JUDGMENT
1. We have heard the learned Counsels on both sides at length and we have also done a thorough review of the record. We propose to confine this judgment to very limited aspects of the case for the simple reason that even though the allegation of the complainant P.W. 2-Kempamma is to the effect that the five accused persons are alleged to have trespassed into her house on the night of 3rd September, 1987 and committed gang rape on her, the admitted position is that the complaint was ultimately registered only after 11/2 years. The grievance projected is that even though the matter was reported to the police on the next day, that they refused to entertain the complaint and that this state of affairs continued despite complaints to higher authorities and that ultimately, a complaint was addressed to the Governor and pursuant to this, instructions were issued to the COD to take action in the case. One and a half years later, the offence was registered and the statements were recorded and in view of this position, there is absolutely zero medical evidence on record. Kempamma states that she had gone to the Hunsur Hospital after four days, as the accused had threatened her with death if she either disclosed the incident or if she tried to leave the place initially. There is reference to the murder of the younger brother of accused 1 in which, Kempamma’s husband was suspected and the admitted position is that he had left the village and came back only after about two months. In this confused state of affairs, the investigation commenced after one and a half years and the trial commenced after another about five years. Undoubtedly, the prosecution has suffered very much because of this delay. Kempamma has given evidence which squarely accuses the accused 1 to 5 of having entered the house at night, of having committed gang rape on her and also of having stolen some small items of jewellery from her person. The jewellery has not been recovered and as far as the incident in question apart from the evidence of P.W. 2-Kempamma, P.W. 1 Lakshmamma who is the mother-in-law, though not an eye-witness, she corroborates the version of the victim. P.W. 3-Yashoda is the daughter who was sleeping in the house and who has corroborated the incident and we also have the evidence of P. Ws. 4 to 6 who are really the neighbours and who lend some support to the version of Kempamma. The learned Trial Judge has acquitted the accused principally on the ground that admittedly, the atmosphere in the village was supercharged because of the Gram Panchayat elections and furthermore, because of the murder case and hostility between the parties and the delay factor which has been held to be fatal to the prosecution. The total lack of medical evidence has undoubtedly gone against the prosecution.
2. The only submission canvassed by the learned Public Prosecutor is that there is absolutely no ground on which, the Court could have discarded the evidence of the aforesaid witnesses and his vehement submission is that having regard to the fact that P.W. 2 has persisted with her complaint for 11/2 years until action was taken, coupled with the fact that even at the trial, after several years, she has given cogent evidence on oath howsoever embarrassing and shameful it may be to herself and insofar as four of the P. Ws. have lent support to this evidence, that the Court must act on the basis of this material and record a conviction.
3. The learned Advocate who represents the accused has undoubtedly pointed out to us that not only is there medical evidence on record, but there is an admission from Kempamma that she had not sustained any injuries. The more important submission is that the hostilities between the parties were at such a high pitch, that there is every reason to believe that this entire incident has been fabricated for an ulterior purpose. Furthermore, the learned Advocate submitted that if the Court were to strictly evaluate the evidence on record, it will be seen that P. Ws. 1 and 3 to 6 have admittedly not witnessed the incident and that consequently, it would mean basing a conviction on the uncorroborated evidence of P.W. 2 in a case where the complaint itself has been registered after 11/2 years. We have no hesitation in recording that under normal circumstances, we would have straightaway accepted the defence submissions as the Trial Court has done and confirmed the order of acquittal.
4. What distinguishes the present case is the fact that Kempamma who is a rustic villager has given very clear and cogent evidence even ten years after the incident and has not changed her version at all. She states in terms that the accused persons had trespassed into the house by removing the tiles at night, that she was gang raped by terrorising her on the ground that she would be killed if she raised an alarm or if she resisted, that her ornaments were taken and that she even got so desperate because of the incident that she attempted to commit suicide. We also have on record the fact that the matter was reported to the elders in the village and that several meetings came to be held pursuant to this complaint. We also find that Kempamma and her husband have persisted with their complaint to the higher authorities right upto the Governor of the State and from all of this material, what clearly emerges is the fact that some incident of seriousness had in fact taken place. Kempamma and her husband are simple villagers and it is too much to assume that persons of this status would have the courage to fabricate a serious incident of this type and would then have the courage to persist with it right upto the highest authority in the State. It is true that because of the passage of time, the medical evidence, the forensic evidence and other supportive evidence have all disappeared but, in our considered view, the sum total of this position would be that the accused would get the benefit as far as the commission of the major offence is concerned as it would be too hazardous in the absence of medical and forensic evidence for us to record a conviction for the serious offences under Section 376 and that too, insofar as this is a case of gang rape where the minimum sentence would be ten years rigorous imprisonment.
5. Though we have given the benefit to the accused as far as the major offence is concerned, they would still be liable to be convicted for the offences punishable under Section 354 read with Section 34 of the Indian Penal Code and Section 451 read with Section 34 of the Indian Penal Code. In modification of the order passed by the Trial Court, we accordingly convict the accused for the aforesaid offences.
6. On the question of sentence, we are required to take note of many factors including the time factor and the status of the accused as also the facts and circumstances of the case. After evaluating all of these, we direct that the accused shall undergo sentence for whatever period undergone by them and that they shall pay a fine quantified at Rs. 1,000/- each. No in default sentence is being awarded. As a special case, having regard to the status of the accused they are afforded the liberty of depositing the fine amount in the Trial Court within an outer limit of 12 weeks from today. If the amount is not deposited within that period, the Trial Court to recover the said amount Once the amount is recovered, the whole of the amount to be paid over to P.W. 2-Kempamma as and by way of compensation.
The appeal succeeds to this extent and stands disposed off. The bail bonds of the accused to stand cancelled.