XXXXXX v. State of Kerala

Crl. Appeal No. 923/2020 : 1 : IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR. JUSTICE JOHNSON JOHN FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 CRL.A NO. 923 OF 2020 CRIME NO.729/2013 OF Kalpakanchery Police Station, Malappuram JUDGMENT DATED 04.07.2016 IN SC 439/2014 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES AGAINST CHILDREN (ADDITIONAL SESSIONS COURT-I), MANJERI ## APPELLANT/ACCUSED: XXXXXX. AGED 48 YEARS XXXXXXXX BY ADVS. PADMALAYAN.P.P. P.RAHIM P.A.JOSEPH (J-1448) ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, VALANCHERRY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO. 729/2013, KALPAKANCHERY POLICE STATION) BY ADV SMT. AMBIKA DEVI S, SPL. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.12.2023, THE COURT ON 22.12.2023 DAY DELIVERED THE FOLLOWING: Crl. Appeal No. 923/2020 : 2 : ## **P.B. SURESH KUMAR & JOHNSON JOHN, JJ.** --------------------------------------------------------Crl. Appeal No. 923 of 2020 -------------------------------------------------------Dated this the 22[nd ] day of December, 2023. ## **JUDGMENT** ## Johnson John, J **.** In this appeal filed under Section 374(2) Cr.P.C., the appellant, who is the sole accused in S.C. No. 439/2014 on the file of the Special Court for the trial of offences against children (Additional Sessions Court-I), Manjeri, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 376 (2)(f)(i)(n) of IPC and Section 5(l) (m)(n) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘Act, 2012’ for short) and Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. 2. The prosecution case is that the accused is the father of the victim minor girl aged 12 years and while they were residing in a rented house at Panickerpady, the accused came drunk to the house on a day in the first week of September, 2013, called the victim girl by telling that he will give Rs.50/- to her and started to caress her body and he pinched on her private parts. At that time, the mother of the victim had gone to a house in the neighbourhood. The accused kissed the victim on her lips, removed her dress and Crl. Appeal No. 923/2020 : 3 : rubbed his penis on her vulva and when the victim felt pain and tried to wriggle out and run away, the accused held her back putting her shoal around her neck and after pressing her chest with his hand, the accused asked the victim to suck his penis and when the victim refused, he slapped her on her head and face, and out of fear, she sucked his penis. The accused repeated such acts on the subsequent days by beating her and threatening that he will kill her if in case she discloses the incident to others. Thereafter, on 13.11.2013, at about 9 pm., when her mother went out of the house, the accused took the victim inside the room and after closing the door and removing her clothes, he repeated the acts and when the victim cried, the accused bit on her face and beat her. On hearing the cries of the victim, her mother came there and then the victim told her mother about the acts committed by her father and thereafter, on the next day her mother took her to the police station and subsequently the crime was registered based on Exhibit P2 FIS and after completing the investigation, PW12, Inspector of Police, Valanchery filed the final report and the same was taken on file as S.C. No. 439 of 2014. 3. When the accused was produced before the Special Court, he was furnished with the copies of all prosecution records and on 18.01.2016, the court framed charge for the offences punishable Crl. Appeal No. 923/2020 : 4 : under Sections 376(2)(f)(i)(n), of IPC and Section 5(l)(m)(n) r/w Section 6 of the Act, 2012 and Section 23 of the Act, 2000 , which was read over and explained to the accused, to which he pleaded not guilty. The prosecution examined PWs 1 to 14 and marked Exhibits P1 to P12 and Mos 1 and 2 to prove the case. 4. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. 5. Since the trial court found that it is not a fit case to acquit the accused under Section 232 Cr.P.C, the accused was called upon to enter on his defence. But, no defence was adduced on the side of the accused. 6. On an appraisal of the evidence on record, the trial court found the accused guilty of offences punishable under Section 376(2)(f)(i)(n) of IPC and Section 5(l)(m)(n) r/w Section 6 of the Act, 2012 and Section 23 of the Act, 2000. The accused was accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default to pay the fine, to undergo imprisonment for six months for the offence under Section 376(2)(f)(i) and (n) of IPC; imprisonment for life and to pay Crl. Appeal No. 923/2020 : 5 : Rs.10,000/- and in default to pay the fine, to undergo imprisonment for six months for the offence under Section 5(l)(m) and (n) r/w Section 6 of the Act, 2012; and to undergo imprisonment for six months under Section 23 of the Act, 2000. The substantive sentences were directed to run concurrently. It was also ordered that entitlement for set off of remand period is subject to remission or commutation of sentence by appropriate authorities under Section 433 and 433A of Cr.P.C. The accused is aggrieved by the conviction and sentence passed against him and hence this appeal. 7. Heard Sri. Padmalayan P.P., the learned counsel for the appellant and also Smt. Ambika Devi S., Sr. Public Prosecutor. 8. The learned counsel for the appellant did not dispute the relationship between the accused and the victim. The fact that the victim was residing with the accused at the relevant period is also not disputed. The main arguments advanced on behalf of the accused are: (i) the conviction on the sole testimony of PW2, the victim, is not possible in this case as her testimony is not of sterling quality; (ii) PW3, the mother of the victim is having illicit relation with PW4 and when the accused happened to witness the same, he is falsely implicated in this case; and (iii) no proper investigation is conducted. Crl. Appeal No. 923/2020 : 6 : 9. The learned counsel for the appellant relying on the dictum laid down in _**Santhosh Prasad @ Santhosh Kumar v. State of Bihar**_ [2020 KHC 6155], argued that the sole testimony of the victim cannot be relied on to find the accused guilty of the offence alleged against him as her testimony is not of sterling quality. Among the witnesses examined on the side of the prosecution, PW2, is the victim. According to the learned counsel for the appellant, there are material discrepancies, contradictions, inconsistencies, embellishments and variations in the deposition of PW2 and that it was held in _**Santoth Prasad’**_ **s** case that if the conviction has to be based on the sole testimony of the victim in a rape case, the testimony of the victim must be of sterling quality. In **Santhosh Prasad’s** case, it was held that to test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness, and what would be more relevant is the consistency of the statement right from the starting point till the end, and further such witness should be able to withstand any length of cross examination. It is true that delay in registration of FIR, lack of medical evidence, material inconsistencies in the statement of the victim when compared to the statement of the other witnesses are factors that would persuade a court to look for Crl. Appeal No. 923/2020 : 7 : corroboration before convicting the accused based on the sole testimony of the victim. 10. Exhibit P2 First Information Statement of the victim was recorded by PW10, A.S.I of Kalpakanchery Police Station at 13 hours on 14.11.2013 in the presence of the mother of the victim and a Woman Civil Police Officer 3925, Bushra. In Exhibit P2, the victim girl has narrated the overt acts committed against her by her father. It is stated that at the relevant time, she was studying in 6[th ] Standard and residing with her father, mother and siblings in a rented quarters at Panickerpady. It is stated in Exhibit P2 that her father is an autorickshaw driver and he used to consume liquor and during the first week of the last September, her father told her that he will give Rs. 50 to her and at that time, her mother had gone to a neighbouring house and her father started to caress her body and pinched on that part of her body used for urinating and her father kissed on her lips, removed her dress and rubbed his thing used for urinating on that part of her body used for urinating and when the victim felt pain and tried to wriggle out and run away, the accused held her back putting her shoal around her neck. 11. It is stated in Exhibit P2 that her father pressed on her chest and asked her to suck his thing used for urinating and when the victim refused, he slapped on her head and face and out of fear, Crl. Appeal No. 923/2020 : 8 : she sucked his thing used for urinating. It is further stated in Exhibit P2 that her father repeated such acts on the subsequent days by threatening and beating her and thereafter, on 13.11.2013 at about 9 pm., while her mother was out of the house, the accused took her inside the room and after closing the door and removing her clothes, he repeated the acts, which he used to commit earlier and when she cried, her father bit her on the face and beat her and he also bit on her lips. It is stated in Exhibit P2 that when she cried, her mother came there and she told her mother about the acts committed by her father and subsequently her mother took her to the police station. 12. When the victim minor girl was examined before the court as PW2, she narrated the incident more or less in the same way as stated in Exhibit P2 First Information Statement. The evidence of PW2 before the court shows that her mother took her to the police station on the next day of the occurrence and her evidence shows that she was also examined by a lady doctor and subsequently she has given a statement before the Magistrate. PW2 admitted her signature in Exhibit P3 statement recorded by the Magistrate and also identified MOs 1 and 2 as her dress taken to custody by the police. Crl. Appeal No. 923/2020 : 9 : 13. In cross examination, PW2 stated that there is only one room and kitchen apart from a liento for their rented house. PW2 denied the suggestion that twice or thrice her mother absconded from the house and she would say that the relatives of her mother used to visit them occasionally. In another part of cross examination, she stated that when her father assaulted her, her mother came running from the kitchen and that one Radhakrishnan is residing in a quarters near to their house. According to PW2, she told the Police that she bit and pushed her father and thereafter ran out of the house. She would say that she ran towards the side of the kitchen and reached near to her mother. In cross examination, PW2 denied the suggestion that she was told to file a case against her father. 14. PW3, the mother of the victim, deposed that the accused is her husband and while they were residing in a rented quarters at Panickerpady, the accused sexually assaulted her daughter PW2. Her evidence shows that the first incident occurred at about 7- 7.30 p.m. in the night, when she had gone to the neighbouring quarters for borrowing turmeric powder and curry leaf. According to PW3, she saw PW2 crying and running towards her and then the accused threatened to kill them, if they uttered anything, and on the day before the complaint was given to the police, PW2 approached her Crl. Appeal No. 923/2020 : 10 : crying and at that time, there was blood on her lips and then PW2 told her that the accused bit on her lips and also thrusted his penis into her vagina and pressed on her breast. According to PW3, she did not have the courage to ask her husband about the incident and she came to know from PW2 that the accused sexually assaulted her daughter on three occasions and PW2 also informed her neighbour about the incident. 15. The evidence of PW3 shows that on the next day, they went to the Police Station and preferred the complaint and she would say that she was advised to reach the Police Station in the morning and hence, she has not proceeded to the Police Station in the night. In cross examination, PW3 denied the suggestion that she left the home after quarreling with her husband. She also stated that one Satyapalan and his wife are residing in the adjacent quarters and the next quarters is vacant and the quarters adjacent to the vacant quarters is that of Radhakrishnan. According to PW3, the police did not come to the quarters in the night on the date of occurrence. She denied the suggestion that she did not tell the police that her husband sexually assaulted PW2. PW3 categorically denied the suggestion that she used to leave the house without the permission of the husband and that she falsely implicated her husband in this case. Crl. Appeal No. 923/2020 : 11 : 16. PW10 was the ASI of Kalpakanchery Police Station who recorded Exhibit P2 First Information Statement of PW2 at 13 hours on 14.11.2013 in the presence of a Woman Civil Police Officer and thereafter registered Exhibit P9 FIR. In cross examination, PW10 denied the suggestion that PW2 has not given any statement to him and that he falsely created Exhibit P2 for the purpose of the case. PW14, Bushra, was the Woman Civil Police Officer in whose presence PW10 recorded Exhibit P2 First Information Statement of PW2. 17. PW4, Radhakrishnan, deposed that PWs 2 and 3 and the accused are known to him and he was residing two quarters away from the quarters of the accused and on 13.11.2013, at about 9 pm., PW3 came running to his house and requested him to save PW2 and then he went to their room and asked the accused as to why he is harassing the children and then the accused told him not to interfere in their family matters. The evidence of PW3 further shows that on the next day, a complaint was filed in the Police Station and the police came there at about 4 pm and prepared the scene mahazar. PW4 identified his signature in Exhibit P4 scene mahazar. PW4 was not cross examined by the defence and no cross was recorded. Crl. Appeal No. 923/2020 : 12 : 18. PW5 is the owner of the building in which the accused and the victim were residing at the relevant time. The evidence of PW5 shows that they resided there for about 4 years and subsequent to the occurrence, they vacated the building. 19. PW6 is the doctor who examined PW2 on 14.11.2013 at 3.30 pm., in the Government Hospital, Tirur and issued Exhibit P5 certificate. The alleged history in Exhibit P5 is that for the past two months, she was being sexually assaulted by her father Ashraf. The evidence of PW6 and Exhibit P5 shows that the victim had a bite mark lower lip, contusion lower lip and complaints of pain on both breasts. Exhibit P5 further shows that the hymen was found intact and no local injuries on vulva or vagina. In cross examination, PW6 categorically denied the suggestion that bite mark can be selfinflicted and the suggestion that the injury noted is possible, if a person bites overself. 20. The Headmaster of Government U.P. School, Klari is examined as PW9 and the extract of the admission register of PW2 in the said school is marked as Exhibit P8. The evidence of PW9 and Exhibit P8 shows that the date of birth of PW2 is 07.04.2002. The counsel for the accused has not cross examined PW9 and hence, no cross was recorded. Crl. Appeal No. 923/2020 : 13 : 21. The then Village Officer of the Perumanna Village Office, who prepared Exhibit P6 scene plan is examined as PW7 and in cross examination, he deposed that he prepared Exhibit P6 on 08.01.2014. The then Secretary of the Perumanna Klari Grama Panchayat, who issued Exhibit P7 ownership certificate of the building is examined as PW8 and his evidence shows that the building belongs to PW5 Kunhimarakkar Haji. PW1 was the Assistant Surgeon at District Hospital, Tirur, who conducted the potency examination of the accused on 15.11.2013 and issued Exhibit P1 potency certificate. The evidence of PW1 and Exhibit P1 shows that there is nothing to suggest that the accused is incapable of performing sexual act. 22. PW11 was the Sub Inspector of Kalpakanchery Police Station who took charge of the investigation of this case on 14.01.2013. The evidence of PW11 shows that he reached the place of occurrence at about 4 pm on 14.01.2013 and prepared Exhibit P4 scene mahazar and at about 9 p.m. on that day, he arrested the accused from Vylathoor. The arrest memo and inspection memo prepared at the time of arrest is marked as Exhibit P10. Exhibit P11 is a report filed by PW11 for adding Section 376 (2)(f)(i) IPC and Section 5 r/w 6 of the Act, 2012 and Section 23 of the Act, 2000. In cross examination PW11 denied the suggestion that the accused is Crl. Appeal No. 923/2020 : 14 : not arrested from Vylathoor and that the arrest memo, arrest notice and inspection memo are falsely created for the purpose of the case. 23. PW13 was the inspector of Valanchery Police Station, who conducted the investigation of this case from 16.11.2013 onwards. Exhibit P12 is the seizure mahazar prepared by him while seizing the dress worn by the victim at the time of occurrence and he also identified MO1 churidar top and MO2 churidar pant before the court. In cross examination, PW13 admitted that he has not taken any steps to ascertain scientifically as to whether the injury on the lip of the victim was caused as a result of biting by the accused. But, he would say that the doctor, who examined the child has stated about the nature of the injury in the medical report. PW13 denied the suggestion that he forced the victim to give a statement against the accused. PW13 also denied the suggestion that the accused was taken to custody on the very same day when there occurred a quarrel between the accused and his wife and he also denied the suggestion that the mother of the victim has given a signed written complaint in the Police Station on the date of occurrence. The evidence of PW12 Circle Inspector shows that he took charge of the investigation of this case on 27.06.2014 and filed the final report after completing the investigation. Crl. Appeal No. 923/2020 : 15 : 24. When the accused was questioned under Section 313 Cr.P.C., after denying all the incriminating circumstances brought out in the evidence of the prosecution, he also stated that there was problems between him and his wife and that he was the driver of the Panchayat vehicle and he also owned an autorickshaw. It is stated that on 13.11.2013 at about 3.30 a.m., he went for a trip in the autorickshaw; but later returned to take his purse and mobile and after parking the autorickshaw in the main road, he walked to the quarters and then he saw the shadow of a person, and when he touched the door, it is seen that the same was not locked, and when he stepped into the room his leg touched the body of his wife who was fully naked and he beat her and questioned her and then she admitted that it was Radhakrishnan who was with her. According to the accused, he left the place after closing the door and directing his elder son not to open the door till his return. It is stated that after completing the trip and his duty in the Panchayat, he returned to the house in the evening and at that time his wife and children were not there, and on enquiry, his neigbour Minichachy told him that she saw Suhara and Radhakrishnan passing through the side of the pond and since the front door of his house was locked, he proceeded to the shop of Kunjukutty and after purchasing cigarette and while he was sitting in the veranda of Crl. Appeal No. 923/2020 : 16 : nearby petty shop, the police came there and the ASI directed him to enter the vehicle . According to the accused, even though he was arrested on 13[th] , he was produced before the Magistrate only on 15th. 25. It can be seen from the above statement of the accused that he is alleging illicit relationship between his wife and Radhakrishnan who were examined before the trial court as PWs 3 and 4. As noticed earlier, the defence counsel has not cross examined PW4 Radhakrishnan and further while cross examining PW3, the defence counsel has not made any suggestion to indicate that she has any illicit relation with PW4 Radhakrishnan. 26. Apart from making such a statement at the time of 313 examination, the accused has not adduced any evidence in support of the said version and in that circumstance, we find that the said version of the accused is not at all reliable or probable. It is pertinent to note that the accused has a case that he was taken to custody on the night of 13.11.2013. In cross examination, PW3 has categorically denied the suggestion that the police came to the quarters in the night on the date of occurrence. PW11 was the Sub Inspector of Kalpakanchery Police Station, who arrested the accused on 14.11.2013 at 9 p.m., from Vylathoor. Exhibit P10 is the arrest memo and inspection memo prepared by PW11 on Crl. Appeal No. 923/2020 : 17 : 14.11.2013. It is seen that while cross examining PW11, no specific suggestion was made to him that the accused was arrested on the night of 13.11.2013 as claimed by the accused at the time of 313 questioning. Therefore, we find that the case put forward by the defence that the accused was taken to custody on 13.11.2013 even before the registration of FIR is not reliable or probable. 27. The learned counsel for the appellant argued that there is delay in recording the 164 statement of the victim and therefore, there is non compliance of Section 164 (5A) of Cr.P.C. It is argued that Exhibit P2 First Information Statement was recorded on 14.11.2013; whereas, Exhibit P3 statement under Section 164 Cr.P.C was recorded only on 31.03.2014. It is also argued that Exhibit P2 First Information Statement was recorded in violation of Section 24 of the Act, 2012 which provides that the statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a Woman Police Officer not below the rank of Sub Inspector. 28. It is pointed out that in this case, Exhibit P2 First Information Statement is recorded by ASI Mohnanan, when the victim along with her mother reached the Police Station on 14.11.2013. It is pertinent to note that PW2, the victim, or PW3, Crl. Appeal No. 923/2020 : 18 : the mother of the victim, has not raised any complaint in this regard. 29. Section 164(5A) of Cr.P.C was inserted by the Criminal Law (Amendment Act), 2013 dated 02.04.2013, and therefore, considering the date of occurrence and the facts and circumstances of the case, it cannot be held that any prejudice is caused to the accused because of the delay in recording the 164 statement of the victim and the absence of a Woman Police Officer not below the rank of Sub Inspector at the time of recording Exhibit P2 First Information Statement. Further, it is in evidence that PW10, ASI of Police, recorded Exhibit P2 First Information Statement of the victim in the presence of the Woman Civil Police Officer, Bushra, who is examined as PW14 in this case. 30. Section 24 of the Act, 2012 is intended to safeguard the interest of the victim and in the absence of any material to indicate that any prejudice is caused to the accused, the contention of the learned counsel for the appellant in this regard cannot be accepted as a ground to disbelieve the evidence of PWs 2 and 3 regarding the occurrence. 31. The learned counsel for the appellant argued that as per the prosecution case, the alleged occurrence was at about 9 p.m.; Crl. Appeal No. 923/2020 : 19 : but the evidence of PW2 before court is that the occurrence was at 7.30 pm. But a careful reading of the evidence of PWs 2 and 3 would show that when PW2 stated the time as 7.30 pm., she was referring to the first incident in which the accused sexually assaulted her and not regarding the incident that occurred on 13.11.2013. Further PW3 has categorically stated in her evidence that the first occurrence was between 7 and 7.30 pm., and that there are 3 incidents in which the accused sexually assaulted the victim and the last incident was on 13.11.2013. 32. It is well settled that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances, as held by the Hon'ble Supreme Court in _**Rafiq v. State of U.P.**_ [1980 (4) SCC 262]. It cannot be disputed that the evidence of a prosecutrix is more reliable than that of an injured witness and that the testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of the statement and that minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for rejecting an otherwise reliable prosecution case. 33. In this case, the evidence of the victim, PW2, regarding the occurrence is supported by the evidence of her mother, PW3, Crl. Appeal No. 923/2020 : 20 : and neighbour PW4, and we find that the minor discrepancies pointed out by the learned counsel for the appellant are not sufficient to disbelieve the evidence of PWs 2 and 3, especially in view of the fact that PW2 was merely 12 years old at the time of giving Exhibit P2 First Information Statement and further the evidence of PWs 2 and 3 shows that the victim minor girl was sexually abused by her father on three occasions and the evidence of PW4 who is residing in the nearby room also lends credence to the evidence of PWs 2 and 3 regarding the occurrence. 34. We find merit in the argument of the learned Public Prosecutor that since PW2 was aged below 12 years at the time of occurrence, she cannot be expected to recollect and depose with mathematical precision, the exact dates and time on which the abuse took place. It is pertinent to note that even though PWs 2 and 3 were seriously cross examined, nothing material was brought out to discredit their evidence regarding the alleged occurrence. As noticed earlier, even though the accused narrated a story of illicit relationship between PWs 3 and 4, no attempt was made during trial to substantiate the said defence version. 35. The evidence of PW9 and Exhibit P8 extract of the school admission register clearly shows that the date of birth of the victim is 07.04.2002 and the said evidence of PW9 is not challenged in Crl. Appeal No. 923/2020 : 21 : cross examination. Further the decision in **Maju @ Manu v. State of Kerala I.L.R. 2020 (3) Kerala 292,** shows that the date of birth shown in the certificate of the victim from the school can be accepted as conclusive proof of her age in a criminal proceeding. 36. The learned counsel for the appellant advanced an argument that there is delay in registering the FIR. It is pointed out that as per the prosecution case, the victim was sexually assaulted by the accused on three occasions prior to 13.11.2013 and that even though the last alleged occurrence was at about 9 p.m. on 13.11.2013, the First Information Statement of PW2 was recorded by PW10 only on 14.11.2013 at 13 hours and there is no satisfactory explanation for the delay. But it is in evidence that the minor victim girl was aged below 12 years at the time of occurrence, and the accused committed the sexual assault by threatening and beating her and he also threatened that he will kill her, if in case she discloses the incident to anybody else. The evidence of PW3, the mother of the victim, also shows that she was afraid of her husband and considering the fact that the accused committed the acts while the victim was alone in the house, and on 13.11.2013, the victim informed about the overt acts committed against her by her father not only to her mother but also to her neighbour, and subsequently PW4, who is living in the nearby room, Crl. Appeal No. 923/2020 : 22 : came there and questioned the accused and only thereafter, they decided to report the matter to the police, and on a careful analysis of the relationship between the parties and the nature of the offences, we find that the delay is only natural and not fatal in the facts and circumstances. 37. In this case, the evidence of PW2 regarding the occurrence is supported by the evidence of PWs 3 and 4 and further it is also corroborated by the evidence of PW6, doctor, and Exhibit P5 wound certificate. As noticed earlier, in Exhibit P5 wound certificate, the doctor has noted bite marks and contusion on the lower lip of the victim child and the doctor also categorically denied the suggestion that bite marks can be self-inflicted. On the basis of the finding in Exhibit P5 wound certificate that the hymen of the victim was found in tact, the learned counsel for the appellant argued that the prosecution has not adduced sufficient evidence to prove penetrative sexual assault. 38. In _**Chenthamara v. State of Kerala**_ [2008 (4) KLT 290], it was held that penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape and even penile access towards vagina, without there being any entry of penis into the vagina would constitute rape, if penis gets physical contact in that process of access with any of the external portions of Crl. Appeal No. 923/2020 : 23 : the female genital organ, such as, vulva, labia majora etc. 39. In _**Tarkeshwar Sahu v. State of Bihar**_ [(2006) 8 SCC 560], the Hon'ble Supreme Court held that penetration of the male genital organ within the labia majora or the vulva, with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would make out the offence under Section 376 IPC. 40. The evidence of PW2 clearly shows that the accused thrusted his penis into her vagina and he also forced the victim to suck his penis and therefore, in view of the definition of 'rape' under Section 375 IPC and 'penetrative sexual assault' in Section 3 of the Act, 2012, which clearly indicates that even the slightest penetration into vulva or labia majora would constitute rape and penile vaginal entry namely actual passing of penis into the vagina, is not essential to constitute rape, we find that the contention of the appellant in this regard is not legally sustainable. 41. The evidence of PW2, minor victim girl, clearly shows that her father sexually abused her when she was alone in the house and it cannot be imagined that a young girl of her age would cook up such a false story against her father in the absence of any serious grudge or hostility towards him before the occurrence. 42. The evidence tendered by PW2 appeared to us to be Crl. Appeal No. 923/2020 : 24 : natural and consistent with the case of the prosecution. Even though PW2 was seriously cross examined, the core spectrum of the crime remained intact and she has not given any room for any doubt as to the material particulars deposed by her, especially in relation to the sexual assault committed on her by her father. We find that the evidence tendered by PW2 has correlation with each and every other supporting evidence, including the expert opinion given by the doctor who examined her. Therefore, we have no doubt in our minds that PW2 can certainly be regarded as a sterling witness. 43. Therefore, on a careful re-appreciation of the entire evidence, we find that the trial court was right in convicting the accused for the offences punishable under Section 376(2)(f)(i)(n) of IPC and Section 5(l)(m)(n) r/w Section 6 of the Act, 2012 and Section 23 of the Act, 2000. 44. Now the next question to be considered is regarding the quantum of sentence imposed by the trial court on the accused. Considering the facts and circumstances, the nature of the offences and the manner in which the accused herein committed offences against his own minor daughter, we find that the court below has awarded appropriate sentence, especially in view of the fact that sexual violence is a dehumanising act and unlawful intrusion on the Crl. Appeal No. 923/2020 : 25 : right of privacy and sanctity of a female. Therefore, we find that the lower court has considered all the relevant aspects before awarding appropriate sentence and hence, we find no reason to interfere with the sentence imposed on the accused by the trial court. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional District & Sessions Judge-I, Manjeri in S.C. No. 439 of 2014. Interlocutory applications, if any pending, shall stand closed. sd/- **P.B. SURESH KUMAR, JUDGE.** sd/- **JOHNSON JOHN, JUDGE.** Rv