KUNHIMON ALIAS Vs. STATE

JUDGEMENT

(1.) Petitioner, accused 1 to 5 in S. C. No. 57 of 1983 on the file of the Assistant Sessions Court, Ottappalam, stood trial for offences punishable under Ss. 342 and 376 read with S. 34, I.P.C. Cri. R. P. No. 360 of 1984 is by A-1, Cri. R.P. No. 358 of 1984 by A2, Cri. R.P. No. 362 of 1984 by A3 and A4. and Cri. R.P. No. 367 of 1984 by A5. First accused a taxi driver - is alleged to have forcibly taken PW 2 in his taxi at or about 2 A.M. on the night of 2-9-1982, to the Deluxe lodge, Pattambi where he and the others committed rape on her against her will, and without her consent. PW 2 a seventeen year old girl is a victim of Epilepsy and Somnambulism. On the fateful night she went out of her house in her sleep, and reached the Kodumunda railway gate around 2 a.m. The railway gate was closed and a train passedby, whisling, waking her up, bringing her to her senses. She says, she was mortally frightened and perturbed. Then A1 came, in his taxi that way and asked her if she would go with him. She told him that she was not that sort, and walked away. Upon this, he caught her by her hand and pulled her into the taxi, and drove to the Deluxe Lodge. Apparently A2, son of the proprietor of Delux Lodge, A5 nephew of the proprietor and the other accused are his close friends. On reaching Deluxe Lodge A1 called A2. When A2 and the other accused came down, first accused switched on the roof light of the car, and showed PW 2. A2 suggested that they would take her into the hotel. Evidence shows, that there is a narrow passage between Deluxe Lodge and the adjoining building, leading to a terraced roof, from which Delux Lodge could be reached, by crossing over. PW 2 was taken to the terrace, and carried across to the Delux Lodge to Room No. 3. All the accused made overtures to her, but A1 suggested that he will have her first, and that the others could then take turns. PW 2 was undressed by the first accused, and thereafter he effected forcible penetration. After the act, he called the second accused in, and likewise all the five accused had sexual intercourse with her. She swooned in the meanwhile. In the morning, one of the accused sprinkled cold water on her face, and she came back to her senses. Then, A1 and A2 took her to the bath room, bathed her, and brought her back to the room.

(2.) By then, PW 1 paternal uncle of PW 2, learnt from PWs. 4 and 5 that she had been taken to the Deluxe Lodge. He with one Unniyankutty, reached the room and found her lying on a cot in a state of fatigue. A1 who was in the room, made good his escape on seeing PW 1. They took PW 2 to the Government Hospital, where PW 6 the doctor examined her. PW 6 found that she was crying not responsive, and was disoriented. Ext. P 8 intimation, was sent to the police and a case was registered. PW 6 the doctor noticed nervous symptoms, scratches and bruises on buttocks and lateral sides of the thighs, and a tear in the vaginal mycous membrane on the posterior wall. He also found epithelial and red blood cells in the vagina. She was treated in the hospital for a week, and discharged on 9-9-1982. PW 6 noticed that she was mentally abnormal, and showed wandering tendencies.

(3.) The case turns largely on the evidence of PW 2, to some extent corroborated by the evidence of PWs. 1, 4, 5 and 6. PW 1 saw PW 2, crying and fatigued - PWs. 4 and 5 saw her being carried to the Deluxe hotel, while they were returning after the second show cinema and were in search of some vehicle, going to their place. Injuries noted on PW 2, and her disoriented state noticed by PW 6 lend assurance to her version of sexual assault.