JUDGMENT : The appellant is the sole accused in S.C.No.158 of 2010 on the file of the Sessions cum Mahila Court, Madurai. He stood charged for the offence under Sections 450 and 376(1) IPC. The trial Court, by judgment dated 07.06.2012, convicted him under both the charges and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for three months for the offence under Section 450 IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for six months for the offence under Section 376(1) IPC. Challenging the same, the appellant is before this Court with this appeal. 2. The case of the prosecution is as follows; (a) PW1 is the sister of the victim in this case. The victim is a mentally retarded girl aged about 21 years. On 01.06.2009, the victim girl was at her house in Keeraithurai Village, Madurai. The accused in this case was residing in the first floor of the house, wherein the victim girl and her family members were residing in a different portion of the first floor. One Mrs.Subbulakshmi was residing in the ground floor. On 01.06.2009 at about 8 to 8.30 p.m., PW1 was sitting in the ground floor with Mrs.Subbulakshmi and she was engaged in chatting with her. But, PW1 did not notice the accused. Mrs.Subbulakshmi told that the accused was proceeding to the first floor of the house. Therefore, PW1 went up to the first floor of the house. On reaching the portion, where she was residing, she found a door of the house in the main entrance was opened and the other door was closed. When she entered into the house, she found the victim girl lying on the floor and the accused lying on her. According to her, she found the accused doing violence on her. PW1 pulled him. Immediately, the accused prostrated at the feet of PW1 and pleaded to leave him. PW1 cried for help. The people residing in the ground floor rushed to the first floor of the house. On seeing them, the accused fled away from the scene of occurrence. Thereafter, the mother of PW1 returned to her house, to whom PW1 informed about the occurrence. PW1 cried for help. The people residing in the ground floor rushed to the first floor of the house. On seeing them, the accused fled away from the scene of occurrence. Thereafter, the mother of PW1 returned to her house, to whom PW1 informed about the occurrence. Then, they went to the Police Station, where PW1 made a complaint about the occurrence. (b) PW14 was the then Inspector of Police, attached to Madurai City All Women Police Station. On 02.06.2009, PW1 appeared before her at 6.30 p.m. and made a complaint under Ex.P1. She registered a case on the said complaint in Crime No.13 of 2009 under Section 376 IPC. Ex.P9 is the FIR. Then, he forwarded the complaint and FIR to the Court, took up the case for investigation, proceeded to the place of occurrence and prepared an observation mahazar and rough sketch in the presence of the witnesses. Then, she arrested the accused on 03.06.2009 and forwarded him to the Court for judicial remand. She sent the victim girl for medical examination and through Court, she sent the accused also for medical examination. She examined all the witnesses and finally laid a charge sheet against the accused. (c) In order to prove the charges, on the side of the prosecution, as many as 15 witnesses were examined, 11 documents were exhibited and 2 material objects were marked. Out of the said witnesses, PW1 is the sister of the victim girl, who has stated that when she entered into the house, she found the accused lying on the victim girl and causing violence. The victim girl was not examined as she was unable to examine before the Court due to mental retardation. PW2 is the father of the victim girl, who has stated about the preparation of the complaint by PW1 in the Police Station. PW3 is a villager. He is not an eyewitness to the occurrence. He has heard about the occurrence subsequently. According to him, he also went along with PW1 to the Police Station to make a complaint. PW4 is the sister's husband of the victim girl. He is also not an eyewitness. According to him, after the occurrence, he noticed nail marks on the neck of the victim girl. He has further stated that he also made arrangement for making complaint to the Police. PW4 is the sister's husband of the victim girl. He is also not an eyewitness. According to him, after the occurrence, he noticed nail marks on the neck of the victim girl. He has further stated that he also made arrangement for making complaint to the Police. PW5 is yet another sister of the victim girl, who is not an eyewitness. She has also stated that she made arrangement for making complaint to the Police. (d) PW6 – Dr.Mallika had examined the victim girl on 05.06.2009 at 11.30 a.m. According to her, she found nail marks on the breast and chest of the victim girl and there was no injuries on the other parts of the body, including thigh and vagina. The hymen was not intact. The vaginal cavity allowed two fingers to move freely. She collected smears from the vagina of the victim girl and forwarded the same for chemical examination. According to her, there was no recent sign of any rape. She has further opined that the victim girl would have been subjected to sexual intercourse some time before. PW7 is the Police Constable, who had taken the accused to the hospital for examination. PW8 has also spoken to the same fact. PW9 – Dr.Alavudeen had examined the accused on 05.06.2009 at 12.00 noon. He has opined that the accused was capable of having penile sex with any woman and he was not impotent. PW10 -the Scientific Assistant, who had examined the smears taken from the discharge through the vagina of the victim girl, has opined that there was no sperm or spermatozoa. PW11 is a Constable, who gave bundobusth to the victim girl at the relevant time. PW12 – Dr.Geethaanjali is an Assistant Professor in the Department of Psychiatry at Madurai Rajaji Government Hospital. She examined the victim girl on 05.08.2009 and gave treatment for her till 18.08.2009. According to her, the victim girl is a mentally retarded girl, who cannot even speak. PW13 is the Chemical Analyst, who examined the petticoat and jacket of the victim girl, which were worn by her at the time of alleged occurrence. On examination, PW13 had found neither semen nor spermatozoa in the same. PW14, the investigating officer, has stated about the registration of the case and investigation done. PW13 is the Chemical Analyst, who examined the petticoat and jacket of the victim girl, which were worn by her at the time of alleged occurrence. On examination, PW13 had found neither semen nor spermatozoa in the same. PW14, the investigating officer, has stated about the registration of the case and investigation done. (e) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. On the side of the accused, his wife was examined as DW1. However, no document was marked on his side. DW1 has stated that the victim girl used to commit nuisance, due to which there was dispute between both the families and in order to reck vengeance, the present case foisted against her husband. DW1 has further stated that during the relevant time, her husband viz., the appellant was at his work place. (f) Having considered all the above, the trial Court convicted him under both the charges and accordingly, punished him. That is how he is before this Court with this appeal. 3. I have heard Mr.Lingarasu, learned Legal Aid Counsel, appearing for the appellant and Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor, appearing for the State. I have also perused the records carefully. 4. The learned counsel appearing for the appellant would submit that except PW1, there is no other eyewitness to speak about the occurrence. According to him, the other witnesses examined were all only hearsay witnesses. The learned counsel would further point out that the evidence of PW1 deserves to be rejected, because she is highly interested in the case of the prosecution and related to the victim girl. According to him, in the absence of any corroboration, it is not safe to rely on the evidence of PW1 and to convict the accused. The learned counsel appearing for the appellant would further point out that the medical evidence clearly belies the version spoken to by PW1. He would also submit that even assuming that the evidence of PW1 is true, the same would not go to prove the offence under Section 376(1) IPC. At any rate, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts. Therefore, the appellant is entitled for acquittal. 5. The learned Additional Public Prosecutor would, however, vehemently oppose this appeal. At any rate, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts. Therefore, the appellant is entitled for acquittal. 5. The learned Additional Public Prosecutor would, however, vehemently oppose this appeal. According to him, since the victim girl was mentally retarded, she could not be examined and therefore, the prosecution is left only with the evidence of PW1. The learned Additional Public Prosecutor would further point out that PW1 went into the house and found that the accused was lying on the mentally retarded girl. PW1 further stated that he was causing violence. This, according to the learned Additional Public Prosecutor, would go to clearly prove the offence under Section 376(1) IPC as well as under Section 450 IPC. 6. I have considered the above submissions. 7. Simply because, PW1 happens to be the sister and also highly interested in the prosecution case, her evidence cannot be totally rejected. Law requires that her evidence only requires close scrutiny. A perusal of her evidence, including the answers elicited during the cross examination, would go to show that her evidence is very cogent and convincing. Absolutely, I find no reason to reject the evidence of PW1. Though a motive is suggested by DW1 that due to family dispute, this case has been foisted against her husband and though it is stated by her that during the relevant time, her husband was at his work place, neither oral nor documentary evidence filed on the side of the accused in order to prove the same. 8. In fact, PW1 has, in a vivid fashion, stated that when she entered into the house, she found the accused lying on the victim girl and causing violence. To that extent, in my considered opinion, there is no reason to reject her evidence. But, the question is whether this would be sufficient to prove the offence of rape. As per Section 375 IPC, the penile penetration either in full or part is essential to make out an offence of rape. The evidence of PW1 does not go to prove neither full penile penetration nor partial penile penetration by the accused. She has only stated that the accused was lying on the victim girl. Above all, the medical evidence would go to show that there was no recent sign of rape. The evidence of PW1 does not go to prove neither full penile penetration nor partial penile penetration by the accused. She has only stated that the accused was lying on the victim girl. Above all, the medical evidence would go to show that there was no recent sign of rape. Apart from that, the Scientific Analysis report would go to show that in the smear taken from the discharge through vagina of the victim girl contained no sperm or spermatozoa. Similarly, the chemical analyst, who examined the petticoat and jacket of the victim girl, opined that there was no semen or spermatozoa found on the same. These evidences would go to show that there was no penetration either in full or in part. It appears that even before the accused could start penetrating, PW-1 had entered into the house. Therefore, the evidence of PW1, coupled with the medical evidence and the evidence of the Scientific Assistants, would only go to show that even before the accused could commit the offence of rape and when the attempt was underway, PW1 had entered. Thus, the offence committed by the accused, as it is reflected from these evidences, would only go to show that the accused had made attempt to rape the victim girl. Therefore, he is liable to be punished only under Section 376 r/w 511 IPC. Similarly, he is also liable to be punished under Section 451 IPC for having trespassed into the house. 9. Now, turning to the quantum of sentence to be imposed, it is stated that the accused was aged about 49 years at the time of occurrence. He has got a family to look after. He has no bad antecedent. After the occurrence also, he has not committed any other crime. He has been in jail from the date of conviction. Having regard to these mitigating circumstances and the aggravating circumstances, in my considered view, sentencing the accused to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 376 r/w 511 IPC would meet the ends of justice. Similarly, for the offence under Section 451 IPC, sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one month would meet the ends of justice. 10. Similarly, for the offence under Section 451 IPC, sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one month would meet the ends of justice. 10. In the result, this criminal appeal is partly allowed in the following terms; (a) The conviction and sentence imposed on the appellant under Sections 450 and 376(1) IPC is set aside and he is convicted under Sections 376 r/w 511 and 451 IPC. (b) The appellant is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 376 r/w 511 IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one month for the offence under Section 451 IPC. The sentences shall run concurrently. The period of sentence already undergone shall be set off under Section 428 IPC. 11. Before parting with this appeal, I would like to place my appreciation to Mr.Lingarasu, learned Legal Aid counsel, for the service rendered by him. The Legal Aid Services Authority is directed to pay his remuneration.