JUDGMENT : 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. 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. 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 years and there is no dispute regarding the age. The birth certificate is Ext. P4. She deposed that during the time of occurrence, she was residing in the house along with her grandmother (PW 1), father (appellant) and brother. She also stated that on the date of occurrence, in the evening, she had gone to the house of CW 5 who is her mother's sister to watch TV. By about 6-6.30 pm, while she was coming back, she met the accused on the way and they proceeded to the house together. At that time, her grand mother (PW1) was not in the house. 9. PW 2 further deposed that on reaching home, accused shut the door and switched off the light. He then, called her to the cot and asked her to remove the underwear. Since she was not willing, she was scolded and was made to lie on the cot. The accused lied on top of her, lifted the skirt and committed rape. By the time, PW 1 came to the house and switched on the light, when he lifted himself from her and lied on the bed. At that time, some white liquid was there on her thigh. 10. PW 2 also deposed that PW 1 scolded appellant and took her to appellant's mother's house. She was also taken to the house of PW 3, who examined her private part, where she had pain. PW 3 stated that her private part was swollen and it was reddish. PW 3 asked PW 2 to be taken to hospital. On the next day, she was taken to the police station and from there, to hospital. 11. PW 1 is the grandmother of PW 2. She deposed that she is residing in colony and that appellant was residing with her. During the relevant time, her daughter CW 3 (mother of PW 2) was at Banglore. On 11/11/2006 at about 6.30 pm, while she was coming back after getting eggs from her relative's house, she found that there was no light in the house. Before leaving the house she had switched on the light, since there was no body in the house. PW2 had gone to her elder daughters house to watch cinema. 12. On 11/11/2006 at about 6.30 pm, while she was coming back after getting eggs from her relative's house, she found that there was no light in the house. Before leaving the house she had switched on the light, since there was no body in the house. PW2 had gone to her elder daughters house to watch cinema. 12. PW 1 also deposed that on reaching home and on finding that lights were switched off, she went to the bed room and opened the door. She switched on the light, when she found that PW 2 and accused were lying on the cot in the bedroom and accused was moving out of PW 2's body to the bed and the skirt of PW 2 was found lifted up. PW 1 also deposed that there was no cloth on the lower portion of the child's body. She made PW 2 to get up. She also suspected that accused had subjected PW 2 to some sexual act. She also found some white matter on the thigh of PW 2. 13. PW 1 deposed that she questioned accused why he had done so. She also asked PW 2 about the incident, while she explained what transpired. She went out for making phone call to CW 3 and on the way she also went to PW 3. At that time accused's mother was along with her. PW 3 examined PW 2 and said that there was reddish colour in the private part. PW 2 also said that there was pain in the private part. It was decided to show her in the hospital. PW 3 gave evidence that she examined PW2's private part and found that there was redness and slight swelling there and advised to go to doctor. 14. The evidence of PW 1 to PW 3 has corroborated each other in all material particulars. They were cross examined at length but their version stand undiscredited. PW 8, the doctor deposed that PW 2 was examined by heron 12/11/2006 at about 5 p.m., and that her vulva congested. (The incident happened on 11/11/2006 at about 7.30 p.m). The evidence of PW 8 shows that though the girl was examined on the next day of the incident, at that time also, her vulva was found congested. According to PW 8, it may be due to local pressure. 15. (The incident happened on 11/11/2006 at about 7.30 p.m). The evidence of PW 8 shows that though the girl was examined on the next day of the incident, at that time also, her vulva was found congested. According to PW 8, it may be due to local pressure. 15. There can be no doubt that the evidence of PW 1 to PW 3 is corroborated by medical evidence also. From the evidence given by PWs 1 and PW 2 coupled with evidence of PW 3 itself, it is clear that accused committed had penile-vulval penetration on PW 2 but, as found by the Trial Court, ejection took place only on the thigh, since by the time, PW 1 came to the room and accused slipped off from PW 2's body and lied on the bed. 16. However, PW 8, the doctor deposed in the cross-examination that there was no signs of penetration. In Ext. P5 also, she said that there is no evidence of recent/past vaginal penetration. It was also argued by the defence counsel that semen or sperm was detected in the vaginal swab and slides, as per the chemical analysis report, Ext. P9. In such circumstances, it is vehemently argued that there cannot be any rape. Even if the-entire prosecution case is admitted, it can only be a case falling under Section 377 I.P.C. or an attempt to rape, it is submitted. 17. I cannot accept the above argument for various reasons. On a reading of the deposition of PW 8, it appears that the doctor is under the impression that "vaginal penetration" is the 'actual penetration" which is essential to constitute "rape". According to PW 8, in cases in which, there is no rupture of hymen, partial penetration is possible in between vulva, but it will not amount to "actual penetration". The doctor's opinion that there was no "actual penetration" is founded on a wrong impression that to constitute rape, there must be vaginal penetration, with rupture of hymen, emission etc. 18. In the opinion of certain medical experts and according to a layman, sexual intercourse or rape requires complete act of penetration into the "vagina", rupture of hymen and also ejection. In common parlance, there may not be any sexual intercourse, without vaginal penetration, rupture of hymen and also ejection. 18. In the opinion of certain medical experts and according to a layman, sexual intercourse or rape requires complete act of penetration into the "vagina", rupture of hymen and also ejection. In common parlance, there may not be any sexual intercourse, without vaginal penetration, rupture of hymen and also ejection. While deciding whether the offence of rape under Section 376 I.P.C. is committed or not, such opinion has no relevance at all Sexual intercourse and rape have a different meaning and connotations, as per law particularly, under Section 375 I.P.C. 19. It is not for a medical expert or a common man to say whether vaginal penetration, rupture of hymen etc., are essential to constitute rape under Section 376 I.P.C. A medical expert may say whether or not, there is any evidence of recent sexual activity, involving the private part or body of the victim. She may also report evidence of injury, if any, on the body of the victim particularly, the private part and express the opinion as to cause of such injury. She may also say whether there is penetration into any portion of the private part. But, a medical expert is not competent to say whether a particular type of penetration is necessary to constitute sexual intercourse or rape, as stated in Section 376 I.P.C. 20. In Modi in Medical Jurisprudence and Toxicology, 21st Edn. at page 369 observed thus: "The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one" Taking all the above facts into consideration, I find that the medical opinion or evidence showing that there was no evidence of "actual penetration" (meaning, "vaginal penetration") is not sufficient to discard the prosecution case, holding that there is no rape. 21. Offence of "rape" is not a medical condition. It is not a diagnosis to be made by a medical expert, who examines the victim. "Rape" is a an offence defined under Section 375 I.P.C. and it is a legal term. It has nothing to do with the ordinary impressions of a layman or a medical expert about sexual intercourse or rape. What type of penetration will constitute sexual intercourse or rape under Section 376 I.P.C. is to be decided by the Court and not by a medical expert. It has nothing to do with the ordinary impressions of a layman or a medical expert about sexual intercourse or rape. What type of penetration will constitute sexual intercourse or rape under Section 376 I.P.C. is to be decided by the Court and not by a medical expert. The Court has to decide whether the act committed by accused constitute rape", as per law, based on the evidence in each case. 22. A close reading of Section 375 I.P.C., particularly, the Explanation makes it clear that to constitute an offence of rape, vaginal penetration is not necessary. Even though in common parlance, it is understood that to have sexual intercourse and rape, there must be penile-vaginal penetration, legally it is not so. Even if the sexual act falls short of complete entry of male organ into vagina (vaginal penetration), rupture of hymen or ejection, to a common man or to a medical expert, it may only be an attempt of rape. But, legally, the position is not so. 23. The Supreme Court in Madan Gopal v. Naval Dubey 1992 KHC 235 : 1992 (3) SCC 204 : 1992 (1) KLT SN 64 : JT 1992 (3) SC 270 1992 SCC (Cri) 598 placed reliance upon Gour's The Penal Law of India', 6th Edn. 1955 (Vol.II), page 1678, it is observed that even vulval penetration is held to be sufficient for a conviction of rape. In a case in which there was no rupture of hymen but there was only penile penetration within the labia majora or vulva with or without emission of semen, the Supreme Court held that such acts constitute evidence of rape. 24. In various other cases also, it was held that even "vulval penetration" is sufficient to convict a person for rape and that the depth of penetration is immaterial (Vide Natha v. Emperor 1925 (26) Cri LJ 1185.), Abdul Majid v. Emperor AIR 1927 Lahore 735 (2)., Mst. Jantan v. Emperor 1934 (36) Punj LR 35., Gharrashyam Misra v. State 1957 CriLJ 469., Das Bernard v. State 1974 CriLJ 1098. In re Anthony AIR 1960 Mad. 308 ., it was held that the slightest penetration will be sufficient and a complete act of sexual intercourse is not at all necessary to constitute the offence of rape. There are decisions of this Court also to the above effect. 25. In re Anthony AIR 1960 Mad. 308 ., it was held that the slightest penetration will be sufficient and a complete act of sexual intercourse is not at all necessary to constitute the offence of rape. There are decisions of this Court also to the above effect. 25. In Aman Kumar v. State of Haryana 2004 KHC 959 : 2004 (4) SCC 379 : AIR 2004 SC 1497 : 2004 SCC (Cri) 1266 : 2004 CriLJ 1399, the Supreme Court held that, "to constitute offence, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration within labia majora or vulva or pudendum with or without emission of semen is sufficient to constitute offence of rape as defined in law". In State of U.P. v. Babulnath 1994 KHC 1052 : 1994 (6) SCC 29 : 1994 SCC (Cri) 1585, the Supreme Court held thus: "Even partial or slightest penetration of the male organ within labia majora with or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376 of I.P.C. That being so, it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains." 26. The Supreme Court (Babulnath's case) has made it very clear that partial or slightest penetration of the male organ within labia majora with or the vulva or pudenda without any emission of semen, is also "rape", as per-Section 376 I.P.C. In a layman's view, the above acts may only be an attempt to rape, since there is no vaginal penetration in such cases But, according to Supreme Court, such an attempt of penetration into the private part is sufficient to constitute "rape", under Section 376 I.P.C., if on such attempt there is slightest penetration into labia majora (Labia Majora is the hairy exterior part of the female genital organ) vulva etc. Thus, vaginal penetration is not a must for rape under Section 376 I.P.C., but if there is an attempt to vaginal penetration whereby, there is penetration into other external portions of the female private part, offence of rape will be made out. 27. Thus, vaginal penetration is not a must for rape under Section 376 I.P.C., but if there is an attempt to vaginal penetration whereby, there is penetration into other external portions of the female private part, offence of rape will be made out. 27. In Chenthamara v. State of Kerala 2008 (4) KHC 313 : 2008 (4) KLT 290 : 2008 (2) KLD 695 : 2008 (3) KLJ 375 : ILR 2008 (4) Ker 363., I have considered this aspect in some other angle. The scope of the definition of offence of rape and the expression "penetration" referred to in Explanation to Section 375 I.P.C. were probed into. In my considered opinion, to attract offence of rape under Section 376 of I.P.C., it is not necessary to have vaginal penetration, but it is enough if there is vaginal accessing by male organ. In the course of accessing of vagina by the male organ, if it comes into contact with any of the external portions of female genital organ such as, vulva or pudendum, labia majora etc., without there being an actual entry of male organ into vagina, such penile accessing of vagina will constitute "rape". 28. In cases involving only penile accessing of vagina, and thereby male organ come into contact with other external portions of female private part, such as vulva, labia maiora etc., such an act of penile - accessing of vagina may amount to an attempt of penetration into vagina. But such act will also constitute "rape" under Section 375 I.P.C. and it is not a mere attempt to rape to put it short, vaginal penetration is not necessary to constitute offence under Section 376 I.P.C. 29. Though ordinarily, to common man, "penile-vaginal entry" is essential to constitute sexual intercourse, "penile-accessing" of vagina, by penetrating into the other external portions of female private part like vulva etc. is sufficient as per law to attract offence of "rape", by virtue of the Explanation to Section 375 I.P.C. This is exactly the reason why, the Supreme Court repeatedly held that even slightest penetration into vulva or labia majora constitutes "rape", even though in such a case there is no vaginal penetration. 30. The gender sensitised Indian Judiciary including the Supreme Court has given a practical and pragmatic meaning to the offence of "rape" under Section 375 I.P.C.. 30. The gender sensitised Indian Judiciary including the Supreme Court has given a practical and pragmatic meaning to the offence of "rape" under Section 375 I.P.C.. Penetration of male organ into the external portions of female private part such as labia majora or vulva is also sufficient to constitute rape. The offence of rape shall not be measured in inches or millimetre of penile penetration into the vagina. If a man intrudes into the privacy of the body of a female, particularly the private part, the Court need not look into whether the male organ entered vagina by millimetre or inch, to decide whether there is "rape" or not, as per law. It is enough if the male organ penetrates into or accesses external portions of the female private part other than vagina. This is the message given in various decisions of the Supreme Court and this Court. Therefore, any attempt made by the Courts to dilute the above well settled legal position will result in gross gender injustice. 31. The relevant portion from Chenthamara, is extracted as follows: "16. by virtue of the Explanation to Section 375 I.P.C., an actual passing of penis through vagina ("penile-vaginal entry") is not quite essential to constitute offence of "rape", "Penile-accessing" into/towards vagina is sufficient (i.e., penis finding access into/towards vagina, without there being any entry of penis through vagina, and during such process, penis getting contact with any of the external portions of the female genital organ) to constitute "rape", as laid down in the Explanation to Section 375 I.P.C. The expression "penetration", which is referred to in the Explanation to Section 375 I.P.C., according to me, is such "penile-accessing" which I have explained above. 17. Thus, "penetration" referred to in Section 375 I.P.C. is something lesser in extent, nature and degree than what is ordinarily understood by the word "penetration", in common parlance, in the context of sexual intercourse. By virtue of the Explanation to Section 375 I.P.C., in legal parlance for the sexual intercourse which is necessary for the offence of "rape", penile-vaginal entry is not a must, but even in the absence of such entry or rupture of hymen, offence of "rape" can be committed." 32. By virtue of the Explanation to Section 375 I.P.C., in legal parlance for the sexual intercourse which is necessary for the offence of "rape", penile-vaginal entry is not a must, but even in the absence of such entry or rupture of hymen, offence of "rape" can be committed." 32. So, in cases in which, there is only penile accessing of vagina and thereby, only penetration of male organ into vulva or labia majora, without there being even any partial slight or complete entry into the "vagina", such an act will squarely come under Section 375 I.P.C. and it is not merely an attempt to rape. In this case, there is ample evidence to show that there was penile accessing of vagina by the male organ by force and in that process, it had come into contact with vulva, causing congestion and redness thereon, by local pressure. Even though there was no "actual vaginal penetration or even partial penetration into vagina, rupture ' of hymen or ejection into vagina, offence committed by appellant is clearly "rape" under ' Section 376 I.P.C. and not merely an attempt to rape, as argued. It is not an offence under Section 377 I.P.C. also. 33. Now, coming to absence of semen or sperm in vaginal swab and slides I find that prosecution itself has no case there was emission of semen into vagina. As per evidence of PW 2, the child victim, she noticed some white liquid on her thigh, after the incident. PW1 also stated that she found white matter on PW 2's thigh or reaching the scene. PW 2 has no case that any emission took place within the vagina. In fact, there was no chances for such emission also. 34. As learned Additional Sessions Judge rightly observed, evidence also reveals that before there could be emission of semen into vagina, grand mother came to the scene and semen fell on the thigh, while the accused withdrew from the act. Therefore, in the absence of any evidence to show that during the act of rape there was ejection into the vagina, the absence of sperm or semen in the vaginal swab and slides is of no consequence at all. At any rate, such absence is not at all sufficient at all to disbelieve evidence of the child, PW 2 or: PW 1. At any rate, such absence is not at all sufficient at all to disbelieve evidence of the child, PW 2 or: PW 1. It is also to be noted that vaginal swab and slides were collected only on the next day of the accident, that too, after about 23 hours of the incident. 35. Taking all these facts into consideration, hold that the act committed by the accused amounts to offence under Section 376(2)(f) of I.P.C. and not merely an attempt to rape or unnatural offence, under Section 377 I.P.C. The conviction is therefore, only sustainable. The appellant, however, requests for reducing the sentence. The sentence imposed on appellant is to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 25,000/- and in default to undergo one year imprisonment. 36. The offence under Section 376(2)(f) of I.P.C. is rape on a child under 12 years of age. The proviso to Section 376(2) of I.P.C. permits imposing sentence lesser than 10 years, for adequate and special reasons to be mentioned in the judgment. However, the offence under Section 376(2) of I.P.C. is punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine. Thus, sentence for even life imprisonment can be imposed in cases falling under Section 376(2)(f) I.P.C. So, to decide as to what will be adequate or appropriate sentence in case falling under Section; 376(2)(f) IPC, the Court has to look into the evidence and various facts and circumstances in each case. 37. The appellant committed rape on his own daughter, when her mother was away from home, in connection with her employment. The child was aged only 10 years at the time of offence. The offence committed by accused, no doubt, is too heinous. No cultured society will pardon the offender, for what he has done to the child who looks forward to him for protection and security. Incestual rape (especially parental incest), is one of the most extreme forms of childhood trauma, which leads to a long-term psychological damage to the victim and as the psychological study reveals such injury caused to the victim is too severe. 38. The risk of long lasting psychological harm on the child is higher, when the perpetrator of the sexual assault is her own father. 38. The risk of long lasting psychological harm on the child is higher, when the perpetrator of the sexual assault is her own father. A feeling of insecurity, broken trust, shame, isolation in society and many other untold misery haunt the child, till she breathes her last. A child victim of any crime depends upon the parents for support, protection and security. But, in a case in which father himself sexually assaults his own daughter, he mercilessly denies to his own child the protection and support which he is bound to give as a father. Hence, what a father, as an offender in a case of rape on his own child commits cannot be reckoned merely as an offence of rape; he completely devastates his own child. 39. But, there is no adequate provision in Indian law for giving support at least by psychological counselling to such handicapped victims of rape either at the cost of the offender or the State. In such circumstances, at least as a deterrence, adequate punishment has to be imposed to such heartless offender, who commits sexual assault on his own child who is dependent on him. Hence, in cases in which offence under Section 376(2)(f) of I.P.C. is involved, the Court has to keep all these facts in mind, while deciding the question of sentence Unless there are adequate or special reasons to reduce sentence, the Court shall not reduce sentence to any period lesser than 10 years in cases, falling under Section 376(2)(f) of I.P.C. 40. In this case, appellant has not pointed out any adequate or special reasons as to why he deserves a reduction in sentence. Hence, ten years imprisonment and fine of Rs. 25000/- and 6 -fault sentence of one year imprisonment is in no way, any excess. To a father like appellant who has left his own child in an irreparable broken state of mind and body at the age of 10 years, no reduction of sentence is warranted. The conviction and sentence passed against the appellant therefore, are only sustainable and there is no ground to interfere with the same. This appeal is dismissed.