Point of Law: Once a person is convicted for offence of rape, he should be treated with heavy hands and undeserved indulgence or liberal attitude in not awarding adequate sentence would encourage potential criminals.

JUDGMENT :

Jayachandran, J.

All crimes evince depravity, the most contemptible being the father committing rape on daughter - the protectee perishing in the jaws of the protector himself. “Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.” [State of Punjab v. Gurmit Singh - (1996) 2 SCC 384].

2. We, in this appeal, are concerned with the allegation of a stepfather committing rape on stepdaughter.

3. The accused in SC No.14/2014 of the Additional Sessions Court No.1 (Special Court for trial of offences against Children), Thiruvananthapuram is the appellant herein. He faced indictment for offence under Section 376 of the Indian Penal Code. Vide the impugned judgment dated 11.3.2016, he was found guilty and sentenced to undergo life imprisonment along with a fine of Rs.2 lakhs, with a default clause to undergo rigorous imprisonment for two more years.

4. The prosecution case is as follows:

The victim girl/PW3 was residing along with her step father (accused), mother and her sister. The accused used to behave indecently and caressed her breasts, while she was 14 years old, studying in 9th standard. One day, the accused compelled the victim to accompany him to a nearby forest like area to collect reeds for thatching their house and raped her. On 4.6.2012, the incident was repeated at the same place, when the victim was returning along with the accused, after collecting T.C from the Mithranikethan School. Besides, the accused used to lick the vagina of the victim girl, thus committing the offence under Section 376 of the Penal Code.

5. The prosecution paraded 12 witnesses, who were examined as PWs 1 to 12, through whom Exts.P1 to P13 were marked. Five material objects were marked as MO1 to MO5. To convict the accused, the learned Sessions Judge essentially relied upon the evidence tendered by the victim girl (PW3), supported by the medical evidence adduced through PW2/doctor, further corroborated by the evidence tendered by PW5 and PW7, through whom the crime got exposed.

6. Heard Sri. Ranju Mohan, learned counsel for the appellant and Smt. S. Ambika Devi, learned Special Government Pleader for atrocities against Women & Children for the respondent State.

7. Learned counsel for the appellant/ accused first contended that the age of the victim is not proved in accordance with law. Ext.P5 admission register cannot be reckoned in proof of the date of birth of the victim, going by the dictum laid down by the Division Bench of this Court in Rajan v. State of Kerala [2021 (4) KLT 274] and Alex v. State of Kerala [2021 (4) KLT 480]. Once the age is not established, the approach to adjudge the guilt should be on a substantially different dimension, where the question of consent looms large, contends the learned Counsel. As could be seen from Ext.P2 medical certificate, there is no injury on the body of the victim. Therefore, the physical relationship, if any, can only be consensual. Learned counsel then contended that the victim's version as regards molestation is highly doubtful. As per her narration in Ext.P3 FIS, she was molested thrice, whereas it was on four occasions as per the history shown in Ext.P2 medical certificate. Again, the victim’s version that she was molested twice in an open forest like area in broad daylight can hardly be believed. The version that she was molested at the house, where her own mother and sister are residing, is equally unbelievable. PW9, the neighbour, in whose house the victim would take asylum to rescue herself from the advances made by the accused, turned hostile to prosecution. The evidence tendered by the victim is not of a sterling quality, so as to rest a conviction on the basis of her sole testimony. There is no corroborative evidence forthcoming, in absentia, the conviction of the accused cannot be sustained. As a matter of fact, the accused and