistance. As aforementioned, PW7 who identified the accused in jail knew the accused, inasmuch as he was also behind the bars along with the accused in the very cell for about 20 days. The police had detained illegally and unauthorisedly PW7 along with the accused. Therefore, it cannot be said that test identification parade was conducted in a lawful manner. In view of the same, the test identification parade also cannot be relied upon. 12. The police had detained illegally and unauthorisedly PW7 along with the accused. Therefore, it cannot be said that test identification parade was conducted in a lawful manner. In view of the same, the test identification parade also cannot be relied upon. 12. The recovery is said to have been made from accused Nos. 1 to 4 and 6. The recovered articles are documents relating to the Car from accused No. 1. M.Os.7,11 and 6 from accused No.2, knife M.O.8 and M.O.2 ring from accused No.3, Titan Watch M.O.1 of the deceased from accused No.4 and M.O.3 another ring of the deceased from accused No. 6. Cash of Rs.95,000/-and revolver plus bullets are recovered from Accused No.2. The recoveries are made one year three months after the incident in question. Except the two rings, Titan Watch, all other items are the weapons used for commission of the alleged crime apart from car documents and cash of Rs. 92,000/-. The serologist report is not on record. On the other hand, it has come on record that the weapons seized were not having blood stains. The recover of the weapons made by the police appears to be unnatural. The choppers which are not blood stained are recovered under Ex.P4. The revolver and bullets recovered from the custody of accused No. 2 do not relate to the offence at all. Rs. 95,000/-recovered from the custody of accused No. 2 cannot co-relate with the crime. It cannot be said that the cash of Rs. 95,000/-cannot be possessed by any person or by accused No. 2 at any point of time. Merely because he was possessing Rs. 95,000/-in cash after about one year three months of the incident in question, it cannot be said that the amount possessed by accused No. 2 is out of the sale proceeds of the Car. Ex.P1 – the complaint lodged by wife does not reveal that the deceased was wearing two rings and a Titan Watch i.e. M.Os.2, 3 and 1 respectively on the date of his death. In the absence of any material to show that the deceased was wearing two rings and a watch prior to the incident in question, it cannot be said that recovery of those materials from the custody of accused Nos.3,4 and 6 can be made as the basis to hold that these are the stolen articles. In the absence of any material to show that the deceased was wearing two rings and a watch prior to the incident in question, it cannot be said that recovery of those materials from the custody of accused Nos.3,4 and 6 can be made as the basis to hold that these are the stolen articles. In view of the same, the recovery also cannot be relied upon to base conviction of the accused. 13. Thus, the only circumstances that remains to be considered is ‘motive’. Merely because there was a motive on the part of the accused No. 1 to quarrel with the deceased, it does not mean that the accused No. 1 has gone to the extent of committing murder of his brother. The material on record, no doubt, reveals that quarrels used to take place between brothers and civil proceedings were pending. Even assuming that the prosecution has proved the aspect of motive i.e. the quarrels had taken placed between the accused No. 1 and the deceased, that itself will not be sufficient to connect accused Nos. 2 to 6 to the crime in question. There is no material on record to show the conspiracy between accused No. 1 and other accused. In the absence of such a material, it cannot be said accused no. 2 to 6 had got motive to commit crime for and on behalf of accused No. 1. 14. As aforementioned, the complainant-wife of the deceased has not suspected accused No. 1, the brother of the deceased at all, till lodging of the information (second complaint) by the Dy.S.p. PW34. None of he family members of the deceased, including PW1 have lodged complaint against accused No. 1 till about one year and two months after incident. Only after lodging of the so called second complaint by the Dy.S.P. after one year ad two months of the incident in question, the accused No. 1 came to be arrested, that too based on the aforementioned circumstances which are not proved before the Court. 15. The confession made by accused No. 1 before learned JMFC (PW.40) also cannot be made a basis for convicting accused No. 1 or other accused. The confession has come into existence on 24.11.2003 as per Ex.P44. The records maintained by learned JMFC, Davanagere, while recording confessional statement are perused by us. 15. The confession made by accused No. 1 before learned JMFC (PW.40) also cannot be made a basis for convicting accused No. 1 or other accused. The confession has come into existence on 24.11.2003 as per Ex.P44. The records maintained by learned JMFC, Davanagere, while recording confessional statement are perused by us. The same reveal that accused No. 1 was produced before the JMFC by the Sub-Inspector of Police, Azadnagar police station Davanagere along with the Police constables at about 10.00 p.m. on 23.11.2003 in the Home Office of the learned JMFC. Learned Magistrate has appraised the accused that he need not confess and if made would be used against him during trial. Thereafter learned JMFC has given time to accused No. 1 till 6 a.m. of 24.11.2003 i.e. till next day early morning, to think over the matter once again. The accused No. 1 was given to police custody during night of 23.11.2003. In the early hours of 24.11.2003 at about 6.00 a.m., accused Nod. 1 was brought by the police once again from the police custody to the Home Office of the learned JMFC. Once again the accused was appraised of the fact that he need not confess and if made the same may be made to use off against him in Trial. Since the accused agreed to confess, learned JMFC., decided to record the confession. Thereafter the police personnel were sent out of home office. Till then the police were present in the home office along with the accused. After the police left the home office of learned Magistrate, the confessional statement of accused No 1 is recorded. Though the document EX.P44 reveals that the accused No 1 was informed that his confessional statement can be used against him and inspite of the same, accused No. 1 was ready to give the statement of confession, learned JMFC has not followed the safeguards contained in the Karnataka Criminal Rules of Practice. 16. It is relevant to note Rule-5 (Chapter-V) of the Karnataka Criminal Rules of Practice, 1968 which reads as under: “5. 16. It is relevant to note Rule-5 (Chapter-V) of the Karnataka Criminal Rules of Practice, 1968 which reads as under: “5. Recording of Confession Statements, - (1) When an accused person is produced before a Magistrate for recording a confession statement, the Magistrate shall explain to him that he is before a Magistrate, that he is under no obligation at all to make any statement, that he is free to make a statement or refrain from making any as he pleases, that it is not intended to take him as an approver and that anything said by him will be taken down and thereafter may be used as evidence against him. The Magistrate shall make a record of the fact that he has complied with the above requirements. [Vide Section 164(2) of the Code] (1) (a) A Magistrate may put such questions as he considers necessary to assure himself that the accused is making the statement voluntarily. (b) Further, the Magistrate shall put the following questions:- (i) When were you arrested? (ii) When did the police first question you? (iii) How often did they question you? (iv) Were you detained any where before you were taken to custody? If so, when and where? (v) Were you induced to make a confession statement and are you making the statements as a result of any ill-treatment? (c) The questions put by the Magistrate as well as the answers given by the accused shall be reduced to writing. (2) If the accused person, after being so questioned. Still expresses a desire to make a statement, the Magistrate shall give him reasonable time for reflection, which shall ordinarily be not less than 24 hours. During this period he shall be kept in judicial custody. (3) When the accused person is produced before the Magistrate after the expiry of the period so granted, he shall again warn the accused that he is not bound to make any statement and that any statement made by him be used against him during the trial of the case. (4) If the accused still desires to make a statement, and the Magistrate is satisfied that he is doing so voluntarily, the Magistrate shall record the statement of the accused. (5) The Magistrate shall record the statement of the accused in Court and during the court hours, save for exceptional reasons to be recorded in writing. (4) If the accused still desires to make a statement, and the Magistrate is satisfied that he is doing so voluntarily, the Magistrate shall record the statement of the accused. (5) The Magistrate shall record the statement of the accused in Court and during the court hours, save for exceptional reasons to be recorded in writing. (6) The Magistrate shall see that during the questioning of the accused and the recording of his statement, there are no police officers either in the Courthouse or in the vicinity. (7) Every question put to the accused and every answer made by him shall be recorded in full. (8) The accused person shall be questioned in the language known to him and the answer given by him shall be recorded in his own words, as far as possible. (9) After recording the statement of the accused, the same shall be read out and explained to him in the language known to him and the fact of having read the statement to the accused and the accused having admitted its correctness shall be recorded. (10) The magistrate shall thereafter append a certificate as required by Section 164(3) of the Code." 17. From the above, it is clear that the Magistrate may put such questions as he considers necessary to assure himself that the accused is making the statement voluntarily. He should put the questions such as “when the accused was arrested?”, “when did the police first question the accused ? (i.e., maker of the statement)”, “how often did they question him?” etc. Only after satisfying the above requirements, the Magistrate should record the confessional statement. In the matter on hand, we do not find anything on record to show that such questions were put to accused No. 1 to find out as to whether the accused No. 1 is making the statement voluntarily. On the other hand, in the matter on hand, accused No. 1 was produced before learned Magistrate in her hom office from the office custody at about 10.00 p.m. On 23.11.20032. The accused No. 1 was given time to rethink till next day 6 a.m. During night he was in the custody of police and in the early hours of 24.11.2003, accused No. 1 was brought by the police once against from their custody to the Home Office of learned Magistrate and thereafter, confessional statement was recorded. The accused No. 1 was given time to rethink till next day 6 a.m. During night he was in the custody of police and in the early hours of 24.11.2003, accused No. 1 was brought by the police once against from their custody to the Home Office of learned Magistrate and thereafter, confessional statement was recorded. These facts clearly reveal that the accused No. 1 was not making the statement voluntarily, as he was in police custody all through during night. He should have been sent to judicial custody to rethink during night. As accused No. 1 was given to police custody during the night and as his confessional statement is recorded immediately in the morning, it cannot be said that the accused No. 1 has made the confession voluntarily or that the accused was without any fear of police. 18. Sub-Rule (6) of Rule 5 (Chapter V) of the Karnataka Criminal Rules of Practice, 1968, mandates that the Magistrate shall record the statement of the accused in Court and during Court hours, save for exceptional reasons to be recorded in writing. In the matter on hand, the confessional statement is recorded in the Home Office of the Magistrate. No reason, muchless, exceptional reason is recorded by the Magistrate as to why the confession of the accused was recorded in her Home Office that too during the early morning at 6 a.m. 19. Sub-Rule (3) of Rule 5 (Chapter V) of the Karnataka Criminal Rules of Practice further makes it obligatory that the Magistrate shall give the accused reasonable time for reflection, which shall ordinarily be not less that 24 hours and during this period he shall be kept in judicial custody. In the matter on hand, as aforementioned, the accused No. 1 was not kept in judicial custody, but he has kept in police custody during the period accorded for reflection. Moreover, accused No. 1 was not give 24 hours for reflection without any valid reason. Thus, it cannot be said that the Magistrate has proceeded legally while recording the confessional statement of accused No. 1. Even otherwise, we do not find any ground to accept the case of the prosecution that accused No. 1 has made confession voluntarily. On the other hand, the material on record reveals that the confessional statement is not made by the accused No. 1 voluntarily. 20. Even otherwise, we do not find any ground to accept the case of the prosecution that accused No. 1 has made confession voluntarily. On the other hand, the material on record reveals that the confessional statement is not made by the accused No. 1 voluntarily. 20. Honourable Apex Court while considering Criminal Rules of Practice of Uttar Pradesh which are almost akin to Karnataka Criminal Rules of Practice in the case of Ram Chandra and another versus State of Uttar Pradesh,reported in AIR 1957 SC 381 observed that the confessions may ordinarily be recorded in open Court and during Court hours unless for exceptional reasons it is not feasible to do so. This is a very important provisional which emphasizes that the Magistrate in recording confession in exercising part of his judicial function in the manner prescribed by law. A Confession taken in jail without any adequate reason therefore and in disregard of the instructions contained in the Government orders is improper. 21. The Honourable Apex Court in the case of Sarwan Singh Rattan Singh Versus State of Punjab reported in 1957 SC 637 has observed that “it would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decided whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.” The Karnataka Criminal Rules of Practice, 1968 thus make it clear that the confessions shall be recorded by the Courts during Court hours unless for exceptional reasons if it is not feasible to do so. As observed by the Supreme Court in the case of Ram Chandra and another versus State og Uttar Pradesh ( AIR 1957 SC 381 ), the Magistrate in recording confession in exercising part of his judicial function in the manner prescribed by law. The confession taken in the home office, that too early morning at about 6.00 a.m. without any adequate reason is improper, inasmuch as, the confession is recorded in total disregard to the Criminal Rules of Practice. The confession taken in the home office, that too early morning at about 6.00 a.m. without any adequate reason is improper, inasmuch as, the confession is recorded in total disregard to the Criminal Rules of Practice. Added to it, in our considered opinion, there are no reasons for the Magistrate to act in great haste by not giving the accused sufficient time to rethink. As aforementioned, the accused was produced before the learned Magistrate in her Home Office at 10.00 p.m. on 23.11.2003. The accused was given to police custody during the night intervening between 23.11.2003 and 24.11.2003. The police were directed to bring the accused back to the Home Office of Magistrate at 6.00 a.m. on the very next day i.e. on 24.11.2003. Thus, the accused who was in police custody during the night i.e., immediately prior to recording of confession was taken to the Home Office of the Magistrate at 6.00 a.m. on 24.11.2003 and the confession statement was recorded. Even at the time of preliminary enquiry before recording the confession i.e., while the Magistrate explained the accused that he is under no obligation at all to make statement and that he is free to refrain from making any statement As he pleases, the police were very much present along with the accused in front of learned Magistrate. Only therefore, that is, just prior to recording of confession, the police were sent out of the Home Office of the Magistrate, which clearly means that the accused was in the custody of the police till just prior to recording of his confessional statement. Hence, it is clear that the confessional statement so made by the accused cannot be said to be free from threat, force or coercion. We also find that the Magistrate has not given the accused reasonable time to reflect. In spite of specific rule that the accused should be kept in judicial custody while he was given time to reflect the Magistrate in total disregard to the said specific instruction has kept the accused in police custody. From the above, it is clear that the prosecution has not proved any of the circumstances relied upon by it to connect the accused with the crime. From the above, it is clear that the prosecution has not proved any of the circumstances relied upon by it to connect the accused with the crime. It is by now well settled that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. Circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. In short, the circumstantial evidence should unmistakably point to one and only one conclusion that it is the accused person and none other perpetuated the crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible for any rational understanding, no conviction can lie. Judged from this stand point, it is not possible to reverse the order of acquittal of the accused in the matter. The circumstantial evidence on record does not unmistakably point to one and only one conclusion that it is the accused and none other perpetuated the crime. Having regard to the material on record, the Trial Court is justified in acquitting accused Nos. 2 to 6. The reasons assigned and the conclusions arrive at by the Court below are just and proper. It is by now well settled that this Court would not normally interfere with the judgment and order of acquittal in case if the Trial Court has taken one of the two possible views while acquitting the accused. 2 to 6. The reasons assigned and the conclusions arrive at by the Court below are just and proper. It is by now well settled that this Court would not normally interfere with the judgment and order of acquittal in case if the Trial Court has taken one of the two possible views while acquitting the accused. The view taken by the Trial Court in the matter on hand is one of the two possible views under the facts and circumstances of the case. In view of the same, no interference is called for. The appeal fails and accordingly the same stands dismissed.