GOPINATHAN SURESH Vs. STATE OF KERALA

JUDGEMENT

(1.) Courts below concurrently found first petitioner guilty of offences under S.450 and 376 I.P.C. and second petitioner of offences under S.450 and 376 read with S.34 I.P.C. Charge found is that petitioners entered the house of P.W. 1, a twenty one year old harijan girl, at or about 7 p.m. on 23rd August 1983, that they pushed her down, that A-1 committed rape on her while A-2 pressed her down, and that after A-1 committed rape A-2 also attempted to commit rape. Mean while, P.W. 1 took out the cloth with which she was gagged and cried out, attracting attention of P.W. 3, who then came on the scene. She then called out to P.W. 2, and she too came. PWs 2 and 3 are sisters of P.W. 1. Petitioners then attempted to run away, but P.W. 3 caught hold of first petitioner. P.W. 1 then told P.W. 3, not to let go first petitioner, saying that 'he had ruined her'. First petitioner assaulted PWs 2 and 3 and made good his escape. Second petitioner also fled, in the meanwhile. PWs 2 and 3 would say that they saw their sister P.W. 1, 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, P.W. 4 Doctor examined PWs 2 and 3, and referred P.W. 1 to the Lady Doctor P.W. 8. P.W. 4 noticed tenderness on the cheek, eyelids and scapula of P.W. 2, and issued Ext. P-1 Certificate. Injuries on temporal region and tenderness in the abdomen were noticed on P.W. 3. Ext. P-2 is the Certificate in respect of P.W. 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 on first petitioner.

(2.) P.W. 8 Lady Doctor who examined P.W. 1, noticed abrasions in sternum, left forearm and left wrist. Ext. P-5 is the wound certificate. P.W. 1 told P.W. 8 that she was raped at 7 p.m. on that day. P.W. 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 PWs 1 to 3 and medical evidence relating to injuries on P.W. 1 and first petitioner, to find the charge. Learned counsel for petitioners would submit that absence of injuries on the genitalia of P.W. 1, would negative the case of rape. According to P.W. 8, if a woman is subjected to rape during menstrual period, injuries are not likely, due to vagina being moist. 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. AIR 1981 SC 361 and in Rafiq v. State AIR 1981 SC 559 , to the effect that, absence of injuries does not negative a charge of rape.