K. Hema, J.

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. On reaching home, by about 6.30 p.m., appellant asked PW 2 to remove her underwear and when she refused, he made her lie on the bed in the bedroom, switched off the light, removed her undergarments and committed rape on her despite the resistance. In the meantime, PW 1 returned to the house and found that the lights were switched off. She had switched on the lights before she left the house for getting eggs. She went to the bed room and switched on the light when she found appellant and PW 2 lying on the cot and appellant sliding away from the body of PW 2. Immediately, PW 1 lifted PW 2 from the bed and appellant was questioned.

4. PW 1 informed the victim's mother and appellant's mother also about the incident. PW 2 was taken to the house of PW 3, a neighbour. PW 3 examined private part of PW 2 and found some redness etc., in her private part and asked the girl to be taken to the doctor. Since it was late on that day, complaint was lodged only on the next day, on 13/11/2006. A case was registered and thereafter, PW 2 was taken to the doctor for medical examination. After investigation, a charge was laid against appellant.

5. Prosecution examined PW 1 to PW 12 and marked Ext. P1 to P9 and MO1 to MO 5. 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 Kerala 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 I.P.C., since no semen was detected etc., was rejected.

6. This appeal was filed from jail and appellant was undefended. Hence, Smt. S.L. Sylaja was appointed as State Brief. Heard both sides. Perused the records. Learned counsel for appellant argued that medical evidence and medical certificate, Ext. P5 show that there was no signs of recent penetration. It is also argued that as per Ext. P9, no sperm and semen was detected in vaginal smear and swab and hence, if at all the entire case of prosecution is admitted accused can be convicted only for offence under Section 377 I.P.C. or for an attempt to rape and not for rape.

7. Learned public prosecutor argued that evidence of PW 1 and PW 2 is not discredited and it is more than sufficient to hold that there was actual rape on the victim by the accused. As per the medical evidence, there was congestion of the vulva and hence, offence committed by accused squarely falls under Section 376 I.P.C. and not under Section 377 I.P.C. It cannot also be said to be a mere attempt to rape, it is argued.

8. On going through evidence of PW 2, the alleged victim I find that she has supported the prosecution in full. She is a child aged only 10