JUDGMENT : 1. Appellant along with Asha Devi and Poonam Chauhan had faced trial under Section 376(2)(c) Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in FIR No. 223 dated 6.8.1994 registered at Police Station Jawahar Nagar, Jaipur under Section 376/120-B I.P.C. Trial court vide judgment/order dated 26.02.2002 ordered the conviction and sentence of the appellant under Section 376(2)(c) I.P.C. Co-accused Asha Devi and Poonam Chauhan were acquitted of the charges framed against them. Aggrieved against his conviction and sentence by the trial court, appellant preferred S.B. Criminal Appeal No. 341/2002 in this court. Vide order dated 3.1.2007, appeal was allowed and the conviction and sentence of the appellant was set aside and the case was remitted to the trial court for re-trial. 2. The operative part of the judgment dated 3rd January, 2007 reads as under:- "5. In the instant case as already noticed, I am of the opinion that retrial of the case is necessary. So far as the position of law is concerned, in the retrial the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. Learned trial Judge therefore has to decide the case on the basis of evidence already on record and the additional evidence of Jai Laxmi @ Suraiya, whose statement shall now be recorded under section 311 CrPC. The learned trial court however shall be at liberty to recall the witnesses already examined as well as other witnesses whose evidence is essential to arrive at the truth and just decision of the case. 6. In the ultimate analysis I am of the opinion that in the absence of statement of prosecutrix Jai Laxmi @ Suraiya, the conviction and sentence of the appellant is unmerited. 7. For these reasons, I dispose of instant appeal in the following terms:- (i) The judgment of learned trial court as well as conviction and sentence of appellant under section 376(2)(c) IPC shall stand set aside. (ii) The case is remitted to learned Additional Sessions Judge No. 1 (Fast Track) Jaipur City for retrial. Record of the case be sent back to learned Additional Sessions Judge No. 1 (Fast Track) Jaipur City. (iii) As a consequence of setting aside the impugned judgment of conviction and sentence of appellant it is not required to keep the appellant behind the bars. Record of the case be sent back to learned Additional Sessions Judge No. 1 (Fast Track) Jaipur City. (iii) As a consequence of setting aside the impugned judgment of conviction and sentence of appellant it is not required to keep the appellant behind the bars. Learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City therefore is directed to release the appellant Laddu Gopal on bail provided he furnishes personal bond in the sum of Rs. 50,000/- with one surety of the like amount to ensure his presence on each day of the trial. Ten days time is granted to furnish bail bonds. (iv) The Deputy Registrar (Judicial) is directed to immediately remit the case file to learned Additional Sessions Judge (Fast Track) No. 1 Jaipur City, Jaipur with a copy of this judgment." 3. On re-trial, appellant was convicted and sentenced by the trial court under Section 376(2)(c) I.P.C. vide judgment/order dated 28.08.2017 and the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rupees two lacs (in default of payment of fine, appellant shall further undergo rigorous imprisonment for one year). Hence, the present appeal by the appellant. 4. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. After retrial, trial court has erred in awarding higher sentence of imprisonment to the appellant. Initially, appellant was sentenced to undergo rigorous imprisonment for ten years, whereas, after re-trial, appellant has been sentenced to undergo life imprisonment. Appellant was working as a sweeper in the male ward of the Retarded Woman and Child Rehabilitation Home, Sethi Colony, Jaipur (hereinafter referred to as 'Home'). Whenever, the sweeper posted in the female ward was on leave, appellant used to work in the female ward while accompanied by a female employee. 5. Learned state counsel has opposed the appeal and has submitted that keeping in view the nature of offence committed by the appellant, sentence awarded by the trial court was adequate. 6. Prosecution story in brief is that the victim was admitted in the Home in the year 1987. Victim had been raped by some employees of the Home. Due to this reason, victim became pregnant. The matter was reported to the police and formal FIR was registered. 7. After completion of investigation and necessary formalities, challan was presented against the appellant and his co-accused. Victim had been raped by some employees of the Home. Due to this reason, victim became pregnant. The matter was reported to the police and formal FIR was registered. 7. After completion of investigation and necessary formalities, challan was presented against the appellant and his co-accused. Charge was framed against the appellant under Section 376(2)(c) I.P.C. 8. Prosecution examined twenty nine witnesses in support of its case. After the close of prosecution evidence, on retrial appellant when examined under Section 313 Code of Criminal Procedure, 1973, prayed that he was innocent and had been falsely involved in this case. Appellant did not examine any witness in his defence. 9. Section 375 and Section 376 I.P.C. as applicable at the relevant time reads as under:- "Section 375:- Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-- (First) -- Against her will. (Secondly) -- Without her consent. (Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) -- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) -- With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) -- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. (Sixthly) -- With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) -- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Section 376:- Punishment for rape.-- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,-- (a) being a police officer commits rape-- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 10. Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation." 10. In the present case, admittedly, appellant was working as a sweeper in the Home. Victim was admitted in the Home. 11. During re-trial, victim was got examined by the Board of Doctors with regard to her mental condition. 12. PW-28 Dr. Yogesh Satija deposed that on 29.12.2015, he along with members of the Board, medically examined the victim aged about forty five years. Victim was a patient of 'mental retardation with psychosis'. The other members of the Board PW-29 Dr. Arvind Barad and PW-27 Dr. Gunjan, have corroborated the statement of PW-28. 13. Thus, the victim was a mentally retarded (with psychosis) woman. Victim was examined during trial as PW-20. A perusal of her statement also reveals that she was not in a position to comprehend and correctly answer most of the questions. 14. PW-13 Dr. Anju Sharma had medically examined the victim on 10.08.1994 and had advised that the victim should undergo sonography. After going through the sonography report, she had given the opinion that the victim was carrying a pregnancy of 22 to 23 weeks. 15. PW-1 Raj Kumari, PW-7 Shyama Sharma, PW-8 Kamla, PW-9 Kanta, PW-10 Rupa Devi, PW-11 Rajma, PW-12 Saroj and PW-16 Shamla, employees of the Home/welfare department, have deposed that the victim had become pregnant. 16. Thus, in the present case, victim who was of unsound mind was staying in the Home where the appellant was working as a sweeper. Since, the victim is of unsound mind, she could not narrate with regard to the fact that she had been raped by the appellant. However, victim had become pregnant while she was staying in the Home. 17. PW-20 Gajendra Tiwari deposed that on 28.11.2016, he had taken the victim and her daughter for DNA (Deoxyribo Nucleic Acid) test to Sawai Man Singh Hospital. The samples of both the mother and daughter were taken and they were then taken back to the Home. The sealed samples were deposited in the malkhana with seals intact. On 06.12.2016, appellant was taken to Sawai Man Singh Hospital for DNA test and his sample was taken. The sealed sample was deposited in the malkhana with sealed intact. 18. The samples of both the mother and daughter were taken and they were then taken back to the Home. The sealed samples were deposited in the malkhana with seals intact. On 06.12.2016, appellant was taken to Sawai Man Singh Hospital for DNA test and his sample was taken. The sealed sample was deposited in the malkhana with sealed intact. 18. Exhibit P-34 is the report of the State Forensic Science Laboratory, Rajasthan, Nehru Nagar, Jaipur with regard to the DNA examination. As per the said report, the DNA test performed on the exhibits provided, it was concluded that the source of Exhibit No. 3 (blood sample of Divya) showed that she was biological daughter of source of DNA profile obtained from Exhibit-1 (blood sample of Laddu Gopal) and No. 2 (blood sample of victim). Thus, from the report of the expert with regard to the DNA examination, it stands established that the appellant was the father of the child delivered by the victim. Thus, the prosecution had been successful in establishing that the appellant while working as a sweeper in the Home had raped the mentally retarded victim admitted in the Home. Hence, the learned trial court rightly ordered the conviction of the appellant under Section 376(2)(c) I.P.C. 19. There is no force in the argument raised by learned counsel for the appellant that the sentence qua imprisonment of the appellant was liable to be reduced from life imprisonment to rigorous imprisonment for ten years. It is a case where a de novo trial had been held against the appellant in terms of the order passed by this court dated 3.1.2007. The trial judge has exercised his judgment and judicial discretion while passing the order of sentence after re-trial. The offence committed by the appellant is grave and serious in nature. Appellant was working as a sweeper where the victim was admitted as a patient being mentally retardation with psychosis. Victim was of unsound mind and was unable to comprehend most of the questions put to her, during trial. Appellant sexually assaulted the victim and as a result, she became pregnant. Being of unsound mind, victim could not even comprehend and report that a criminal offence had been committed against her by the appellant. The offence committed by the appellant came to light when the victim became pregnant. Appellant sexually assaulted the victim and as a result, she became pregnant. Being of unsound mind, victim could not even comprehend and report that a criminal offence had been committed against her by the appellant. The offence committed by the appellant came to light when the victim became pregnant. Victim delivered a child and as per the report of the DNA examination, appellant had fathered the child delivered by the victim. Keeping in view the gravity of the offence committed by the appellant, no ground for reduction of sentence awarded by the trial court qua imprisonment to the appellant is made out. At the time of passing of the initial judgment by the trial court, there was no DNA test report available on record nor the statement of the victim had been recorded, during trial to enable the trial judge who decided the trial at the first instance to appreciate the gravity of the offence committed by the appellant. 20. Hence, the impugned judgment/order of conviction and sentence passed by the trial court are liable to be upheld. No ground for interference by this court is made out. 21. Dismissed.