JUDGMENT

Arvind Singh Chandel, J. - The instant appeal has been preferred against the judgment dated 9.3.2018 passed by the Additional Sessions Judge (FTC), Durg in Sessions Trial No.42 of 2014, whereby the Appellant has been convicted and sentenced as under:

Conviction	Sentence
Under Section 450 of the Indian Penal Code	Rigorous Imprisonment for 5 years and fine of Rs.500/- with default stipulation
Under Section 6 of the Protection of Children from Sexual Offences Act (henceforth the Pocso Act)	Rigorous Imprisonment for 10 years and fine of Rs.1,000/- with default stipulation

2. Prosecution case, in brief, is that on the relevant date, the prosecutrix was an about 12 years old mentally retarded girl. On 21.11.2013 at about 10:00 a.m., she was at her house along with her 5-6 years old younger sister Lokeshwari (PW6). The Appellant entered the house and asked Lokeshwari (PW6) for bringing water and thereafter he entered inside the room of the prosecutrix. He undressed the prosecutrix and committed rape with her. The incident was witnessed by Lokeshwari (PW6) from a hole of the door of that room. The incident was explained by the prosecutrix to Lokeshwari (PW6) by expressing hints. Lokeshwari (PW6) informed about the incident to her grandmother Tuman Bai (PW9). Tuman Bai (PW9) narrated the incident to other family members. On 25.11.2013, First Information Report (Ex.P12) was lodged by Khileshwar (PW7), father of the prosecutrix. Since the prosecutrix was a mentally retarded girl, S. Asha (PW1), a teacher of Mand Buddhi Vidyalaya, Sneh Sampada, Durg recorded her statement (Ex.P2) by understanding her hints. The prosecutrix was medically examined by Dr. Smita Choudhary (PW4). Her report is Ex.P9. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed against the Appellant. Charges were framed against him.

3. In support of its case, the prosecution examined as many as 10 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. In his defence, he examined 2 witnesses.

4. On completion of the trial, vide the impugned judgment, the Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that without there being any clinching evidence on record against the Appellant, the Trial Court has wrongly convicted him. It was further submitted that the prosecutrix has not been examined before the Trial Court nor has her statement been recorded by the police under Section 161 of the Code of Criminal Procedure. There is no documentary evidence available on record on the basis of which it could be said that the prosecutrix was a mentally retarded girl. Therefore, non-examination of the prosecutrix before the Court is fatal to the case of the prosecution. It was further submitted that though teacher S. Asha (PW1) recorded the statement (Ex.P2) of the prosecutrix, the prosecutrix never went to the school of the said teacher for studying and the said teacher had never met with the prosecutrix earlier and there is no detail given by the teacher on record that what hints of the prosecutrix were understood by her and how. From perusal of the statement (Ex.P2) of the prosecutrix, it reveals that this statement was recorded as was told by the younger sister of the prosecutrix. Thus, from the statement (Ex.P2) also, the prosecution does not get any help and, therefore, this statement is not reliable. According to the prosecution, the sole eyewitness is Lokeshwari (PW6), younger sister of the prosecutrix. On the relevant date, Lokeshwari (PW6) was aged about 5 years. Her statement was recorded before the Court on 6.1.2016. In her cross-examination, she has categorically admitted that the Appellant