1. Aggrieved by the conviction and sentence imposed upon the accused in S.C. No.562 of 2012 on the files of the Additional Sessions Court (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam, the accused has preferred this appeal, challenging the said conviction.

2. The appellant was the accused in Crime No.495 of 2010 of Varapuzha Police Station, which was tried as S.C. No.562 of 2012 before the Additional Sessions Court, Ernakulam. He has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- for the offence under section 376(1) IPC, rigorous imprisonment for 5 years and to pay a fine of Rs.20,000/- for the offence under section 366 IPC, apart from rigorous imprisonment for 1 year for the offence under section 506(ii) IPC. Compensation to the victim under the victim compensation scheme was also directed to be paid by the trial court.

3. The prosecution alleged that the accused with an intention to kidnap and rape a minor girl, had, on 05.09.2010 at 3 pm, kidnapped the victim, while she was on her way home after buying lemon from a shop, and raped her after dragging her to a nearby fallow land and thereby committed the offences alleged.

4. The prosecution, in a bid to prove its case, examined PW1 to PW15 and marked Ext.P1 to Ext.P17 apart from MO1 to MO10, while the defence marked Ext.D1 and Ext.D1(a). After examining the prosecution evidence, the trial court concluded that the accused after kidnapping the 13 year old victim on 05.09.2010, raped her and thereby committed the offences alleged.

5. The learned counsel for the appellant contended that the prosecution had failed to prove its case beyond reasonable doubt and that the material evidence did not justify the allegation of rape as there was no rupture of the hymen or any injuries on the private parts of the victim. It was also submitted that the investigating officer had filed a report to alter the charge framed from section 376 IPC to section 511 of 376 IPC and thereafter the final report was filed only for those offences and the trial court failed to take into consideration the said report, while finding the accused guilty for the offence punishable under section 376 IPC. Learned counsel further submitted that the trial court also failed to consider that the place of incident was in a locality where there were numerous persons and none of them were examined, which itself indicates the falsity of the prosecution case. It was finally submitted that kidnapping the victim for the purpose of sexual intercourse had not been proved by the prosecution as required by law and therefore the accused could not have been convicted for the said offence as well.

6. The learned Public Prosecutor on the other hand submitted that the prosecution had proved beyond reasonable doubt the offence committed by the accused and therefore the same does not warrant any interference. It was further submitted that the medical evidence proved that there was actual commission of rape, which cannot be regarded as only an attempt to commit rape and hence, the impugned judgment does not warrant any interference. The learned Prosecutor also pointed out that despite the final report only alleging section 511 of section 376 IPC, the trial court had framed the charge under section 376 IPC and hence the contention of the accused is not legally tenable.

7. I have considered the rival submissions and have also perused the trial court records.

8. At the outset itself, it is appropriate to deal with the contention regarding the charge under section 376 framed by the trial court instead of section 511 of section 376 IPC charged in the final report. It is significant to note that the Code has not restricted the power of the court to frame charges for any offence if such offence is made out from the records gathered during investigation or during the course of trial. Section 228 of the Cr.P.C deals with framing of charge before a Sessions Court. The words used in S.228 is if the Judge is of the opinion that there is ground for presuming that the “accused has committed an offence" and not "the accused has committed an offence mentioned in the final report". The words used in the provision conveys the scope of the power of court to frame charges. This Court had, in the decision in Johnkutty M.V. v. State of Kerala [2024 (2) KHC 397] considered a similar issue on hand and held as follows:

                  “13. Nowhere in the Code is there any provision that restricts the power of the Court to frame charges for any offence, provided that the offence is made out from the records gathered by the prosecution. The terminology used in S.228 and S.240 CrPC is "if the court is of the opinion that there is ground for presuming that the accused has committed an offence" and not "the accused has committed an offence mentioned in the final report". This distinction is significant and reflects the unfettered power of the court to frame charges for any of the offence made out from the records. Such power can be utilized to frame charges not only for those offences mentioned in the final report but also for offences not referred to in the final report. The conferment of such power is essential for the administration of criminal justice, as otherwise, the investigating officer will be the sole repository of the power to determine what offences must be charged against an accused.

                  14. In this context, reference to S.216 CrPC which enables a court to alter or add to any charge at any time before judgment is pronounced, is also relevant. The power to add or alter a charge is also a comprehensive power. An improper or erroneous charge can also be corrected under S.216 CrPC by reframing it properly.

                  15. In the decision in Anand Prakash Sinha @ Anand Sinha v. State of Haryana, 2016 (6) SCC 105, it was observed that if the Court has not framed a charge despite the material on record, it has the jurisdiction to add a charge or even to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. The Court went on to hold that under S.216 CrPC the charges already framed can be altered even before evidence has been let in.

                  16. Further in the decision in Central Bureau of Investigation v. Karimullah Osan Khan, 2014 (11) SCC 538 it was observed that S.216 CrPC gives considerable power to the trial court, that is, even after the completion of evidence, arguments heard and the judgment reserved, it can alter and add to any charge, subject to the conditions mentioned therein. It was further held that the expressions' 'at anytime' and 'before the judgment is pronounced' would indicate that the power is very wide and can be exercised in appropriate cases, in the interest of justice, but at the same time, the court should also see that its orders would not cause any prejudice to the accused.

                  17. It is also relevant to refer to the judgment in P. Kartikalakshmi v. Sri. Ganesh and Another, 2017 (3) SCC 347 wherein this question came up for consideration, and the court held that the power under S.216 is vested exclusively on the court and it is an enabling provision to exercise power under contingencies which comes to its knowledge.

                  18. Thus, it is evident that the power of the court to alter or add any charge is unlimited and unrestrained, which can be done at any time before the judgment is pronounced. When there are materials available before the court to frame a charge or add or alter the charge for different offences other than those for which cognizance was taken, the court is not only entitled but is bound to do so.”

9. In view of the above, framing of charge under section 376 IPC by the trial court, notwithstanding the final report containing only a charge under section 511 of 376 IPC, cannot be said to be without authority.

10. PW1 is the victim. She was alleged to be aged only 12 years as on the date of incident, with her date of birth stated to be 10.07.1998. According to the victim, on 05.09.2010, while she was returning home after buying lemons from a nearby shop, the accused grabbed her left hand and forcibly took her to a vacant field nearby. The accused thereafter, disrobed the victim and laid himself on top of her. The victim also deposed that when the accused pressed his genitals onto hers, she bit his hands and started shouting, when he gagged her mouth and threatened to kill her. The deposition of PW1 further reveals that after the accused went away, she put on her dress and went home and complained to her maternal aunt who in turn informed her mother. The victim's mother along with her sister, took the victim to the Taluk Hospital where she was admitted and examined by a Doctor while an Uncle went to inform the police.

11. PW2, a local resident, deposed that on 05.09.2010, while she was taking water from a public tap near the road side, she saw PW1 crying and on enquiry with her, she communicated that the accused had abused her. PW3 is the owner of the shop from where the victim had purchased lemons and according to him, at around 3.30 pm on 05.09.2010, the victim had come to her shop to buy lemons. PW4 is the Headmaster of the school where the victim was studying, through whom, Ext.P2 certificate was marked in order to prove the date of birth of the victim. He deposed that the date of birth certificate Ext.P2, was issued based on the entries in the admission register. PW7, the Aunt of the victim, deposed that, on 05.09.2010 her brother was getting married and that she had sent the victim to buy lemons. PW8 is the mother of the victim who identified the accused and deposed that on 05.09.2010 her brother was getting married and when the victim returned back after purchasing lemons, she was crying aloud and when enquired with her, it was informed that the accused took her to a vacant field and raped her. PW15 is the Doctor who had examined the victim. According to her, on 05.09.2010, itself at around 6.55 pm, she examined the victim in the crime who was brought by a woman Police Constable with a request from the Circle Inspector of Police of North Paravur Police station, soaked with mud and was complaining of pain while walking. The Doctor also deposed that, on examination, though no general injuries were noted, she found a one centimetre congested area on the genitals of the victim at the inner side of labia majora. She also gave evidence that though the hymen of the victim was intact there was an injury on the labia majora and that she had issued Ext.P17 certificate.

12. The evidence adduced by the victim is unambiguous that, while she was returning home after purchasing lemons, the accused grabbed her and forcibly took her to a nearby field and raped her. The medical evidence revealed that there were injuries on the labia majora. The evidence of PW15 and her report Ext.P17 as noted above, revealed that there was a one centimeter congestion on the labia majora. Though the defence had raised a contention that the said congestion could have been caused due to itching or scratching, considering the nature of evidence adduced by the prosecution especially through the victim, her mother and that of the Doctor, this Court is of the view that the injury on the labia majora of the victim was caused by the act of the accused while raping the victim.

13. The above conclusion is fortified by the fact that the incident allegedly occurred at around 3.30 pm on 05.09.2010 and the victim on reaching her house, immediately complained to her maternal aunt and her mother, who took her to the hospital and she was subjected to medical examination on the same day at around 6.30 pm. The FIR was registered at 5.45 pm on 05.09.2010 itself. There is thus no delay either in the registration of the FIR or in the examination of the victim. Though the hymen of the victim was intact, it is not necessary that in cases where rape is alleged, the medical evidence must prove that the hymen was torn. The law does not require penetration to a particular extent into the vagina to conclude commission of rape. Penetration cannot be measured in millilitres or centimetres and penetration even to the minutest extent will satisfy the requirement of rape under law.

14. Penile entry into the vagina in its entirety, is not essential to constitute rape. An access to the vagina, without there being any entry of the penis fully into the vagina would also amount to rape, if the penis penetrates into any of the external part of the female genital organ, such as vulva or labia majora. In Tarkeshwar Sahu v. State of Bihar [(2006) 8 SCC 560], wherein also, it was explained that penetration of the male genital organ into 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 S.376 IPC. Reference to the decisions in Kunjumon v. State of Kerala [2011 (4) KHC 72] wherein it was observed that for constituting penetration even a vaginal access by a male organ is enough and even a slightest penetration into vulva or labia majora would constitute "rape", although there would be no vaginal penetration in such cases. Reference to the decisions in Raveendran V.S v. Deputy Superintendent of Police [2025 KER 14285], Chenthamara v. State of Kerala [2008 (4) KLT 290] is also appropriate in this context.

15. The amendment of 2013 bringing an explanation that penetration into the labia majora will constitute penetration of the vagina is only explaining what had already been laid down by the Supreme Court and other High Courts. Therefore, though the incident in the present case occurred prior to the amendment of 2013, still the offence of rape is attracted when penetration into the labia majora is proved. Similarly, the absence of injuries by itself cannot be a reason to doubt the prosecution case and the main determiner in an offence of rape is the evidence of the victim. In the instant case, PW15 has noticed a congestion on the labia majora, which is an injury indicative of rape itself.

16. In this context, it needs to be mentioned that the prosecution witnesses have stated that they went to the hospital straight from the house, while the doctor deposed that a woman police constable had accompanied the victim to the hospital. As noted earlier, the FIR was registered at 5.45 pm while the doctor examined the victim at 6.30 pm. There is a minor inconsistency regarding whether the victim first went to the police station or the hospital. However, the said inconsistency being insignificant, especially since the time of incident and the registration of FIR and the examination by the doctor, all happened within a matter of two and half hours, the same cannot create any doubt on the prosecution case.

17. On an appreciation of the evidence of the victim, there is no reason to doubt the veracity of her deposition. When the evidence of the prosecutrix inspires confidence of the court, no corroboration is necessary to enter a finding of guilt of the accused. In the decision in Bhimapa Chandappa Hosamani and Others v. State of Karnataka [(2006) 11 SCC 323], it has been held that on the basis of the testimony of a single eye witness a conviction may be recorded, if the Court is satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.

18. Thus, it needs no restatement that the evidence of the victim of rape must be given the same value as that of an injured witness and it is legally tenable to base a conviction on the solitary testimony of the prosecutrix. In the decision in State of Punjab v. Gurmit Singh and Others, [(1996) 2 SCC 384], the Supreme Court observed that:

                  "    If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

19. As regards the question of the age of the victim, the incident occurred prior to the coming into force of the POCSO Act, that too at a time when the age of consent was 16. However, the evidence adduced by the prosecution in the form of Ext. P2, unambiguously proves that the victim was born on 10.07.1998. No serious challenge was raised by the appellant against the date of birth as proved through PW4. Thus it is clear that the victim was less than 16 years of age as on 05.09.2010.

20. In view of the above, this Court finds no perversity in the conclusions arrived at by the trial court. The conviction and sentence imposed on the accused by the impugned judgment in S.C. No.562 of 2012 on the files of the Additional Sessions Court (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children), Ernakulam does not warrant any interference. Compensation directed to be paid under the victim compensation scheme is also sustained.

                  The appeal therefore lacks merit and is hence dismissed.