The central legal point established in the judgment is the importance of the victim's incapacity to communicate and the intention of the accused in determining the offense, as well as the distinction between different offenses related to sexual assault.

R.C. Mishra, J.

1. This appeal has been preferred against the judgment dated 15.7.2005 passed by Additional Judge to the Court of Additional Sessions Judge, Burhanpur in S.T. No. 198/2004 whereby the appellant was convicted under Section 376(2)(a)(i) of the IPC and sentenced to undergo R.I. for 10 years and to pay fine of Rs. 5000/and in default, to suffer R.I. for 2 years.

2. Prosecution case, in short, may be narrated thus -

(i) At the relevant point of time, the appellant was posted as Assistant Sub-Inspector at Lalbagh Police Station in Burhanpur.

(ii) In the night intervening 7th and 8th Sept. 2004, on the festive occasion of Krishna Janmashtmi, a religious function was organized in Adarsh Colony, Burhanpur. At about 11.30 p.m., Sunil (PW10), an inhabitant of the colony, heard cries of a woman coming from the backside of his house. He immediately rushed to the temple and informed Balbir Arora and Vijay (PW9) accordingly. All the three boys came to the spot located in front of Param Restaurant and found a motorcycle parked there. They also saw that in the nearby bushes, the prosecutrix (a mentally challenged beggar aged about 50 years), who had been staying in the temple for last few days, was sitting in a half-naked condition holding her salwar and the appellant was coming out therefrom pulling his trousers up. He angrily asked them as to why they were making a noise and the corresponding reply led to an altercation that attracted attention of the other inhabitants of the locality.

(iii) In the meanwhile, at about 11:50 p.m., Amritlal (PW7), an Ex-member of Parliament, who was returning home, situated behind the Restaurant only, in a Maruti Car, happened to pass that way. He stopped the vehicle; got down and asked for the reason for the assemblage. In response, he was informed that a police officer in uniform viz. the appellant was seen in the bushes with the prosecutrix under suspicious circumstances. Amritlal asked the appellant, who was in a drunken condition, as to what was going on. In turn, shouting that what authority he had to enquire into the matter, the appellant started misbehaving with him. Disclosing his identity as Dabar ASI posted at P.S. Lalbagh Burhanpur, the appellant further threw a challenge to settle the score with Amritlal in case, he came to the Police Station. At this juncture, Amritlal could also witness that the prosecutrix was standing near the bushes with salwar in her hand.

(iv) Amritlal immediately proceeded towards the Police Station in his car only and the appellant also reached there on the motorcycle. However, in the process, he left wireless set allotted to him at the place of occurrence only. At the Police Station, as Amritlal disclosed his identity as Ex-Member of Parliament, the appellant started hurling filthy abuses and threats at him and his companions including Sunil and Vijay.

(v) It was upon the FIR (Ex.P-6) lodged by Amritlal that a case under Sections 294, 506B and 354 of the IPC was registered at the police station at 1.40 in the night.

(vi) The prosecutrix was immediately sent to Nehru Hospital for medical examination. It was conducted at about 3:00 in the same night, by a panel of doctors comprising Dr. Jainuddin Bohra (PW4) and Dr. Lalita Gupta (PW11). Not being able to give any definite opinion as to recent sexual intercourse, Dr. Lalita Gupta prepared two slides from vaginal smear of the prosecutrix and also preserved her pink coloured salwar for chemical examination.

(vii) The appellant was apprehended and subjected to medical examination at about 4:50 in the night. Dr. K.M. Gupta (PW6) noticed that the appellant had consumed alcohol but was not under intoxication.

(viii) During investigation, on 8.9.2004, a uniform said to have been worn by the appellant at the time of alleged incident was also seized and the wireless set allotted to him was also recovered from the spot. The uniform along with salwar of the prosecutrix and the slides prepared from her vaginal smear were