State Of Karnataka vs Yogesha M N
2022 Latest Caselaw 1164 Kant

                                             R
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 27TH DAY OF JANUARY, 2022

                       PRESENT

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR
                         AND
         THE HON'BLE MR. JUSTICE P.N.DESAI

         CRIMINAL APPEAL NO. 1285 OF 2019
BETWEEN:
State of Karnataka
By Akkur Police Station
Rep. by State Public Prosecutor
High Court Building
Bengaluru - 560 001.
                                       ...Appellant

(By Sri. Rahul Rai .K - HCGP)

AND:
1.     Yogesha M.N
       S/o Nagaraju
       Aged about 25 years

2.     Manju
       S/o Babu
       Aged about 24 years

3.     Prasannakumar M.C.
       S/o Chinnagiri
       Aged about 25 years
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4.   Suresh P
     S/o Puttanna
     Aged about 25 years

5.   Pavan
     S/o Mariswamy
     Aged about 24 years

6.   Manu
     S/o Annaiah
     Aged about 24 years

All are R/o Menasiganahalli Village
Virupakshipura Hobli
Channapatna Taluk
Ramanagara District - 26.

7.   Kumar
     S/o Nagaraju
     R/o Menasiganahalli Village
     Virupakshipura Hobli
     Channapatna Taluk
     Ramanagara District - 26.
                                          ...Respondents

(By Sri. Bhaskara Heggade C.K.-Advocate for
Respondents No.-2 to R-6; R-7 - served, unrepresented;
Vide court order dated 22.04.2021, appeal against
Respondent No.1 abated)

       This Criminal Appeal filed under Sec.378(1) and
(3) of Criminal Procedure Code, by the Advocate for the
appellant praying to (i) grant leave to appeal against the
judgment and order of acquittal dated 09.04.2018 on
the file of the I-Addl. District and Sessions Judge,
Ramanagara in Spl.Case No.97/2014 and Special Case
No.101/2015, acquitting the accused/respondents for
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an offence punishable under Sections 366-A, 114 r/w
Sec.149 of IPC and Sec. 6 of the POCSO Act;
(ii) set aside the judgment dated 09.04.2018 on the file
of the I-Addl. District and Sessions Judge, Ramanagara
in Spl.Case No.97/2014 and Spl. Case No.101/2015
and etc,.

      This criminal appeal coming on for orders through
video conference this day, K. Somashekar .J delivered
the following:

                   JUDGMENT

The appeal is set down for Orders. But learned

HCGP Shri Rahul Rai K for the State is present before

court physically and submits that Accused No.1 /

Yogesha M.N. S/o. Nagaraju has died during the

pendency of this appeal. Therefore, the appeal against

him stands abated according to the provision of Section

394(2) of the Cr.P.C. This submission made by the

learned HCGP for the State is placed on record and also

the fair submission made by the learned HCGP for the

State is acknowledged.

Accused No.1 as well as the remaining accused in

Spl.Case No.97/2014 and Spl. Case No.101/2015 have

faced trial before the Trial Court, but the case has

ended in acquittal against all of the accused. The entire

role is made against Accused No.1 only. But, the case

against the said Accused No.1 stands abated as under

Section 394(2) Cr.P.C. Therefore, the matter even

though is set down for Orders, it is taken up for final

disposal, where the remaining accused Nos.2 to 7 are

arraigned as respondent Nos.2 to 7 in this appeal.

Their counsel during the course of trial has taken

defence and the same can be seen in the impugned

judgment of acquittal rendered by the Trial Court and

the cross-examination relating to the witnesses have

been let in by the prosecution, which is taken into

consideration in this appeal also. The remaining

Accused Nos.2 to 6 have engaged the services of the

learned counsel Shri Bhaskara Heggade C.K. However,

process though served upon Respondent No.7 herein

who is Accused No.7 in Spl.C.No.101/2015, but he has

remained absent and unrepresented. However, this

Accused No.7 also had faced trial before the Trial Court

in respect of which the Trial Court has rendered a

common judgment of acquittal. Therefore, process

against him also be taken into consideration relating to

keeping in view the role of each one of the accused, and

more importantly except Accused No.1 who is no more,

the remaining accused only to participate in the

proceedings as alleged. Therefore, the submission of

the learned counsel Shri Bhaskara Heggade C.K who is

on record for Accused Nos.2 to 6 / Respondents 2 to 6

is taken into consideration in this appeal whereby the

accused have engaged his services. This observation is

made in this appeal.

2. This appeal is preferred by the State challenging

the acquittal judgment rendered by the Trial Court in a

common judgment of Spl.C.No.97/2014 and

Spl.C.No.101/2015 dated 09.04.2018. By the said

judgment, the respondents herein who were arraigned

as accused before the Trial Court have been acquitted of

the offences punishable under Sections 366A, 114 read

with Section 149 of the IPC, 1860 and so also for

offences under Section 6 of the POCSO Act, 2012. This

appeal is preferred by the State by urging various

grounds and seeking intervention of the acquittal

judgment rendered by the Trial Court by re-visiting the

entire evidence inclusive of exhibited documents and

thereby to set aside the acquittal judgment rendered by

the Trial Court and thereafter to convict the accused for

the offences leveled against them.

3. Heard the learned HCGP for the State who is

present before court physically and perused the

impugned judgment of acquittal in common rendered by

the Trial Court in Spl.C.No.97/2014 in respect of

Accused Nos.1 to 5 and Accused No.7. But in this case,

Accused No.1 Yogesha M.N. had faced trial for the

alleged offences before the Trial Court in the aforesaid

case and the case had ended in acquittal. More so, he

is the main accused relating to the incident narrated in

the complaint filed by the gravamen of the incident,

based upon which criminal law was set into motion.

Insofar as the case in Spl.C.No.101/2015, it is in

respect of Accused No.6 namely Kumar S/o. Nagaraju

and even the case against him had also ended in

acquittal inclusive of Accused Nos.1 to 5 and 7 in

Spl.C.No.97/2014. The prosecution had let in evidence

by subjecting to examination PW-1 to PW-16 and got

marked several documents at Exhibits P1 to P23. But

no material objects were marked on the part of the

prosecution and there is no defence evidence on the

part of the accused even after conclusion of the trial and

even after recording the statement of the accused as

contemplated under Section 313 of the Cr.P.C. The

Trial Court, after hearing the arguments of both the

prosecution and defence and examining the material

documents both oral and documentary, acquitted the

accused by its impugned judgment. It is this judgment

which is under challenge in this appeal by urging

various grounds.

4. Heard the arguments on the part of the learned

HCGP for the State, and the learned counsel Shri

Bhaskara Heggade C.K. for Respondents 2 to 6 who is

on record. Respondent No.7 though served, has

remained absent and unrepresented. But appeal against

Respondent No.1 / accused No.1 stands abated due to

the death of the accused during the pendency of the

appeal. The same has been maintained in this matter

vide order dated 22.04.2021. Role of Respondent No.7 /

accused and other co-accused are in conformity with

the role* made by Respondent Nos.2 to 6 who have

engaged the services of the counsel Shri Bhaskara

Heggade C.K. Hence, the contentions in respect of

Respondent Nos.2 to 6 holds good for Respondent No.7

as well.

5. Factual matrix of the appeal are as under:

It transpires from the case of the prosecution that

on 21.07.2014 at around 7.30 p.m. at Menasiganahalli

village within the limits of Akkur Police Station, Accused

no.1 namely Yogesha M.N. S/o. Nagaraju with the

assistance of co-accused Nos.2 to 7 had come over on a

motor cycle bearing No.KA-51/K-1931 which belonged

to Accused No.2 namely Manju S/o. Babu and had

abducted a minor girl namely CW-2 from her house.

This motorcycle has been utilized by this accused for

abducting the victim CW-2 who was a minor.

Subsequent to abducting the victim girl, they had

reached Bommenahalli of Bhadravathi Taluk,

Shivamogga District. The victim girl was said to be

confined in the house of a relative of Accused No.1

namely Yogesha S/o. Nagaraju, where the said Accused

No.1 had committed aggravated sexual assault upon the

victim girl between 27.07.2014 and 28.07.2014.

Accused No.1 however, died during the pendency of the

present appeal and as a result, the appeal against him

stands abated. The accused are said to have abducted

the said victim girl as on 21.07.2014 at around 7.30

p.m. In pursuance of the act of the accused as narrated

in the complaint filed by the complainant, criminal law

was set into motion. Subsequent to registration of the

crime against the accused by the police having

jurisdiction, the I.O. has taken up the case for

investigation and thorough investigation has been done

and laid a charge-sheet against the accused persons.

6. The charge-sheet has been laid before the court

having jurisdiction and on receipt of the charge-sheet by

the Committal Court, the Committal Court had passed

an order as under Section 209 Cr.P.C. by complying

with the provisions of Sections 207 and 208 of the

Cr.P.C. Subsequent to committing the case to the

Sessions Court for trial, the case was assigned as

Spl.C.No.97/2014 and Spl.C.No.101/2015 in respect of

Accused Nos.1 to 7. Subsequent to committing the case

to the Sessions Court for trial, charges were framed

against the accused whereby the accused did not plead

guilty but claimed to be tried. Accordingly, plea of the

accused was recorded separately.

Subsequent to framing of charge against the

accused, PW-1 to PW-16 have been subjected to

examination on the part of the prosecution and got

marked several documents at Exhibits P1 to P23 but no

material objections have been got marked on the part of

the prosecution and even there is no defence evidence

and there is no exhibited documents on the part of the

defence side. The victim girl CW-2 who was abducted

by the accused has given her statement as

contemplated under Section 164 Cr.P.C. as per Exhibit

P2.

7 PW-2 Mahadevamma is the complainant and

based upon her complaint criminal law was set into

motion by recording an FIR as per Exhibit P17, whereby

the I.O. / CW-28 had subscribed his signature. PW-2

was also subjected to examination on the part of the

prosecution. CW-28 being the I.O. had subscribed his

signature at Exhibit P3 / complaint and PW-2 had also

subscribed her signature at Exhibit P3 of the complaint.

PW-5 / Malavappa had given his statement as per

Exhibit P4 and PW-6 / Lakshmi being a mahazar

witness had subscribed her signature at Exhibit P5

which is marked as Exhibit P5(a).

PW-9 / Mahalinga, who is one of the mahazar

witnesses had been secured and he had subscribed his

signature at Exhibit P11 and mahazar has been drawn

by the I.O. during the course of investigation.

PW-7 / Srinivasa and PW-8 / Uma were secured

by the I.O. to act as mahazar witnesses and accordingly,

PW-16 / Nagaraju who is the I.O. drew the mahazar at

Exhibit P6 in their presence, whereby they had

subscribed their signatures. PW-16 being the I.O. drew

the mahazar at Exhibit P5 in the presence of PW-6

Lakshmi and whereby he had also subscribed his

signature.

8 It is relevant to refer that PW-16 being the I.O.,

during the course of investigation, he secured the Birth

Certificate of the victim as per Exhibit P12 and whereby

he had subscribed his signature at Exhibit P12(b) and

got subscribed the signature of one Narayan at Exhibit

P12(a).

9. Exhibit P7 to P10 are the photos and that

photos were also got marked on the part of the

prosecution to prove the guilt of the accused. PW-12

Dr. Kavitha examined the victim and issued a report as

per Exhibit P13 and subscribed her signature at Exhibit

P13(a). Exhibit P14 is the report of the accused who

was subjected to examination by the Doctor. PW-13 /

Dr. Basavaraju had subjected to examination the

accused and subscribed his signature. PW-14 /

Mahesha was secured as a witness and in his presence,

PW-16 / I.O. has conducted the mahazar at Exhibit P15

and both have subscribed their signatures.

Exhibit P18 is the mahazar and this mahazar has

been drawn by PW-16 being the CPI who is an I.O. and

he has done the investigation. Exhibit P19 and P20 are

the photos of the motor bike which had been used by

the accused to abduct the minor victim girl. Exhibits

P21 and P22 are the hand sketches, which sketches

had been drawn by the Investigating Agency during the

course of investigation in order to lay the charge-sheet

against the accused. Exhibit P23 is the FSL report and

this report has been secured by the I.O. during the

course of investigation. But all the documents at

Exhibits P1 to P23 have been included in the charge-

sheet laid by the I.O. against the accused before the

court having jurisdiction. Subsequent to committing

the case, the accused had faced trial and the case ended

in acquittal relating to the common judgment in

Spl.C.No.97/2014 in respect of Accused Nos.1 to 5 and

7 and Spl.C.No.101/2015 in respect of Accused No.6

namely Kumar S/o. S. Nagaraju.

10. This is the evidence let in by the prosecution

and also got marked several documents but the appeal

is nothing but continuity of proceedings and more so it

requires re-appreciation of the evidence and re-visiting

the evidence on the basis of the grounds urged by the

learned HCGP for the State by referring to the evidence

of the prosecution.

11. The contention made by the learned HCGP for

the State in this appeal is that the appellant who is

none other than the State is aggrieved by the judgment

of acquittal rendered by the Trial Court dated 9.4.2018

by its common judgment. But the prosecution even

though facilitated worthwhile evidence and subjected to

examination PW-1 to PW-16 and got marked Exhibits

P1 to P23 on the part of the prosecution to prove the

guilt of the accused, but the Trial Court did not

appreciate the material evidence inclusive of CW-2 being

a minor girl alleged to have been abducted by accused

No.1 with the assistance of co-accused Nos.2 to 7 and

committed sexual assault on her in his relative's house

situated in Bhadravathi in Shivamogga District.

12. PW-1 has specifically stated in his evidence on

the part of the prosecution that the accused had forcibly

entered into the house of the victim girl who is cited as

CW-1 and in the absence of her mother, with an

intention to commit sexual assault on her, had

abducted her and also had extended threat to her not to

disclose the incident to anyone as regards sexual

assault committed by him on the victim girl. It is only

after four months when enquired by the victim's mother

that she has disclosed about the alleged incident

narrated in the complaint, which is revealed from the

statement made by the victim as contemplated under

Section 164 of the Cr.P.C. Accused No.1 with the

assistance of co-accused had abducated the victim girl

in a motor bike and kept her in captivity in his relative's

house, where he had committed sexual assault on her.

This evidence is forthcoming on the part of the

prosecution to establish the prosecution theory, but the

Trial Court did not appreciate the evidence on the part

of the prosecution in a proper perspective. Merely

because there is no medical evidence relating to the

medical report on the part of the victim girl inclusive of

Accused No.1 relating to sexual assault, it cannot be

said that the entire case of the prosecution requires to

be thrown out and the prosecution did not establish the

guilt against the accused beyond all reasonable doubt.

13. The accused had faced trial not only for

offences under the IPC, 1860 but also for offences under

the POCSO Act, 2012, whereby the victim being a minor

girl was abducted by Accused No.1 with the assistance

of Accused Nos.2 to 7 with an intention of sexually

assaulting her. This evidence finds place on the part of

the prosecution. Therefore, in this appeal it requires for

re-appreciation of the evidence on record both oral and

documentary, since the Trial Court has misdirected to

consider the grounds urged in this appeal and hence

the learned HCGP seeks to set aside the common

judgment of acquittal rendered by the Trial Court by its

order dated 09.04.2018 and thereby to convict the

accused for offences under Sections 5(1) (m) and Section

6 of the POCSO Act, 2012 and also to convict the

accused for offences under Sections 366A, 114 read

with Section 149 of the IPC, 1860. These are all the

contentions made by the learned HCGP for the State

seeking to allow the appeal by considering the grounds

urged in this appeal and thereby to set-aside the

acquittal judgment rendered by the Trial Court in

common judgment in Spl.C.No.97/2014 and

Spl.C.No.101/2015 dated 09.04.2018 in respect of the

offences.

14. The entire case revolves around Accused No.1

namely Yogesha M.N., who with the assistance of co-

accused Nos.2 to 7 had abducted CW-2 who was a

minor in a motorcycle and thereby confined her in the

house of his relatives at Bhadravathi, Shivamogga.

PW-1 who is the victim girl had been subjected to

examination and even her mother PW-2 /

Mahadevamma was also subjected to examination on

the part of the prosecution and their evidence has been

appreciated by the Trial Court inclusive of the evidence

of PW-3 / Rajamma who is none other than the younger

sister of PW-2 / Mahadevamma. PW-4 / Ravikumara is

none other than the father of the victim. PW-5 /

Malavappa is the uncle of the victim who has stated in

his evidence that 3 years ago, PW-2 / Mahadevamma,

who is the mother of the victim had telephonically given

information to him in the morning hours informing him

that their daughter PW-2 who is the victim had been

abducted and she would bring them to his home.

Accordingly, at around 3.00 p.m., PW-2 Mahadevamma

had brought the victim and Accused No.1 Yogesha M.N.

to PW-5 Malavappa's house and they remained in his

house till 6.30 to 7.00 p.m. in the evening.

Subsequently that PW-2 Mahadevamma who is none

other than the mother of the victim, took both the victim

and accused no.1 to their village. But this PW-5

Malavappa who is the uncle of the victim and also

relative of PW-1 to PW-4, has turned hostile to the

evidence of the prosecution. This witness even though

has been subjected to cross-examination on the part of

the prosecution, nothing worthwhile has been elicited to

consider the evidence on the part of the prosecution to

arrive at the conclusion that the victim girl had been

abducted by Accused No.1 with the assistance of

co-accused Nos.2 to 7 with an intention of having

sexual assault on her.

PW-4 Ravikumar who is one of the witnesses and

also being the father of the victim girl has stated in his

evidence that he was living in the family consisting his

children, his wife and also his aunt. But he has stated

in his evidence that Accused No.1 Yogesha, with the

assistance of all other co-accused, had abducted his

daughter CW-2 who is a minor. His wife had

telephonically given information about the abduction of

his minor daughter. Consequently, he had rushed to

the house and made a search of his daughter but she

was not found and also could not be traced. Therefore,

he filed a complaint by approaching the Akkur P.S.

relating to missing of his daughter. But Akkur P.S. had

brought his daughter and Accused No.1 Yogesha. His

daughter CW-2, the victim had informed to them that

she was abducted by the accused and also that she was

sexually assaulted by Yogesha. But in the cross-

examination of PW-4, nothing worthwhile has been

elicited relating to the incident narrated in the

complaint filed by PW-2 at Exhibit P3, as per the

statement given by the victim girl as contemplated

under Section 164 of the Cr.P.C. at Exhibit P2, but runs

contrary to each other.

15. But at a cursory glance of the evidence of

PW-1 who is the victim girl and so also at a cursory

glance of the evidence of PW-2 / Mahadevamma, the

evidence of PW-4 / Ravikumar, the incident narrated in

the complaint at Exhibit P3 as well as the statement

given by the victim girl as per Exhibit P2, it is found

that they are all camouflaged and though these material

witnesses have been subjected to examination on the

part of the prosecution, but nothing worthwhile has

been elicited to prove the guilt of the accused.

PW-12 Dr. Kavitha though subjected to

examination the victim girl PW-1 and issued the report

at Exhibit P13 and PW-13 / Dr. Basavaraju though

subjected to examination the accused and issued a

medical report at Exhibit P14, but their evidence are not

corroborated with the evidence of the said witnesses

such as PW-1 / victim girl, PW-2 / Mahadevamma,

mother of the victim and PW-4 Ravikumar inclusive of

the evidence of PW-3 / Rajamma, PW-6 / Lakshmi,

PW-7 / Srinivasa and PW-8 / Uma. Though these

witnesses have been subjected to cross-examination

and even the mahazars have been marked as per

Exhibit P5, Exhibit P6, Exhibit P11, Exhibit P15 and

Exhibit P18, these are all mahazars conducted by PW-

16 being the I.O., but nothing worthwhile has been

elicited even in the fulcrum of the mahazar through

these witnesses. But, at a cursory glance of the

evidence of PW-1 / victim, PW-2 / mother of the victim

and PW-3, PW-4, PW-5, PW-6, they are close relatives to

the victim girl and also her family consisting of her

parents, nothing worthwhile has been elicited by the

prosecution to prove the guilt of the accused so as to

secure conviction relating to the offences of abduction of

the victim girl who is a minor and also as regards

having had sexual assault on the victim girl by

confining her in the relatives house of Yogesha situated

in Bhadravathi, Shivamogga District.

16. Merit of the statement is an important aspect

in the criminal justice delivery system. It is well-known

principle of law that reliance can be based on the

solitary statement of a witness on the part of the

prosecution if the court comes to the conclusion that

the said statement is the true and correct version of the

case of the prosecution. They are not concerned with

the number of witnesses examined by the prosecution

but only concerned with the merit of the statement of a

particular witness, where the appreciation of the

evidence is an important domain vested with the Trial

Court alone.

17. Insofar as the criminal justice delivery system

is concerned, it is the quality of evidence and not the

quantity of evidence which is required to be judged by

the court to place credence on the statement of

witnesses.

18. In the instant case, PW-1 to PW-16 have been

subjected to examination and several documents have

been got marked at Exhibits P1 to P23, including the

164 statement of the victim at Exhibit P2 and the

averments made in the complaint at Exhibit P3 and

mahazars had been conducted by PW-16 in the

presence of panch witnesses and so also photos were

collected at Exhibits P7 to P10 and documents namely

Birth Certificate of the victim girl and Medical report of

victim and Accused No.1 at Exhibit P13 and P14 were

got marked. But, in the matter of appreciation of

evidence of the witnesses, it is not number of witnesses

who are examined. Even though so many witnesses

have been subjected to examination by the prosecution,

but quality of the evidence is an important aspect

having a pivotal role for consideration. There is no

requirement in law that any particular number of

witnesses have to be examined to prove the guilt of the

accused. However, proving / disproving a fact is the

domain vested with the prosecution and the role made

by the defence counsel by subjecting to examination

prosecution witnesses. The evidence must be weighed

and not counted. The test is whether the evidence has

a ring of trust, is cogent, credible and trustworthy or

not. However, section 3 of the Indian Evidence Act,

1872 even to prove / disprove or not prove this domain

is equally vested with the prosecution and also an

important domain vested with the Trial Court relating to

appreciation of evidence. But in the instant case, even

though PW-1 to PW-16 were subjected to examination

and several documents have been got marked, no

worthwhile evidence has been elicited by the

prosecution. Whereas the law of evidence does not

require any particular number of witnesses to be

examined in proof of a given fact. Therefore, the

prerogative power is vested with the prosecution to

subject to examination witnesses and subject to get

marked documents. The court may classify the oral

testimony into three categories, namely,

i) wholly reliable,

ii) wholly unreliable, and

iii) neither wholly reliable nor wholly unreliable.

In the first two categories, there may be no difficulty in

accepting or discarding the testimony of the single

witness. The difficulty arises in the third category of

cases. The court has to be circumspect and has to look

for corroboration in material particulars by reliable

testimony, direct or circumstantial, before acting upon

testimony of a single witness.

19. In the instant case, PW-1 being the victim girl

and PW-2 Mahadevamma being the mother of the victim

girl have been subjected to examination and even other

witnesses were also examined. But no worthwhile

evidence has been facilitated by the prosecution to

prove the guilt of the accused and more particularly,

with regard to accused No.1 Yogesha M.N. who is

arraigned as Respondent No.1 in this appeal. But he

has died during the pendency of the appeal. Therefore,

the appeal against Respondent No.1 stands abated. But

the main allegation is as regards the role made by

Accused No.1 as according to the theory put forth by

the prosecution. Even though the appeal has been

preferred by the State which is a continuity of

proceedings, but the Trial Court has rightly appreciated

the evidence on record and has rightly come to the

conclusion that the prosecution did not establish the

guilt against the accused beyond all reasonable doubt to

secure conviction. Further, the case against the main

Accused No.1 has abated. Hence, in this appeal we

find that there are no warranting circumstances arising

to re-visit and even to re-appreciate the entire evidence

available on record. Consequently, the appeal deserves

to be rejected.

20. In view of the aforesaid reasons and findings,

we are of the opinion that the appeal does not have any

bone of contention and there is no substance to call for

any interference. Accordingly, we proceed to pass the

following:

ORDER

The appeal preferred by the State under Section

378(1) and (3) of the Cr.P.C. is hereby rejected.

Consequently, the common acquittal judgment in

Spl.Case No.97/2014 and Spl. Case No.101/2015 dated

09.04.2018 is hereby confirmed.

If the accused / respondents have executed any

bail bond, the same shall stand cancelled.

Sd/-

JUDGE

Sd/-

JUDGE KS