GOPINATHAN SINGH Vs. STATE OF KERALA

JUDGEMENT

(1.) Courts below concurrently found first petitioner guilty of offences under Sections 450 and 376 IPC, and second petitioner of offences under Sections 450 and 376 read with Section 34 IPC. Charge found is that petitioners entered the house of PW 1, a twenty one year old harijan girl, at or about 7 p.m. on 23-8-1983, that they pushed her down, that A-I committed rape on her while A-2 pressed her down, and that after A-i committed rape A-2 also attempted to commit rape. Meanwhile, PW 1 took out the cloth with which she Was gagged and cried out, attracting attention of PW 3, who then came on the scene She then called out to PW 2, and she too came. PW5. 2 and 3 are sisters of PW 1. Petitioners then attempted to run away, but PW 3 caught hold of first petitioner. PW 1 then told PW 3, not to let go first petitioner, saying that he had ruined her. First petitioner assaulted PW5. 2 and 3 and made good his escape. Second petitioner also filed the meanwhile. PW5 2 and 3 would say that they saw their sister PW1, in tattered clothes. The three sisters went to the Police Station. Instead of registering a report, they were asked to proceed to the hospital, promising that Police also would reach there immediately. At the hospital, PW 4 Doctor examined PW5. 2 and 3, and referred PW 1 to the Lady Doctor PW 8. PW 4 noticed tenderness on the check, eye-lids and scapula of PW 2, and issued Ext. P 1 Certificate. Injuries on temporal region and tenderness in the abdomen were noticed on PW 3. Ext P 2 is the Certificate in respect of PW 3. He examined first petitioner also, who had reached the hospital meanwhile, and noticed abrasions on the scrotum, scapular region, and both knees. Ext. P 3 is the Certificate in respect of the injuries of first petitioner.

(2.) PW 8 Lady Doctor who examined PW 1, noticed abrasions in sternum, left forearm and left wrist. Ext. P 5 is the wound certificate. PW 1 told P 8 that she was raped at 7 p.m. on that day. PW 8 took vaginal swabs, but sent them for examination only after ten days. The report was negative. No vaginal injuries were noticed.

(3.) Courts below relied on the evidence of PW5. 1 to 3 and medical evidence relating to injuries on PW 1 and first petitioner, to find the charge. Learned counsel for petitioners would submit that absence of injuries on the genitalia of PW I, would negative the case of rape. According to PW 8, if a woman is subjected to rape during menstrual period, injuries are not likely, due to vagina being most Therefore, absence of injuries is not conclusive one way or the other. It is pertinent to notice the decisions of the Supreme Court in Harpal Singh and others v. State of H.P.1 and in Rafiq v. State2, to the effect that, absence of injuries does not negative a charge of rape.