State Of Karnataka vs Rajanaika S/O Bojanaika on 23 January, 2012

[Cites 11, Cited by 0]

Karnataka High Court

State Of Karnataka vs Rajanaika S/O Bojanaika on 23 January, 2012

Equivalent citations: 2012 CRI. L. J. 2611, 2012 (2) AIR KAR R 800, (2013) 1 ALLCRILR 614, (2012) 3 KANT LJ 607

Bench: Mohan Shantanagoudar

4. Guden
S/o Babu Sab
Chilapura Village
Honnali Taluk. 
5. Chaman
S/o Rahaman Sab
Chilapura Village
Honnali Taluk     
Davanagere District.   '.'.ResponEdents

(By Sri C.N. Raju, Adv;-,._lor i={1  

This Criminal App.eal_'is filed undei"lSection 378(1) &
(3) Cr.P.C. b.y.--.the_ Sigate Rub.lic'~TPros'ecutor for the State
praying to grant"_!eavgeX_to file. an""'a'ppeal against the
Judgment ;a'riq'_4«..o'i"dc'=;r of.Vjac'qu_itta'i'.da.ted 23.8.2005 passed
by the P_..Oi..,;j_Fast Court--I, Davanagere in
S.C.Nov.'2'2v/2004 a'cquitt.inng theresvpondents -- accused 2 to
6 forathe ofi'e_ncesiVpuni's.hable under Sections 302, 395,
201, <'i..'19'Wr/w 34"-».of»,IPCA_'and under Section 3 r/w 25 of
Arms Act. " '   

_-This aA"ppVeal~.vcominAg.. on for hearing this day, MOHAN

 pg  J., delivered the following:--

JUDGMENT

T__he'_S~'tlate has filed this appeal questioning the and order of acquittal passed by the «"AV'd--d--itional Fast Track Court--I, Davangere, in

-i-S:C.No.22/2004, acquitting the respondents. By the impugned judgment, the respondents are acquitted of W

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the offences punishable under Sections 302, and 419 r/w. Section 34 of IPC and Secticiris of Indian Arms Act.

2. The deceased Basavarajrand Devaraj are brothers. sons' The family had go't;:4_._t:w'oBakeries viz., 'Prakash__ Bakeyrx,/.'.:'_::anid: Bakery'. Prakash accused No.1, being run by the deceased.-Acame to be closed as the land lord-of the "p:':r'_emises got back the possession andicvoiisequ'e"ntly,__.a.ccused No.1 (tenant) was evicted. ' VH'owevve'r,:'aéc'c.used No.1 and the deceased were jointly 'd.oing thereafter in Shivaprakash Bakery. Differe'n;_ces arose in the family. Deceased filed a civil before the jurisdictional Civil Court against ' "accused No.1 and his father. The order of injunction was granted in favour of the deceased. Suppressing , la-

xi 7 .4- the said order, accused No.1 and his father Gurusiddappa filed one more suit in the CourtvV.of_:Ci_Vyil Judge (Senior Division). In the said sui1:?"o'«rd:-eirifl injunction was not granted in fax/our of*'a'c*cufsed». No.1,. Thus, ill--will between accused No.1'and'=t_h'eildecéasedi with regard to sharing "of=~.V..profit of Svhi'~{(aprai<ash'VVl' Bakery continued and "frequent quarrels. The decvelasted from his house on 7i_9.:;2:OO2 After closure hours of he went to Office of legal consultation.

After :"h.a\"/icing the deceased left to his house. H"ow'ev.e'.r, "he"°.was unheard off from about p~.m'~...on 7;9';'2C)O2. Wife of the deceased (PW.1-- a complaint as per Ex.P1 with an alAlegati__on,ut~hAat her husband is missing from the night However, the deceased was not traced. -5-

3. When the facts stood thus, Ravinarayan (PW.34) got inVfo'rr*natio'_n Vi:t»'_Twa=3 accused No.1, the brother committed the murder devce--a_sed."'.=inﬂcolllusionif with accused Nos.2.'t'o.V_A'6. lodged the complaint (i.e. second Ex.P41 on 23.11.2003iagiainsttacciuséd""N:os".\ and others, as he all the accused thhewdveceased. The complaint reveals't_h"at had told accused No.2 to threjaten th.Ve"'deceasVed in order to get the civil matters filed av;gla.in:st..Vaccused No.1 withdrawn by the deceased a's7?_v.a_n'~,'"advance money he paid amount of V «V accused No.2. Accused No.2, in turn the assistance of accused Nos.3 to 6 and "rnurdered the deceased by assaulting on the head of "the deceased during night of 7.9.2002 and shifted the dead body in a car to a remote place. Thereafter all of W 36- them burnt the dead body in order to hide.::triefciri'me..; consequent upon such burning} deceased was not found., _However, onlx,/Ethel' bioriesf were recovered.

During the ---pw/(V__j.,¢r)N'ﬂfiWgsﬁtigation, the confessional.Vst:aVtem€{'nqt<gof::av¢:Cufs:ed:v' was recorded as per M'agistrate--PW.4O on PW.7 was recorded underf'S.ec'tion before another learned MagAVistrate?"P\_/:V.»3.Eé-- on 36.12.2003 as per Ex.P14. After .~.,,-,co'iriple'tion._of téhﬂewinvestigation, the police laid the 2'~..chargejf"-s.hee~t_.}~against six accused for the offences pun.isha'b!e.7~'uAnder Sections 302, 395, 201 and 419 r/w.

"."4"'--.VJ'Section:34 of IPC and Sections 3 and 25 of Indian '~A'r'rr.~é Act.

4. During the course of trial, the prosecution examined in all 41 witnesses and got marked 52

-7, exhibits and 14 Material Objects. On behalf defence, one Exhibit came to be marked1;""ThVVe...'__jff«r'l_a_in_ Court on evaluation of the material-~....:on "'~r:ecord}*«V. acquitted accused Nos.2 to 6 all the offences and convifcte_Vd accused il\;l'o}{L««.Dex3araj-Q for the offences punishablec4.l:VVLl»n_d'e_VrL' Se'c'tiovns_V7201 and 419 of IPC to undergo imprisonmenytéciiﬂf three years respectively of ?50,000/- and €25,000/aw defaultc'laVuse.

by the State against the judgrnent an'd._V_VVoVrder of acquittal acquitting accused l$l'o,s:.2_ﬁto.6_(ife_spondents herein). 5,~~'.:Sir1iAlV.Nawaz, learned Additional SPP submits that the' circumstances relied upon by the prosecution é"~are«sér'proved in their entirety and since the chain of

-«circumstances is complete, the Trial Court is not ,9- incident were recovered and are identified by the.___wife of the deceased PW.1; as all the circumstan.cesV"-reluiied upon by the prosecution are proved, accordingjV'toVi'hircn; the Trial Court ought to have to 6 along with accused No.1.

6. On the other 1. uxavclvocate appearing for the insupport of the Judgmentgeor draws the attention of l.%(:u'."j:'o'r:'Chapter-V of the Karnataié 1968 to contend that ._ at Ex.P44 recorded before 'the cannot be relied upon, ina.s.§much as a~ccu_se.d No.1 was not given 24 hours' rtiime to"~h:a.:g)'e.__rethinl<ing in the matter and that the accused 'xvi/;aVs'vVin police custody all through till just beforeithey statement was recorded. ' V' . was {hi5dde"n...

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7. PW.1 is the wife of the deceased:.:::

lodged the complaint alleging .=vniAssi'ng of »h_u.sVb:auni.d1 as per Ex.P1. She has alsgo_deposAe'd.. abogut: for the incident in question.'""i'=:V'"

PW.2 is the P4 and P7. Ex.P2'.visLthe to spot of assault by" Ex.P4 is the 7, 9 and 10 are recove'i*ed'.at accused No.2. Ex.P5 is the panc/7vanair"riaV_:'rela'.ting spot, wherein the motor cycle H ijsvlanother mahazar witness for mahazars at Ex..p§ and P7. Under Ex.P6, the knife (MO.No.8) A ring (MO.No.2) worn by the deceased are it 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.

-11- PW.4 is the mahazar witness of Ex.P11 under which the documents relating to car be|ongViV_r'i.g'i~..to accused No.1 as per Ex.P8 and P9 are recoﬁered§'froi*n_T'i. the custody of accused No.1.

PW.S is the mahazVa.Vr_'_witn*e_s's-- forsV.vi*ecoyer'y."c;t:', panchanama at Ex.P12 is recovered at the behest of--'accused».ii\.i'oi._6. PW.6 is Bakery and he has Vjmotive leading to the him there was ill-will betwee'n~~"and the deceased in the matter of ownei's.i1ip."-ofiviéa kery. ' supposed to be the eye witness to part oi'jthe incifdei'1t, but has turned hostile. According to "._yVprose~c_ution, PW.7s has identified accused Nos.2 to 6 ,ﬂ"'_in:}_'t'i:e test identification parade conducted by the K.'"----".j_VV_Ta|uka Executive Magistrate during the course of

-]3- loan of ?1,50,000/- from the said >banl<;.""*l~lé~'..i:d'e:ntifie:d cheque leaves at Ex.P23 and PW.12 is the Revenue"'Qffi»cer, wihVo"ris'suevd /H<Vhatha V extract of the buildiri4'gV.i_wh_'ilc'h_tis':.stan.ding the name of accused No.1. as PW.§1.'3i»«.zi_t'n_e'ss and his version is of no usetov oroseclution.

is"the..:purc.h'aVser of the car (MO.13) from accused. No.1'; Ihvvturiri Pw.14 sold the car to PW.9. l 2'rF§jiN;..i}3§:ivsi..the broker through whom MO.No.13-- car.yvaVs- soldby PW.14 to PW.9.

Pl/v.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 r ,14_ whose name the records of moto_r..,V:cy.cle.::' were standing.

PW.17 is the purch'a,:s:'('--:V.r of cycle' (MO.No.14) through b~roker4'Pv'i/Q;6"."-,_ PWs. 18 and 19 :.h'a'veftui"n_ed" PW. 20 --..issued:"eV§<tracts reiati ng to car ( P"'%~':Vr~~::E'X1P*32,u§V PA\N_._2']._ is 'who gave report relating to bone' pieces ash as per Ex.P33. The doctor the said bone pieces are of human "PV\(A\ji.22 is the Engineer, who drew sketch of the 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 \i\ ,15, deceased. PW.23 had represrenteidiwjjthe civil matters.

PW.24 is the fa'ther-i~:'i¥ia.wj o"faA.the 'de"cea'sed. He deposed about the .AA_tjQ'z_'t.he incident in question.

Pwt,25 ghasuie PW_.26_ 'isg'-tithe'"---..__'ofﬁcer of Forensic Science Labo'ratoryu,a who 'gar/e report at Ex.P36 relating to gun .bu'i!:'I'et:s'(..MO.Nos.9 and 10). The gun and bullets "' we're u"ni'ice d.

is the Engineer, who drew the sketch of of offence as per Ex.P38.

PW.28 is the witness who spoke about the motive and panchayat held in respect of two brothers. : a_'r:I-r :2

-16, PW.29 is the Motor Vehicle Inspector__ who inspected the car and gave report at Ex.P39. PW.3O is the seizure pancha of th,e,'V_A'r'n.ot.5:r l'gyr.l'el., (MO.No.14), the mahazar is PW.31 is the Taluka-..__Execu_ti've P«iag;is4t_rat_euvofiir. Dharwad, who conducted tes't.'_ide'ntifi'caVtion parade in which PW.7 identifi.ed__ 'éagct:';uséd\'v...:Nos.2 to 6 on 30.12.2003. =-E_x.P1"'5"'»-t.:o v'E).<';_P"i..9 [faitel the reports su bmitted 'V arelvthe Police Constables, who investigation at different levels. _ the Deputy Superintendent of Police, Da't'anag*e.jnje;.1' who lodged second complaint as per Ex.l34i"«;.after coming to know that accused 1 to 6 cornmitted the offence.

,]7_ PW.37 is the PSI of Azadnagar Police Station, who registered missing complaint on 7.9.200';-«4_.ia~nvd complaint came to be registered fin NO.181/2002.

PW.38 is the Inspector of Poahllice the complaint lodged by pfer Ex.P1 on 2311 2003. He hassentéﬁltothejunsdmﬁonm Magistrate. V ' PW.E3§ 'recorded the statement of as per Ex.P14.

PWu§'4..Qi Davanagere, who recorded coV_ri'l§'esEs;Ai'on_al statement of accused No.1. as per Ex.P44 i"1j§h'23;1i.2oo3, PfVV.4l'<:j.A is the Inspector of Police who laid the chargesheet after completion of investigation. .18,

8. Accused No.1 alone is convicted":to'r:uft.h'eV offences punishable under Sections 201 He is not convicted for the offenlcel"under-:S--ecti_o.n3023 IPC. State has not filed a.p_peal4'=againsttifie'v"o'rder"'ot'wV acquittal acquitting accused'V"No}1_forVthe,_"offen'ce under Section 302 IPC. 'l;:lﬂ'oixve\iAer,.Q:Vth..i,_s..»_l"a«ppeal filed as against accused Nos.2.."onil,y,""=Tt":i7s~tjrought to the notice of th_e._':vCc§ur_t that€ac.cusedv'"l'lo';'1" has expired. 9}"T'h.e:ii,ca§fe"'oiﬂtlie p_ro's'ecution fully rests on circumu":tantiVal-- Ve'v'jii'd.er:c:é'.»..,..--~ The circumstances are as u n d er; --

ililetntifieclwaccused Nos.2 to 6 in Test- parade held on 30.12.2003. The "..Talul<"Executive Magistrate-PW31 conducted the uT'est7_Identification parade -- (witnesses PW-31 .. ,(_Tal'ul< Executive Magistrate) and PW7). Sit-§)SR"ecovery from accused Nos.1, 2, 3, 4 and 6 under Exs.P11, 4, 6, 7, 12 respectively. The materials recovered are '95,000/-, choppers, three cheque 'i Q 7 , -19- leaves, revolver and bullets (M.Os.6, 7, 9, 10 respectively) from the custody of accused No.2."-.T M.O.8 knife and M.O.2 ring are accused No.3. Titan Watch from accused No.4. .E$é's'.'P8..'*to documents of the Carlifar.-AdA"lthe recovered from accluysed No-.1'. is'-L' recovered from accused-,:l:\_Jo.,_V€>. V,

c) Accused No.1 sellin'_§i'~«.the.'_'Arn§ot'o«r_ (M.('A)A.iV4) of the deceased and Car in PWs.17 and 14 respectlx/.ely_. M.O.13-Car in favour of 'l;_l_,iO--?_,0.00/--'.V_

d) Reco_v<ereq*l. /a_.rtic!e's rings and Watch mentiovne'd.j'.\..Vsu:oVra-Lidlentified by the wife of the deceased the deceased.

e) Motive'4;deposed.V_by."-"PWs.1, 6, 23, 24 and 28. ..C3onfe:s3_ion Aiofvv---a--ccused No.1 before learned JMFC r U*»(..P\N,,'4.0:).._a"s._per Ex.P.44. 1VO..:i::f!'hough the prosecution led the evidence of 'Th__A!'3ppeswamy, who is said to be the eye--witness of the incident, he has turned hostile. The \'7 ,2()_ statement of PW7 recorded before JMFC as p€l'WE):(:.P_14 reveals that accused No.1 took PW7 to a the dead body of the deceased was taken '* Accused Nos.2 to 6. Thereafter, gfacciused took away the dead body"fo*r_the"Apurpos'e:'Aofvb.u.rr*iinc;. Ex.P14 recorded before thVe...l:l§?ia.qist'rate Section 164 implicates all PW7 the maker of the_ .Sfa.t_em§;éVVn't' 'hosltile before the Court. that he was comp§3'i'led~.'lAVfb:y.' to"""sta%te before the learned Magisytratlel. accused. According to him,__he h"as_:'stated'v.false facts in Ex.P14 before the "ff'=.Iearn'ed'vMagistrateunder the coercion of the police. H 'isfjreylcielyant to note that in the examination--in-- chief, sPW.3l7--Inspector of Police has deposed that the A 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 xi\ _2]_ PW7 is recorded. However, the said suppressed before the Court. By supprerssing:th:e«sai:d statement of PW7 which was r_ecc3rd'e.d~..'e-ari'ier_'by Police, PW7 was made to's't.a.te as. 'per Eil>:<'.Pi._1v-41,Vbeforet"

the learned Magistrate onAa_(i6A'.i.l,_2.2gOO.3."iihevvfiincident has occurred on O7.09z.:20():2_. of PW7 is recorded the learned Magistrate«"o'n..__ i.'e_.ﬁaifteiriiiilapse of one year threen'o»»»--r"eason as to why that is recorded after lapse of one year"'three_month~sny that too by suppressing the stategmeht"ssmade by him on 11.09.2002. "*_MVoreao:v'e:r,-4iEx",j.P14 the statement was given under sus4piciousi'4j'.ciircumstances, inasmuch as PW7 was also put behind the bars along with the accused for about it 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. -22- There is no reason as to why PW7 was kept _.inV_j:'i-!..lleg_al custody for about 20 days prior to statement as per Ex.P14 beforethe.'"lea'rn.e'd."'J4_lYlF€_V.uV' After keeping him in custody for about was taken to jail at for the"?

accused. Keeping ba'r'sr..fo'r twenty days is highly fact shows highhandedrj..essg:-onizfggflltlhleiii police. Test at Dharwad on to show that the statemAen:t"of on record under coercion and;thrAeatu"by"police'. "He was in police custody along R"'v«I.ilfll'i accused. lllll "In view of the same, it cannot be 1 statement made by PW7 before JMFC was wlilthfree mind and voluntary. Therefore, the same cannot be relied upon.

11. So also, the test identification parade conducted by the Taluk Executive Magistrate-PW31 ~24- Rs.95,000/- and revolver plus bullets are recolvleared from Accused No.2.

The recoveries are made one-yAea?_r three mon',th"s after the incident in question. °Exc.ept th'ey.two Titan Watch, all other itemsi..c.'a"r=--e the weapfonllstvvyulsed fort' commission of the from car documents and serologist report is not hand, it has come on seized were not havingjbvll ﬂrelcovery of the weapons made xibyythel to be unnatural. The choppers wh'ich"arel' not blood stained are recovered The revolver and bullets recovered from accused No.2 do not relate to the .y off'e'nceLat":a|l. ?9S,OOO/-- recovered from the custody oi*"a..ccuVsed No.2 cannot co--related with the crime. It lhcannlot be said that the cash of ?'95,000/- cannot be possessed by any person or by accused No.2 at any Lt': ii' ' lb » .25- point of time. Merely because he was possessing '€95,000/-- in cash after about one year three4..m-o_:n.t_hs of the incident in question, it cannot be amount possessed by accused __l\.lo,__2 is_--'out"o.f.thejsal-e proceeds of the Car.

Ex.P1 -- the complain'§..u.u:'i'§dg_ed not reveal that the deceased _twouArings and a Titan Watch i.e_., "i"V...re'sIpective|y on the date of his any material to show two rings and a in question, it cannot be said that*r_e"cover_y4' materials from the custody ofvaccused Nos--.V3v,___4_and 6 can be made as the basis to 'hVo*ldV th,_atl 'these are the stolen articles. In view of the same, thefrefcovery also cannot be relied upon to base conviction of the accused.

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13. Thus, the only circumstance tl"i'at-djregrriwains to V be considered is 'motive'. Merely because 'there jwasra motive on the part of the *accused"No.1 _to..vgu_a4rre|-'with2."

the deceased, it doesgnot m.ea'n._t'h.at the'la.ccu.t;ed No.1 has gone to the of his brother. TUE..Th._ate;ji'a'l';' iaolldoubt, reveals that between brothers and civil Even assuming that the the aspect of motive i.e, thevq_vuarr"e.!gV"' had taken place between the accused and the dV'ec"ea"sved, that itself will not be sufficient Nos.2 to 6 to the crime in qu*e_stioii~._;?"here is no material on record to show the consbiracy between accused No.1 and other accused. Wi_Vn'~tl'1e 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.

<-'a;~».I---'r"

_27_ the deceased has not suspectedLaicjcuseidﬂ.' brother of the deceased; al'l','._V_ti'll information (second compla:i"riVt'):'by the PW34. None of the the" deceased, including PW1 have accused No.1 till months after the so called second comp:l"a_in*t about one year and two months of__the Vi'nc4Vid_e'nt:J'in question, the accused No.1 carriseE__lAtoVV%_ beA""'a.r.rested, that too based on the 'aforeAn'1..e'riti'on'ed circumstances which are not proved before u rt.

V " The confession made by accused No.1 before lealrlned JMFC (PW.40) also cannot be made a basis for Vwconvicting accused No.1 or other accused. The confession has come into existence on 24.11.2003 as per Ex.P44.

l/'

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The records maintained by learned JMFC, Davanagere, while recording confessional stauternent are perused by us. The same reveal No.1 was produced before themJMFC''''by.:'_thVew: 1' Inspector of Police, Azadn~.aga'_"rtPo.|_ice_:" :St'a-~t.iVo.n:

Davanagere along with th'e._VPO..l_ice ACon3taf'bpl_e'S_:'a--t...a'bout'-1' 10.00 p.m. on 23.11.2003.n{f:he's...norﬁe'sorﬁﬁé of the learned JMFC. Learnxedﬁ__MagVi.st:a'atevV._hfavsigappraised the accused that he':-neeidlll if made would be used Thereafter learned No.1 till 6 a.m. of day early morning, to think overthe rnatter..'--on'ce'"again. The accused No.1 was p"o.léi_ce cfuvstlody during night of 23.11.2003. In 1111.81ieamzg;%.¢0i»s of 24.11.2003 at about 6.00 a.m., acc'a.Jse.d'l\io.A1 was brought by the police once again the police custody to the Home Office of the °lea'r'ned JMFC. Once again the accused was appraised K0 .29, of the fact that he need not confess and if same may be made use off against him the accused agreed to confess,learned.'_'1Vl§l_l?'C.--.I,;4'd'eci'de'dif to record the confession. T'he:r.="eaftelr'* ..A:th.e«.

personnel were sent out .office...:Tilllllithenl the' police were presentVi:'n_the'.VAh'om{e of--fi_ce allongfjwith the accused. After office of learned Magistrate, statement of accused R"i»'.vh'oiugh the document Ex.p4.4;eve;3r:s agcauséd No.1 was informed that can be used against himéiard insp'iteV"o'f the same, accused No.1 was ready VZito.jggiveltiiestatement of confession, learned JMFC has the safeguards contained in the

--V Ka'r'nat'a:lV{a"Criminal Rules of Practice. 1' 16. It is relevant to note Rule--S (Chapter-V) of Karnataka Criminal Rules of Practice, 1968 which reads as under:

'I\ \ -30- "S. Recording of Confession Staten,1.e.ijAtV§_gt:'5' (1) When an accused person is p_ro'dv-u':c_ec1"'~:befor;e a Magistrate for recording ; 'a .:'__'COl"lfG.§.S'l.QD:' statement, the Magistrate'~Sh'a_|| eXP'l3l'r'l that he is before a M*a__glstrate,v._th-atf_hé~,Vi's'"under'V'V no obligation at all toy..m':avk_e"V.ag'ny'statement, that he is under to make any statement, that_h_ef".i_s a statement or refravin-frjom pleases, that it is not h'i_;m.as an approver and that be taken down and as evidence agaisnt him.

"TheV,Ma.g-ist'r.a:t€"'shall make a record of the _factl"th_atﬁ.heA'=. has complied with the above " ' reg u_i_ re m ents. « ' v.:[\\'z'vic_le Section 164(2) of the Code] Magistrate may put such questions as he considers necessary to assure himself A that the accused is making the statement voluntarily.

if (b) Further, the Magistrate shall put the following questions:--

(i) When were you arrested?

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(ii) When did the police first question;'_"yo«u'?'..j: _

(iii) How often did they question

(iv) Were you detained ;a'n'y"«where,before'-iyovup were taken to custc)«dy?:,'l'I'f so,"w'lien'l_l:"'a_n'd:. where? _ _ ._ H

(v) Were you induce"d._V'g:to_VVmakeilaf cognfession statement':'~~..and"fNV_are._ Wyotu making the statements' as fany'_w__ill--treatment?

(c) _The _put,;by."the""Magistrate as well 2: as~:ﬁ.4t'h;e the accused shall """ H person, after being so que'stion,ed.._StiI'i».,:e'xpresses a desire to make a _{'stateme'n.t,V:Vthe Magistrate shall give him nélasonable for reflection, which shall be not less than 24 hours. During this pelri'od_ he shall be kept in judicial custody.

'W 'A (V4). 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 _32_ any statement made by him may agaisnt him during the trial of the cas...ei'_:.w""

(5) If the accused still desires...,to.VVrnialceif statement, and the Magist'raite"is_siati-sfied._thVa't"Vhe« is doing so voluntarily,"Ythieg"'Malg'istrate record the statementilofthe a'ccused'.s.v_ (6) The Magistrate shavjllilfecord 'the: statement of the accused ii-aJ:'_"EZoui'j;t' court hours, save for exceptional recorded in (7) s-ltiafllv that during the questi..oiiir:iig?V of and the recording of _a_re"no police officers either inthe Cour'tho_uvs.ei"-or..--~in the vicinity. (8)2'E.vevryV'quesitioln put to the accused and every answerlnim-aide-___b.'y him shall be recorded in full.

accused person shall be questioned in 'f't«h'e._"ian.g.uage known to him and the answer if him shall be recorded in his own words, ..as}_far as possible.

'*-,g(i'O) 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 -33- accused and the accused having admitted its correctness shall be recorded.

(11) The Magistrate shall thereafter.~~~a.'p'b:e__nCf:_:'a~. certificate as required by Section Code/' w %mm

17. From the above, clea.'it.':th"at'j'the?' Magistrate may put such 'q'u:esti_ons"' 'considers necessary to assu'ri:e4_""~:i_hinﬁfse_|'fyi':';t_h.at:,thevfacycused is making the statementVrleeshould put the questions was arrested ?", m./vhen the accused ? (i.e., maker' of "how often did they question'*ah4im_?"" = after satisfying the above req«Lii:irernents',"'--..the', Magistrate should record the ' cvonfessionéalstatement.

In. on hand, we do not find anything on record to show that such questions were put to No.1 to find out as to whether the accused \/A"

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be not less than 24 hours and during this pe.ri_e_d.he shall be kept in judicial custody. In hand, as aforementioned, the alC.C_used"'n'0'*.--1_';.w'as'.not kept in judicial custody, but he custody during the perioc_l:""~.a_ccorde_d~_fovr"'refl'ection." it Moreover, accused No.1 wa--swrlot"~.g_iven'24 hours for reflection without anvévaiidl' it cannot be said that legally while recording of accused No.1.

Even jdoﬂnoltl"fi'n'dV§any ground to accept the cavlsegl of that accused No.1 has made..confession.T*vol-untarily. On the other hand, the 1°-ma'teriiaiiA record reveals that the confessional not made by the accused No.1 volu ntajrily Hon'ble Apex Court while considering Cériminal Rules of Practice of Uttar Pradesh which are almost akin to Karnataka Criminal Rules of Practice in .37.

the case of Ram Chandra and another Vs. Sta'te._Vof Uttar Pradesh, reported in AIR observed that the confessionsgmay;"'ovr--di_na'r:ily_ if recorded in open Court and duitingj'C.Our't._h'o_urs"tinlésos for exceptional reasons it 'i's_h.ot feasible_ to =iThis'-L' is a very important_provisyi.onA'fwhich ferhphcasiises that the Magistrate in is exercising part of his rhffavnner prescribed by law. in jail without any adequate in disregard of the instructioiwfsf the Government orders is impAr_Qper.fa* Hon'ble Apex Court in the case of Rattan Singh Vs. State of Punjab reported 1957 SC 637 has observed that "it would if fnatuyrally 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 \/W ,38_ confession under Section 164_»How.ever;T_wvspeaking it generally, it would be reasonable t_oainséi'st_1 an accused person at |easti'2.4_i hoursto de'ci'd;e__vi/hethVer_W':; t h h ld k

(r)nra{/Wobe reeasso%Uto g1u?,p%c€_§§.g|%rccus.e_(§]V eye here Ayas een persuaded or coerced? to, m_al<e»_"aiconfession, even longer period may ha.v.e,'to be VV,giy'en"'to'* 'him before his statement "3:

'The--KAa'ir--i1at_a'i<a'*C:ri-mi~nal Rules of Practice, 1968 thus ma._l<e» itthe confessions shall be recorded by the .7'Co'urts during Court hours unless for ex'ceptitona.lé reasons' if it is not feasible to do so. As lib',/iitrhe Supreme Court in the case of Ram Chai7dra".";:nCl'another --vs-- State of Uttar Pradesh (AIR the Magistrate in recording confession isfexevrcising part of his judicial function in the manner 7p:re's'cribed by law. The confession taken in the home 139- office, that too early morning at about without any adequate reason is impropery: injavsvvmluchi V' as, the confession is recorded inmtot'a!..Vd.i_sreg.ai'd_.to'Vthe« Criminal Rules of Practice. Added considered Opinion, there"V"i'ta:..._r'ge _VnoV"a<eas*ons2§ the Magistrate to act not giving the accused sufficient ink."'vv...As--3aforementioned, the the learned at 10.00 p.m. on 23.111.200333,';3"':Tl'fi:-er:aclcuised'was given to police custody during the "ni_gh't_ between 23.11.2003 and "'*T.hv_e_g_gpolice were directed to bring the ' the Home Office of Magistrate at 6.00 'a..:r'nl. oln'thje..:'yery next day i.e., on 24.11.2003. Thus, the accused who was in police custody during the i.e., immediately prior to recording of confession H___was taken to the Home Office of the Magistrate at 6.00 a.m. on 24.11.2003 and the confession -40- statement was recorded. Even at the preliminary enquiry before recording i.e-, while the Magistrate expla'i'n'e'd«.tﬁh"e he is under no obligation at all t1o__mal<e sta_te'menvtcanvd'3L that he is free to refrain fr'orn*.makir'agV_ 'any sitaltement V as he pleases, the. present along with theAVaccuse:d_v:'in_ Magistrate.

Only therea_fte;fg:',..,:"that to recording of out of the Home Officeilof clearly means that the accused of the police till just prior to y,r_ecosrding"'of_,his confessional statement. Hence, it confessional statement so made by be said to be free from threat, force, coercion. We also find that the Magistrate if given the accused reasonable time to reflect. spite of specific rule that the accused should be kept in judicial custody while he was given time to \f"n -41- reflect, the Magistrate in total disregard to the said specific instruction has kept the accused inV.V7p:orl.iVce custody.

From the above, it is clearAlVt'hata.V the-:'pAro's_ec'ut'iVon'« has not proved any of the circuimstancesﬂrelv'ie'd by it to connect the accusedu"wi"t'l1 _theV"cri'rune'. It is by now well a case rests squarely inference of guilt can --all the incriminating facts and to be incompatible with or the guilt of any other. pers'o_rj.wThe"- circumstances from which an gynferiencfe to tvhemguilt of the accused is drawn have reasonable doubt and have to be shown.«__'to-be closely connected with the principal fact sou__ght"':to be inferred from those circumstances. W/l/lheilre the case depends upon the conclusion drawn \/' _42- from circumstances the cumulative circumstances must be such was to.~"nveg'ativ.:egthce V innocence of the accused and b»ring"th'eAoffences ih-«omie beyond any reasonable cio_ub_t. "Gr:eat_ taken in evaluating circumVAst.ainvt.igal.._gevidence if the evidence relied on of two inferences, tyhejone in must be accepteq_:_ must be found to and the cumulative effectl"-Oi" all so established must be conSis_Vtent°'on_'lyV with"v_th'e'lVhypothesis of guilt. the circumstantial evidence should un'mista'i<'a:bl$;"VVpoint to one and only one conclusion that the accused person and none other A pyerpetuated the crime. If the circumstances proved in particular case are not inconsistent with the innocence of the accused and if they are susceptible for any rational understanding, no conviction can lie. \\//N _43_ Judged from this stand point, it is not possible to reverse the order of acquittal of the accused"'-i:n--«.:t'he matter. The circumstantial evidence on "

not unmistakably point to one and-onlyuone:"conclus~iol'n that it is the accused and nonelA1'o'_the_rpelr'p_et*ua'tecl"the~, crime.

Having regard record, the Trial Court is justified"i'n*.a:cqVuiAttsi.n_'g.'accu"s'ed Nos.2 to 6. The concllllusions arrived at by the----Cou:rt"be'lQi.A/ proper. It is by now well would not normally interfere jtid'g--rnent and order of acquittal in the Tr'ia'i"""Court has taken one of the two poﬁslsia.h:|:e_;:view:s'_;while acquitting the accused. The view taken Trial Court in the matter on hand is one thesitwo possible views under the facts and «..circumstances of the case.

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Karnataka High Court