STATE Vs. DASEGOWDA

JUDGEMENT

(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 1 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 1 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 embairassing 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 1 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.