JUDGMENT (ORAL) A.A. Halbe, J. - The appellant has preferred this appeal against the judgment of conviction for offence under section 376 Indian Penal Code and sentence of R.I. for 5 years passed by the Sessions Judge, South Goa, in Sessions Case No. 42/90. The main grievance made in this appeal is that the evidence of prosecution suffers from serious infirmities on the question of place where the rape took place and also on the question of identification of the appellant/accused. Admittedly, no identification took place and that is the major ground which should persuade this court allow the appeal and to acquit the accused of the charge of rape. 2. This has been countered by the learned Public Prosecutor and he has forcefully urged that this is a case of rape on the victim - Sylvia Pareira, which fact is supported by not only the medical evidence but the First Information Report which was lodged soon after the incident and also the conduct evidence of Sylvia in conveying this story of rape to her sister - Elcy Pareira and in view of this overwhelming evidence, the slight contradictions pointed out by the learned advocate for the appellant should be discarded and that the reasoned judgment of the Sessions Judge should be upheld. 3. In order to appreciate those rival arguments, salient facts of the prosecution case shall have to be noted. Miss Sylvia Pareira, aged about 26 yrs., is residing at Carmona, Demelowado, H. No. 213. She has been residing with her mother, father, brother and sister. On 20th September, 1987, being Sunday, her parents, sister and brother left the house to attend the mass prayer at Carmona church. She was thus alone in the house. The present appellant/accused knew this situation since he was engaged for toddy tapping by the said family. Taking advantage of Sylvia being alone in the house, it is alleged, that the appellant entered the kitchen of the house and enquired with her as to what Sylvia was doing. Before any answer could be rendered it is alleged, that the appellant caught hold of the hairs of Sylvia, laid her down on the floor, removed her half pant and underwear and committed forcible rape on Sylvia. She shouted for help, but could not resist the sexual overture by the appellant/accused. Before any answer could be rendered it is alleged, that the appellant caught hold of the hairs of Sylvia, laid her down on the floor, removed her half pant and underwear and committed forcible rape on Sylvia. She shouted for help, but could not resist the sexual overture by the appellant/accused. The net result was that she was raped which resulted in heavy bleeding from her private part. Since, this caused pain to Sylvia, she raised cry for help "Avois". Soon her sister and mother arrived she conveyed the entire story of rape by the appellant to both of them. Since she was having profuse bleeding from her private part, the relations of the victim removed her to the hospital, but prior to that one doctor was summoned to render immediate help but the doctor finding that this was a medico legal case, directed the relations to proceed to the police and then to Government hospital. Accordingly, the victim was removed, police complaint was lodged by the victim and soon the investigation commenced. The victim was medically examined by the doctor. Statements of various witnesses were recorded. It seems that the earth mixed with blood attached from the scene of occurrence and other articles could not be forwarded to the chemical analyser because they were lost on account of the shifting of the police station from old building to new building. On these facts, the appellant was charged for offence under section 376 Indian Penal Code. On his pleading not guilty, the learned Sessions Judge examined as many as 9 witnesses. The learned Sessions Judge on extensive appreciation of oral as well as documentary evidence found favour with the prosecution, held the appellant guilty and proceeded to convict and sentence him as above. 4. Being aggrieved by this judgment, the appellant has preferred this appeal and the learned advocate for the appellant has vehemently contended that whereas Sylvia speaks of rape having taken place in the kitchen, the evidence of her sister and the panchanama indicate some other place. It is also contended that the nightie which was full of blood, according to Sylvia was also not attached. Equally strange is that the towel which Sylvia used for preventing the blood and which was worn at the time of examination, was also not attached by the doctor or by the police. It is also contended that the nightie which was full of blood, according to Sylvia was also not attached. Equally strange is that the towel which Sylvia used for preventing the blood and which was worn at the time of examination, was also not attached by the doctor or by the police. These are the telling circumstances, which introduce serious infirmity in the consistency of the story of the prosecution and in that light, the appellant is at least entitled for benefit of doubt. The other argument that is canvassed on behalf of the appellant is that no identification Parade was he1d. 5. Taking the last argument regarding the identification, (P.W. 1) Elcy Pareira and the victim Sylvia clearly state that the appellant was engaged on previous occasions for toddy tapping. Even the father of the victim - Alexinha has stated that the appellant was toddy tapper and that position has not been seriously challenged in the cross-examination of these two witnesses. It is nowhere suggested that the appellant had never gone to their house for toddy tapping and it will be, therefore, futile in a day to argue that the appellant was not known to the victim or to the neighbours thereof. 6. Now, turning to the story rendered by the victim Sylvia, at Ex. 15, it can be noticed that she is mentally retarded. The Court, in its endorsement, observed that the witness - Sylvia appeared to be retarded and that she was not able to say as to what is her full name and from which village she was hailing. In that regard, at this stage it would be proper to turn to the evidence of doctor Cuncolioncar (P.W. 7) at Ex. 30. He is a psychiatrist, working as Medical Officer at the Institute of Psychiatric; Panjim. He examined Sylvia and he found that she was suffering from mental sub-normality and that seems to be the ailment with which she was suffering since her childhood. He submitted report at Ex. 7 A in that behalf. Now, defining as to what is meant by mental sub-normality, he has stated that such person can know the nature of his or her act but that person cannot know as to what she is doing is right or wrong or she cannot also appreciate the serious consequences of the act. 7 A in that behalf. Now, defining as to what is meant by mental sub-normality, he has stated that such person can know the nature of his or her act but that person cannot know as to what she is doing is right or wrong or she cannot also appreciate the serious consequences of the act. He has also stated that a female victim suffering from mental sub-normality may not resist sexual intercourse, as the victim would not know as to what she is doing whether it is wrong or right since she does not know the consequences of the same. In the cross-examination, no attempt has been made to dislodge this doctor from this contention. Questions have been put to categorise the mental relation. However, when one peruses the cross-examination, one would not gather that a victim with mental sub-normality is practically on the border of insanity, meaning thereby incapable of knowing what that person is doing or not doing, muchless the consequences of the acts committed by that person. It would be thus obvious that according to this witness - Concolienkar, Sylvia although was suffering from mental sub-normality, cannot be said to be a female incapable of knowing that she was being sexually raped. On the other hand, one pertinent circumstances, which emerges from this evidence is that such a female may not resist the said rape or involuntary sexual intercourse. It is in this light that the evidence of Sylvia shall have to be appreciated. 7. Sylvia was put several questions and it seems that she has stuck to the principal story narrated by her in the First Information Report at Ex. 16. She has stated that before about 7 years, in the morning at about 8.00 a.m., her sister and mother had gone to church, since that was Sunday. Their front door was not locked but was simply shut and she was in the kitchen. She was alone in the house and she has positively stated that the accused came inside the house, he directly came to her kitchen, threw her on the ground, touched his penis and removed her nightie and under pant, removed his own pant and under pant and committed rape on her. She suffered ache in her private part. She was alone in the house and she has positively stated that the accused came inside the house, he directly came to her kitchen, threw her on the ground, touched his penis and removed her nightie and under pant, removed his own pant and under pant and committed rape on her. She suffered ache in her private part. She felt giddiness and she has further stated that blood started coming from her private part and her night dress was smeared with blood. The accused told her to wash the clothes smeared with blood. Continuing her story, she has stated that after some time her mother and sister came to the house from church and when they asked her she told to both of them that the accused had committed rape. They started shouting and crying for help. She was then taken to the police and then to the hospital. In her further questions, she has stated that accused used to do the work of toddy tapping from the trees at their house. In the cross-examination, she has reaffirmed that she shouted for help by saying "Avois Avois". She has further stated that she did not offer any resistance to the accused. According to her, she was lying on the ground when the accused removed his pant and under pant. She has also described the colour of the under pant put on by the accused, so also, the short pant. She has categorically stated that the suggestion made by the defence that the entire narration is a cock and bull story, was false. Now, when one looks to the F.I.R. at Ex. 16, virtually the same story is made out. It cannot be lost sight of that the F.I.R was lodged on the same day of the accident. The F.I.R thus becomes a corroborative piece of evidence to the story narrated by the victim. 8. At this time, it would be appropriate to consider the medical evidence and the medical evidence in of (P .W. 4) Purnan and Audi at Ex. 19. He is the Assistant Professor of Legal Medicine in the Goa Medical College. He has deposed that on 20th September, 1987, he examined the victim Sylvia. She was found to be mentally retarded. She was, however, otherwise normal so far as her physical development was concerned. 19. He is the Assistant Professor of Legal Medicine in the Goa Medical College. He has deposed that on 20th September, 1987, he examined the victim Sylvia. She was found to be mentally retarded. She was, however, otherwise normal so far as her physical development was concerned. In his examination he did not notice any physical injuries on the body, but he did notice injury on the private part. The pubic hairs were matted due to blood. There was no injuries to the inner part of the thigh but there was a bluish bruise of 1.5 x 1.5 cms. on the right lower part of vulva close to her private part. He has also stated that vagina was distended with blood clots. There was a hymeneal tear extending to the wall at 9 and 3 O'clock position. The margins of the tear were swollen and covered with fresh blood clot. Basing his finding on the above evidence, he has clearly stated that this was a case of rape, that a hard blunt object, may be erected penis, penetrated in the vagina and ruptured the hymen of Sylvia. The age of injury to the private part is shown to be within 12 hours. He further found that vagina was filled with fresh blood clots. He collected two vaginal smears and forwarded the victim for blood grouping to the Medical College and the blood group of Sylvia was A.R.H. positive. Now, in the cross-examination, he has stated that the victim had come to the hospital that her private part covered with darkish towel and that towel was virtually soaked with blood. He could not remove the towel because that would have increased the bleeding. He has also opined that in his questioning Sylvia, he found that the girl was only mentally retarded and not mentally insane. He also speaks that smagma was not present. According to him, smagma would disappear with the person committing rape or alternatively by washing done by pushing back the foreskin of the penis, and this was found in the examination of the accused on 21.9.1987. This circumstance about absence of smagma may not be considered because the accused was examined on the next day of the incident. But all the same, the evidence of doctor so far as the rape on the victim is concerned, appears to be convincing. This circumstance about absence of smagma may not be considered because the accused was examined on the next day of the incident. But all the same, the evidence of doctor so far as the rape on the victim is concerned, appears to be convincing. Doctor has said in many more words that looking to various injuries to the private part of Sylvia, she had suffered rape. The medical evidence would thus tend to support the story of Sylvia. 9. The prosecution has not rusted on this piece of evidence alone. Elcy Pareira - the sister of the victim has also stated that when she and her mother returned from church, she noticed that blood was flowing down from the legs of Sylvia. Her mother started shouting and neighbours came. The police were immediately intimated and the victim was removed to the hospital. She has categorically stated that Sylvia told her that the accused Camila Rodrigues had raped her. In the cross-examination, a suggestion is made that Sylvia did not tell anything to this witness. Suggestions are also made to show the place of incident as in the hut in the backside of the house of Sylvia. But it cannot be lost sight of that the evidence to Elcy Pareira clearly shows the subsequent conduct of the victim which is consistent with the story of rape. As soon as Elcy Pareira appeared on the scene, the victim conveyed to her all the story about the rape as well as the perpetrator, the accused. 10. Prosecution has examined another witness - Joaquime Pareira, who has stated that accused used to come for tapping coconut tree, at her house as well as at the house of Sylvia. She heard, on the day of the incident at about 7.00 a.m., the cries of Sylvia "Avois". She heard another cries shortly thereafter and what was found by her was that Sylvia was washing clothes. Suggestions are made in the cross-examination to show that the cries were emanating from the small hut which is about 8 to 10 mtrs. from the main house of the victim. My attention is also drawn to the panchanama, where it is shown that the place of incident was the small structure of roof with Mangalore tiles covered with palm leaves protection towards north and south and wooden ribs protection towards east and west serving as walls. from the main house of the victim. My attention is also drawn to the panchanama, where it is shown that the place of incident was the small structure of roof with Mangalore tiles covered with palm leaves protection towards north and south and wooden ribs protection towards east and west serving as walls. That was the place which was pointed out by Elcy Pareira to the police. The total structure is described as 15 x 15 ft. There was also found stored fire wood. In the front, the oven was found and near the oven, dry blood stains were found. The samples of dry blood were taken by the police for the purpose of analysis. 11. It may be that the place of incident may not have been accurately described by the witnesses, but in that regard, the evidence of Investigating Officer is that all this area extends over a small structure, which extends to couple of meters. It is also evident that the blood stains were found near the oven and it seems that, that is the place where the victim was being raped. The contradictions pointed out by the learned advocate for the appellant do not merit much consideration in view of the consistent evidence of Sylvia fully corroborated by the medical evidence, as well as the evidence of her sister. On the question of identification, it has been observed here before that absence of identification in this case does not undermine the credibility of the prosecution story since the appellant was known before hand to the family of Sylvia and also to other neighbours. 12. In this view of the matter, it is difficult to disagree with the findings recorded by the learned trial Judge. 13. On the question of sentence, the learned advocate has contended that there are two young children of the appellant, there is none to look after them and accordingly the sentence should be reduced. On going through the judgment of the learned Sessions Judge, I find that he has given less than minimum sentence prescribed. He has also discussed other aspects of the indulgence shown by him to the appellant. Even the sentence, therefore, calls for no interference. Accordingly, appeal is dismissed. The conviction and sentence imposed by the Sessions Judge are hereby confirmed. Appeal dismissed.