The main legal point established is that the consent of a mentally retarded victim for sexual intercourse cannot be considered free consent under Section 376 of the Indian Penal Code.

K C Sood J.: Appellant Khoja Ram (Accused for short), was tried and convicted for an offence punishable under Section 376 of the Indian Penal Code by the Presiding Officer, Fast Track Court Kangra at Dharamshala. He was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of rupees 10,000/-. In case of default in the payment of fine, the accused is to under go further simple imprisonment for six months, by his judgment dated February 18, 2005.

2. Dis-satisfied the accused is in this appeal. Prosecution case

3. Anita Devi, hereinafter referred to as the "victim," was twenty years of age at the relevant time. On May 11, 2002 her sister-in law Usha Devi (PW4) along with her husband had gone to attend the marriage. When she returned back from the wedding at about 6.30. P.M., she gave a packet of sweets to the prosecutrix to deliver it in the house of Rania Ram and also bury and bring soap from the shop but the victim did not return back till about 9.00 P.M. Usha Devi got worried and came out of house in search of the victim. She saw the victim coming from the side of a nullha below alongwith the accused who fled towards his house. Victim was frightened. Usha Devi asked her the reason but she did not disclose anything. She took her to the house where she told her that Khoja Ram had sexually assaulted her. Her husband had not returned from the wedding. She waited for the arrival of her husband next day and report was lodged with the Police and FIR was registered on the statement of Usha Devi (PW4). The accused was arrested by Assistant Sub Inspector Krishan Gopal (PW-13).

4. The victim was medically examined by Dr. Sushima Sharma, then Medical Officer, Civil Hospital, Nurpur (PW1) who found the hymen of the victim ruptured but healed. Carenculae myrtiformis was present. The uterus was normal and mobile fornices were clear. The victim was found to be mentally retarded. Dr. Sushima has recorded the age of the victim to be thirty years. There was no injury or violence mark on any part of the body of the victim. According to the opinion of Dr. Sushima Sharma, the possibility of sexual assault could not be ruled out. The victim was also examined by Psychiatrist who found the victim to be mild to moderate mentally retarded. Keeping in view the report of the Psychiatrist and medical examination of the victim. Dr. Sushima Sharma concluded that "possibility of sexual assault could not be ruled out."

5. The trial court on appreciation of evidence of the victim, her sister-in-law, the Doctor and looking to the statement of the accused under Section 313 of the Code of Criminal Procedure, convicted the accused. The conviction is assailed on the grounds: a) The evidence of the victim could not be relied upon as she was mentally retarded: b) The prosecution has failed to prove the case beyond reasonable doubt. c) The Doctor who examined the accused found absence of smegma but at the same time blood stains were also found on glen penis of the accused which would go to show that accused had taken a both after the occurrence. d) There was no injury on the person of the victim which negatives the allegation of rape.

6. Heard Mr. Ravinder Thakur, learned counsel for the appellant and Mr. R.M. Bisht, learned Deputy Advocate General for the State.

7. So far the question whether the evidence of the victim is acceptable or not, learned trial Judge, while examining the victim noticed that the victim, was asked certain questions and from the answers to those questions, the witness was found "capable to make the statement". It is the evidence of the victim that on the fateful day, she was carrying a packet of sweets of Rania Ram as given by her sister-in-law Usha Devi (PW4). She was accosted by the accused on her way to the house of Rania Ram. Accused catgut hold of her, took her towards nullah. Accused touched her private parts, opened her salwar, laid her down on the ground, fiddled with her breast, penetrated his finger in her vag