JUDGMENT Surinder Singh, J. The appellant to be referred as “the accused” felt aggrieved by the judgment of his conviction and sentence passed by the learned Additional Sessions Judge, in Sessions trial No. 13 of 2011 decided on 20.12.2011 for the offence punishable under Section 376 Indian Penal Code, for allegedly committing rape on a woman aged about 45 years who was mentally retarded, whereby he has been sentenced to undergo imprisonment for a period 7 years and to pay a fine of Rs. 20,000/- with the default clause. The benefit under Section 428 of the Code of Criminal Procedure was also accorded to the accused. 2. Succinctly stated, the facts giving rise to the present appeal are that the husband of the prosecutrix had died about one and a half years ago from the date of the alleged incident. She is mentally retarded and living with her married daughter PW1 Smt. Godavari, who used to look after her. On 10.11.2010 at about 5 p.m. Smt. Godavari aforesaid had gone to cut the grass with the prosecutrix. Both of them were at some distance. After about 45 minutes, she went to the prosecutrix to check the progress. At that time she noticed a person, who on seeing her tied his pant and ran away. She asked PW2 Prinshu, who was nearby, to identify the man. He confirmed that it was the accused. Smt. Godavari went to the prosecutrix and she complained to her about the rape committed by the accused upon her. The prosecutrix was taken to home. On the arrival of PW3 Tek Singh her husband, the matter was reported to police. 3. Police recorded the statement of the complainant under Section 154 of the Code of Criminal Procedure Ext. PW1/A which culminated into FIR Ext. PW13/A. PW13 ASI Amar Nath conducted the investigation of this case. He moved an application Ext. PW5/A for conducting medical examination of the prosecutrix in zonal hospital Mandi. 4. PW5 Dr. Sarla Chand medically examined the prosecutrix on 11.11.2010. She did not notice any mark of injury on the body of the prosecutrix. The prosecutrix had not taken bath or changed her clothes after the sexual assault. Her shirt Ext. P3 and salwar Ext. P4 were taken into possession by the doctor which were sealed and handed over to the police for forensic examination. She issued medico legal certificate Ext. The prosecutrix had not taken bath or changed her clothes after the sexual assault. Her shirt Ext. P3 and salwar Ext. P4 were taken into possession by the doctor which were sealed and handed over to the police for forensic examination. She issued medico legal certificate Ext. PW1/A. In the opinion of the doctor, the prosecutrix was exposed to sexual intercourse. 5. The prosecutrix was referred to Composite Regional Centre (CRC) Sundernagar, from there to IGMC Shimla and ultimately referred to PGI Chandigarh by PW11 doctor Dinesh Dutt Sharma where she was examined by PW15 Dr. Rama Malhotra, Department of Psychiatry for I.Q. assessment. According to the doctor, the prosecutrix was having inappropriate smile. She could tell body parts, names of the things present, colour, number concepts and could recognize currency notes of denomination Rs. 50 or Rs. 100 but failed to add. The prosecutrix was not having the time concept. Further, the prosecutrix was subjected to ‘gesell’s drawing test’ and her mental age was assessed four years with performance quotient of 29. On ‘seguin form board test’, evidenced the mental age 3.5 years. Further on the ‘Vineland social maturity scale’ her age was 6 years with social quotient as 43. As per the opinion of the doctor, the prosecutrix could dress and undress herself, toilet trained, could bath herself, could feed herself and could be engaged in the routine unskilled tasks. With her mental retardation, her I.Q was 36. The doctor issued the report Ext. PW15/A to this effect and finally opined that the prosecutrix was unable to understand the consequences of the acts. 6. The accused was arrested. He was also medically examined by PW10 Dr. K.R. Sharma. He was found capable of performing sexual intercourse. The medico legal certificate is Ext. PW10/B. 7. An application was moved by the police for taking blood sample of the accused before PW10 Dr. K.R. Sharma for DNA examination. His blood sample was taken on two FTA cards. The cards were sealed with seal of the hospital and filled up the identification form Ext. PW10/C. His signatures and thumb impression were taken on the form. Underwear Ext. P5 of the accused was also taken and sent for analysis. As per report of the forensic science laboratory Ext.PW12/A, vaginal swabs, salwar of the prosecutrix and underwear of the accused contained human semens. PW10/C. His signatures and thumb impression were taken on the form. Underwear Ext. P5 of the accused was also taken and sent for analysis. As per report of the forensic science laboratory Ext.PW12/A, vaginal swabs, salwar of the prosecutrix and underwear of the accused contained human semens. The DNA was also conducted in the State Forensic Science Laboratory. The report is Ext. PW12/B. 8. The DNA was subjected to DNA isolation and purification using the FTA protocol and was subjected to Multiplex PCR for co-amplification of 15 utosomal STR loci and Amelogenin using AmpF/STR Identifier Plus PCR Amplication Kit. The following were the observations:- “OBSERVATIONS: (i) In Exhibits-1 and Exhibit-2 it was possible to amplify all the fifteen Autosomal STR loci and Amelogenin with the AmpF/STR Identifier Plus PCR Amplification Kit. (ii) At all the 15 STR loci examined in the present analysis, the genotype profile obtained from Exhibit-2 (Blood sample of Padam Singh) matches with [Exhibit-2 (Male DNA fraction of Vaginal Swabs of Kanta Devi) of letter no. Nil dated Nil of SFSL report no. 1989-B/SFSL/DNA-57/10.]” 9. The conclusion based upon the above test was as under:- “Conclusion: i) Complete DNA profile was obtained from Exhibit-1 (Blood sample of Kanta Devi). ii) Complete DNA profile was obtained from Exhibit-2 (Blood sample of Padam Singh). iii) These profiles were compared with the DNA profiles obtained from Exhibits examined and reported vide SFSL report no.1989-B/SFSL/DNA-57/10.” 10. As per SFL report Ext. PW12/C, on the basis of the analysis performed, it was concluded:- “CONCLUSION: 1. The DNA profile obtained from the Male DNA fraction extracted from Exhibit-2 (vaginal swabs) matches completely with the DNA profile obtained from Blood sample of Padam Singh (Exhibit-2 of letter no.2645/5A dated 6.5.2011 SFSL report no. 714/SFSL/DNA (56)/11) ;hence Mr. Padam Singh is the contributing source of the male DNA in the exhibit-2 (vaginal swabs) 2. One of the DNA profile obtained from Exhibit-1a (Salwar of prosecutrix (name withheld) matches completely with the DNA profile obtained from Blood sample of Padam Singh (Exhibit-2) of letter no.2645/5A dated 6.5.2011 SFSL report no. 714/SFSL/DNA (56)/11). 3. Nothing specific can be interpreted from partial DNA profiles obtained from Exhbit-1b (Kameez of prosecutrix (name withheld), Exhibit-3 (pubic Hair of prosecutrix), Exhibit-5b (Shirt of Padam Singh), Exhibit-6 (underwear of Padam Singh) and Exhibit-7 (pubic Hair of Padam Singh).” 11. 714/SFSL/DNA (56)/11). 3. Nothing specific can be interpreted from partial DNA profiles obtained from Exhbit-1b (Kameez of prosecutrix (name withheld), Exhibit-3 (pubic Hair of prosecutrix), Exhibit-5b (Shirt of Padam Singh), Exhibit-6 (underwear of Padam Singh) and Exhibit-7 (pubic Hair of Padam Singh).” 11. Based upon the aforesaid report, the accused was connected with the offence charged as such challan was presented in the Court for his trial. He was accordingly charge-sheeted to which he pleaded not guilty and claimed trial. 12. To prove its case, prosecution examined PW1 Smt. Godavari Devi besides examining prosecutrix and other witnesses. Accused took up the defence of enmity in the cross examination of the witnesses. He was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. 13. When called upon to enter into his defence, he examined DW1 Gopal Sharma, Record Keeper PNB Bank Nairchowk, District Mandi, H.P. He stated that as per record of the Bank, prosecutrix was maintaining her account which was being operated personally by her. She used to put her thumb impression on the withdrawal forms. He stated that he knew her as a customer of the bank who was identified by Ram Lal a resident of her village. At the end of the trial, the learned trial Court came to the conclusion that the defence could not be probablized by the accused, however, relied mainly upon the DNA report and also the statement of complainant PW1 coupled with the statements of other medical witnesses. Thus, accused was convicted and sentenced as aforesaid which has been challenged in the present appeal. 14. Shri G.R. Palsara, learned counsel for the accused vehemently argued that the prosecutrix did not support prosecution case and otherwise also she is proved to be a woman of normal intelligence. The consent is made out from the evidence on record and the learned trial Court wrongly convicted and sentenced the accused and alternatively, in case maintaining conviction, prayed for leniency in sentence. 15. Contra Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence submitted that the scientific investigation /medical reports clearly indicate that the prosecutrix was of unsound mind, having intelligence of a 6 years child and the accused stands fully connected with the crime. 15. Contra Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence submitted that the scientific investigation /medical reports clearly indicate that the prosecutrix was of unsound mind, having intelligence of a 6 years child and the accused stands fully connected with the crime. Therefore, her consent is immaterial and in so far as the sentences is concerned, according to him though the learned trial Court had rightly sentenced him to undergo imprisonment for 7 years still if the circumstances so warrant, it may be reasonably reduced. 16. To appreciate the rival contentions I venture to discuss the relevant evidence produced by the prosecution in the instant case. 17. PW1 Smt. Godavari Devi daughter of the prosecutrix testified that she had taken her mother (prosecutrix) to ghasni to cut the grass. She herself was cutting the grass at some distance at a different place. After about 45 minutes, in order to check her mother, she went there and saw a man running. Her nephew PW2 Prinshu was also cutting grass with her nearby. She told him to identify the man. He did not reveal anything to her. But however, inquired from the prosecutrix, she stated that she could not identify him. On further inquiry from her, she sometimes replied in affirmative and sometimes in negative. Since she deviated from her previous statement as such, she was cross-examined by the learned Public Prosecutor after taking permission from the Court. Then she stated that her mother being a simpleton person used to speak less. Perusal of her cross-examination shows that virtually she tried to help the accused by not identifying him for obvious reasons. Even her cousin PW2 Prinshu turned hostile for. But the connecting evidence in the instant case is medical/scientific evidence. 18. PW15 Dr. Rama Malhotra on her medical examination did not rule out the possibility of sexual intercourse with the prosecutrix. Her wearing apparels, i.e., shirt Ext. P3 and the salwar Ext. P4 were taken into possession, sealed and sent for forensic science examination. These clothes were not changed by the prosecutrix after the incident. The prosecutrix was also referred to mental assessment. PW15 Dr. Rama Malhotra clearly opined, on the basis of the tests performed her mental age was 6 years and she also opined that the prosecutrix was unable to understand the consequences of the act. 19. These clothes were not changed by the prosecutrix after the incident. The prosecutrix was also referred to mental assessment. PW15 Dr. Rama Malhotra clearly opined, on the basis of the tests performed her mental age was 6 years and she also opined that the prosecutrix was unable to understand the consequences of the act. 19. The forensic report of DNA Ext. PW12/C clearly establishes that DNA profile obtained from the accused was contributory source of the DNA profile of the vaginal swabs of the prosecutrix which also matches with the salwar of the prosecutrix. This fact remained un-assailed. Therefore, it stands fully proved that the prosecutrix was sexually assaulted by the accused. 20. The next question remains whether she had consented for such an act? Keeping in view the mental status of the prosecutrix that she was mentally retarded woman, her consent for sexual intercourse, therefore, would not constitute consent for the purpose of Section 376 Indian Penal Code. The reading of the provisions of sub-section (5) of Section 375 Indian Penal Code shows that if a person indulges in sexual intercourse with a women under various circumstances, would be said to commit rape. In other words, it very clearly indicates that if a person indulges in sexual intercourse with a woman even with her consent, when at the time of giving such consent by reason of unsoundness mind, she is unable to understand the nature and consequence of the act of which she has given consent, also falls within the definition of rape. 21. In the instant case, PW15 Dr. Rama Malhotra testified that the prosecutrix was unable to understand the consequences of the act. She was a mentally retarded woman and unable to distinguish between right and wrong. She is stated to have been withdrawing the money from the bank on account of pension of her husband but she could only recognize the currency notes of denomination Rs. 50 and Rs. 100 but failed to count it as opined by the doctor. Thus even her consent for sexual intercourse, therefore, would not constitute consent for the purpose of Section 376 Indian Penal Code. 22. 50 and Rs. 100 but failed to count it as opined by the doctor. Thus even her consent for sexual intercourse, therefore, would not constitute consent for the purpose of Section 376 Indian Penal Code. 22. Keeping in view the mental status of the prosecutrix, her helplessness resignation in the fact of inevitable compulsion, non-resistance or passive giving in, when volitional faculty is either clouded by any disability or fear or duress, cannot be deemed to be “consent” under the law. Therefore, the defence of consent taken by the accused is also rejected. 23. The defence of enmity against the proved facts, as discussed above, is completely ruled out and is rejected. 24. On the re-appraisal of the evidence aforesaid, in my considered opinion, the offence charged stands fully proved against the accused and I find no fault in the conviction of the accused recorded by the learned trial Court. 25. In so far as the sentence is concerned, the learned counsel for the accused submitted that the accused has two minor children. He is a sole bread earner of the family and presently aged about 38 years having no criminal history to his credit. It is also submitted that he belongs to a poor family and is lodged in the jail since his arrest for the last more than one year nine months. 26. Keeping in view the mitigating and extenuating circumstances and also the proved facts in my opinion, the interest of justice would be met if the substantive sentence is reduced to 5 years instead of 7 years without disturbing fine and the default clause. With this modification in sentence, the appeal is dismissed and is accordingly disposed of. 27. The learned trial Court is directed to issue modified warrant of sentence of the accused to the Superintendent Jail concerned, in conformity with this judgment. 28. Send down the records.