Point of Law : Hon'ble Supreme Court held that action of the accused in stripping prosecutrixes and himself and rubbing his genitals against those of the victims was indeed an endeavour to commit sexual intercourse.

JUDGMENT :

Jayachandran, J.

“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 sole of the helpless female. [State of Punjab v. Gurmit Singh and Others (1996(2) SCC 284)]

1. Rape is most foul when it is alleged to have been committed by a father on his minor daughter. Unfortunate are the facts involved in the instant appeal, where the allegation is one of rape by the accused/father on his minor daughter on several occasions in the month of December 2012, thus committing the offence under S.376 of the Penal Code, as also, under Ss.5, r/w 6 and 9, r/w 10 of Protection of Children from Sexual Offences Act, 2012.

2. Parading 15 witnesses, the prosecution adduced evidence and got marked Exts.P1 to P12. Except marking Exts.D1 and D2 contradictions, no evidence, whatsoever, was adduced on behalf of the defence. The Sessions Court found that the evidence tendered by PW1, the victim, to be genuine and credible and convicted the accused for all the offences charged, which judgment is under challenge in the instant appeal.

3. Heard Adv.C.K.Jayakumar, learned State Brief appointed for and on behalf of the appellant and Smt.Ambika Devi, learned Special Government Pleader for Atrocities Against Women and Children. Perused the records.

4. Learned counsel for the appellant argued that the prosecution has no specific date as regards the commission of the alleged offence. The time alleged is so vague, as sometime during Christmas vacation 2012. That it was during Christmas vacation is not specified in Ext.P1 F.I.S, where the victim only refers to the time when she had holidays in the school. Learned counsel would contend that the conduct of PW1/victim in having not revealed the matter to her own mother is quite strange and unbelievable. According to the prosecution, the first incident of rape took place when the accused, victim and her brother were sleeping together in an afternoon. Curiously enough, the brother was not examined at all. There was inordinate delay in preferring the F.I.S and registering the F.I.R. The incident allegedly took place when the victim was studying in the 6th standard, whereas the F.I.R was registered only when she was studying in the 7th standard. Even after the matter was allegedly revealed first to PW5/nurse, there is considerable delay in registering the F.I.R, which is not explained at all. Ext.D1 contradiction elicited from PW2 and Ext.D2 contradiction elicited from PW6 would render their respective version suspect. Learned counsel would conclude that the alleged victim is not of a sterling quality, so as to place sole reliance upon her testimony and no corroboration, whatsoever, is forthcoming, so as to convict the accused. There is serious contradiction between the version spoken of by PW14, a member of the child line team and the version spoken to by PW5 nurse and PW4 class teacher. Learned counsel would allege that the victim's mother had an eye fixed on evicting the appellant from the home-for the reason that he caters to the needs of his first wife and the children born in that wedlock-for which purpose, PW1/victim was made a tool. Finally, learned counsel pointed out that, there was no penetration, whatsoever, even going by the evidence adduced by PW1/victim, wherefore, the punishment under Ss.5, r/w 6 of POCSO Act is ex facie not sustainable.

5. Refuting the above allegations, learned Special Government Pleader submitted that the evidence tendered by PW1/victim is quite convincing, requiring no corroboration. The allegation is made against none other than the father of the victim and unless and until there is a ring of truth, it is most unlikely that a daughter would choose to speak against her father. PW1/victim was amply supported by the evidence tendered by PW5/nurse (to whom the incident was first revealed by the victim), PW4/class teacher, PW9/doctor (who examined the victim)