KUNJUMON Vs. STATE OF KERALA

JUDGEMENT

(1.) A child aged just 10 years is allegedly raped by her own father. The father stood trial for offence under Section 376(2)(f) of Indian Penal Code ('IPC for short). After trial, he was found guilty by Additional Sessions Court and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.25,000/- and in default, to undergo rigorous imprisonment for one year. Fine amount if realised, was ordered to be paid to PW 2, the victim as compensation. Set off was also allowed. The said conviction and sentence are challenged in this appeal.

(2.) PROSECUTION case, briefly: PW 2 is born in the wedlock of appellant and CW 3 and she was residing with her father, grand mother (PW 1), and brother. Her mother was away, working at Bangalore in connection with her job. On the crucial day, on 11/11/2006 in the evening, PW 2 had gone to her maternal aunt's house to watch TV and while she was returning, she met appellant on the way and they came home together. At that time, nobody was present in the house. PW 1, the grandmother of PW 2 had gone to a neighbouring house to get eggs.

(3.) PROSECUTION examined PW 1 to PW 12 and marked Ext. P1 to P9 and MO1 to MO5. The accused did not adduce any evidence, but he only stated that he is innocent. He marked Ext. D1, a portion of the statement of PW 2 given to the police. On an analysis of the evidence in detail and by placing reliance upon a decision of this Court reported in Chenthamara v. State of Kerala1 Trial Court found that there was partial penetration and the act committed by accused constitute rape. The contention of the appellant that offence made out is only under Section 377 IPC, since no semen was detected etc., was rejected.