JUDGMENT Anoop Chitkara, J. - The present appeal has been filed by convict Kartar Singh @ Ajeet, under Section 374(2) of the Code of Criminal Procedure, assailing the judgment dated Aug 18, 2018/Aug 20, 2018, passed by the Additional Sessions Judge (III), Kangra at Dharamshala, Camp at Baijnath, HP, in Sessions Case No. 02-D/VII/2014, whereby he has been convicted for having committed an offence punishable under Section 376(2)(j) of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for a period of ten years years and pay a fine of INR 20,000/-, and in case of default of payment to fine to further undergo rigorous imprisonment for two months. The period for which, the convict already remained in custody, was also set off by giving him the benefit of Section 428 CrPC. 2. The gist of the facts apposite to arrive at a just conclusion, are as follows: (a) On Aug 1, 2013, the mother of the victim, Nimmo Devi (PW-1) visited Police Station Mcleodgang, District Kangra, HP and informed them that she alongwith her husband and two daughters stay at Deepdhaar and teather cattle. On Jul 27, 2013, she had gone to another village along with her husband to attend the wedding of her niece and had deputed her elder daughter Naino Devi (PW-2) to come to Deepdhaar to stay with the prosecutrix and also graze the cattle. She and her husband returned from the wedding on Jul 29, 2013. On the next day i.e. Jul 30, 2013 when her husband had gone to cut the grass then in his absence her elder daughter Naino Devi (PW-2) told her that on Jul 27, 2013, Ajeet Kumar (appellant herein) had committed bad act with her younger daughter (sister of Naino Devi, PW-2). Naino Devi (PW-2) further explained to her mother that on Jul 27, 2013 at around 10.30 a.m., when she had reached near her hutment at Deepdhaar then she did not find the victim present there. On this, she started searching for the victim and called her but she did not reply. After that she went to search her towards the "goath" (where the animals are kept) and on the way towards the "Goath" when she had walked around 300 to 400 meters, she noticed that Ajeet Kumar had laid down the victim on earth and was committing bad act with her. After that she went to search her towards the "goath" (where the animals are kept) and on the way towards the "Goath" when she had walked around 300 to 400 meters, she noticed that Ajeet Kumar had laid down the victim on earth and was committing bad act with her. She further noticed that the accused was committing bad act with the victim after removing her salwaar and his trousers. The moment he reached closure, he immediately ran away. After this complainant Nimmo Devi (PW-1) who is the mother of the victim, informed her husband about the occurrence. Consequently they contacted the Pradhan of the area namely Soma Devi (PW-15) on which the Pradhan told them to report the matter to the police. Thereafter, on Aug 1, 2013, the matter was reported to the police. The complainant further told the police that the victim had also suffered abrasions and injuries on her face. She further clarified that at the time of the incident the clothes which the victim was wearing had been kept by her at home. She cautioned that although the age of the victim was 23 years but she is a person of low intelligence, illiterate and of shy nature and that she hardly speaks. (b) On this information, the Investigating Officer found a prima facie case under Section 376 and 323 IPC to have been made out and, hence, he registered FIR No. 66 of 2013, dated Aug 01, 2013 (Ext. PW-1/A), at Police Station, Mcleodgang, Distt. Kangra, HP. (c) After that, the police took the victim for her medical examination on that day itself at 3.25 p.m., where Dr. Anupama Kapoor (PW-7) examined the victim vide MLC (Ext. PW-7/B). The Doctor opined that she did not notice any external injury on the victim and there was one injury on the nose which according to the mother of the victim was self inflictory. On examining the privates of the victim the Doctor specifically mentions "hymen not torn". Pregnancy test also resulted into negative. The Doctor collected the pubic hair, vaginal swab and vaginal slides of the victim and handed over the same to the police for chemical examination through Forensic Science Laboratory. Vide report (Ext. PW-18/C) the Regional Forensic Science Laboratory did not find any evidence of blood or semen on any of these articles. Pregnancy test also resulted into negative. The Doctor collected the pubic hair, vaginal swab and vaginal slides of the victim and handed over the same to the police for chemical examination through Forensic Science Laboratory. Vide report (Ext. PW-18/C) the Regional Forensic Science Laboratory did not find any evidence of blood or semen on any of these articles. (c) The police also took the victim to Psychiatric Department, Zonal Hospital, Dharamshala on Aug 2, 2013, from where she was referred to RPGMC Tanda for I.Q. Assessment vide report (Ext. PW-8/A). As pert report (Ext. PW-9/A) issued by Dr. Sukhjeet Singh (PW-9) the victim had a very low I.Q. of 33 and suffered from Mental Retardation (severe). (d) The police arrested the accused on Aug 4, 2013 and also got his medical examination conducted through Dr. Anuradha Chaudhary (PW-6) according to whom the accused was capable of performing sexual intercourse, vide MLC (Ext. PW-6/A). (e) On Nov 1, 2013 the police produced the victim before the Judicial Magistrate, 2nd Class, Dharamshala for recording her statement under Section 164 CrPC. As per the said statement (Ext. PW-17/B), the Magistrate did not find the victim to be capable of understanding the meaning of Oath, as such, she proceeded to ask questions without Oath. In response to her questions, the victim stated like a child that wrong thing had been done to her by Jeet and he caught hold of her from arm and unstring her salwar. 3. The Investigating Officer also procured the birth certificate (Ext. PW-5/A) of the victim according to which she was born on Nov 30, 1988. Therefore, the fact of the victim, above 18 years of age is undisputed. 4. On this evidence, the SHO filed a report under Section 173 CrPC, in the Court of Judicial Magistrate who committed the same to the Sessions Court, Kangra at Dharamshala. In compliance with the provisions of Section 207 CrPC., the Trial Court provided the complete copies of challan (Police report) to the accused/convict. Vide order dated Sep 3, 2014, the trial Court, as per the mandate of Sections 211 and 214 CrPC, framed charges against the accused for the commission of offence under Section 376 IPC. In compliance with the provisions of Section 207 CrPC., the Trial Court provided the complete copies of challan (Police report) to the accused/convict. Vide order dated Sep 3, 2014, the trial Court, as per the mandate of Sections 211 and 214 CrPC, framed charges against the accused for the commission of offence under Section 376 IPC. However, vide subsequent order dated Jul 22, 2017, the Trial Court reframed the charges against the accused and charged him for the commission of offence punishable under Section 376(2)(j) IPC which reads in the following terms:- "That on 27-07-2013 at about 10.30 AM, at place Deepdhar, P.S. Mcleodgang, you committed rape on the proxecutrix, who was incapable of giving consent due to mental retardation and thereby you committed an offence punishable u/s 376(2)(J) IPC and within the cognizance of this Court." The accused, who at the time of the commission of the offence was 24 years of age,, did not plead guilt and claimed trial. 5. After the examination of the prosecution witnesses, in compliance with Section 313 CrPC, the trial Court put the incriminating evidence to the accused, to which he denied. 6. The Court offered the accused to bring any evidence in support of his defence. However, he did not avail of his legal rights. Consequently, the trial Court closed the evidence. The accused also did not file any written submissions as contemplated under Section 314 CrPC. 7. After hearing the arguments, the learned Addl. Sessions Judge (III), Kangra at Dharamshala, HP, accepted the prosecution evidence and convicted the accused for the charged offence and sentenced as aforesaid. Hence the present appeal. 8. We have heard Mr. Vinay Thakur, Advocate, for the appellant/accused and Mr. R.R. Rahi, learned Deputy Advocate General, for the respondent/State. We have also waded through the entire record. 9. After careful reading of the entire evidence, application of law and judicial precedents, our reasoning is as follows:- 10. Smt. Nimmo Devi, mother of the prosecutrix, testified in Court as PW-1 and stated that her elder daughter Naino Devi (PW-2) had told her what she had noticed and after that she informed the Pradhan, whereafter, she went to the police station and registered FIR (Ext. PW-1/ A) against the accused. 11. The only eye witness Naino Devi, sister of the prosecutrix, appeared in Court as PW-2. PW-1/ A) against the accused. 11. The only eye witness Naino Devi, sister of the prosecutrix, appeared in Court as PW-2. She stated on oath that on Jul 27, 2013, her parents had gone from Deepdhaar to Dhanoli to attend a marriage and deputed her to come to Deepdhaar to stay with the prosecutrix and also to graze the cattle. She stated that she reached Deepdhaar at about 10.30 a.m. and when she had reached near her hutment at Deepdhaar then she did not find the victim present there. On this, she started searching for the victim and called her but she did not reply. After that, she went in search of her towards the "goath" (where the animals are kept) and on the way towards the "goath" when she had walked for around 10 minutes, she noticed that Ajeet Kumar had laid down the victim on earth and was committing bad act with her. She further noticed that the accused was committing bad act with the victim after removing her salwaar and his trousers. She further stated that on her asking the accused as to what he was doing with her sister, who was mentally retarded and could not understand the act and consequence, the accused put his clothes and ran away towards his hutment. She further stated that her parents returned home from the wedding after two days of the occurrence but she could not tell about the occurrence on that day as she was ashamed of telling the same in front of her father. She further told that next day when her father had gone to cut the grass then, in his absence, she narrated the incidence to her mother, who in turn told him about the incident. 12. The only difference in the statement of Naino Devi (PW-2) and that of the FIR (Ext. PW-1/A), is that in her statement on oath she stated that she had asked the accused that what was he doing with her sister and on this he ran away. Therefore, only this part that she had questioned the accused was not mentioned in the FIR and because the FIR was registered by her mother (PW-1) and not by this witness (PW-2), as such, the possibility of her forgetting this part cannot be ruled out. 13. Therefore, only this part that she had questioned the accused was not mentioned in the FIR and because the FIR was registered by her mother (PW-1) and not by this witness (PW-2), as such, the possibility of her forgetting this part cannot be ruled out. 13. It is pertinent to mention here that in cross examination of both Nimmo Devi (P-1) and Naino Devi (PW-2) the accused did not take the plea of false implication on some reasons or some enmity. It is a case where the accused relied upon the failure of the prosecution, instead of discharging the burden which had shifted upon him once the eye witness had testified before the Court. 14. Even if the defence counsel did not cross examine the complainant (PW-1) and her daughter (PW-2), still the testimony of Naino Devi (PW-2) explicitly states that she had seen the accused Ajeet lying on her sister (prosecutrix) and at that time he was not wearing his trousers and her sister was not wearing her salwaar. She further clarified that when she reached the spot they noticed each other and on this she asked the accused that what he was doing with his sister on which he put on his clothes and belt and ran away. Naino Devi (PW-2) specifically stated that she made her sister wear salwaar which stood removed. 15. This clinching evidence proves the presence of the accused with the victim, who had the Intelligence Quotient (I.Q.) of just 33 and suffered from mental retardation (severe). In view of this the absence of injuries on her body becomes meaningless because resistance would not occur to her, which would happen as a reflex action when force is applied. But finding her alone accused would be caressing her to which she would understand as an act of pure love and not lust. Consequently, there was no question of her resistance. 16. The crucial question which arises for consideration is that whether the accused was able to penetrate, even slightly, so that the offence falls within the definition of Section 375 IPC which stood amended prior to the date of the incident. The Doctor (PW-7) who examined the victim did not find any injury over her privates. She specifically noticed that her hymen was intact and swabs collected from her privates and clothes did not find any traces of semen by the Forensic Science Laboratory. The Doctor (PW-7) who examined the victim did not find any injury over her privates. She specifically noticed that her hymen was intact and swabs collected from her privates and clothes did not find any traces of semen by the Forensic Science Laboratory. Therefore, there is no scientific evidence to prove that the act had resulted into penetration or ejaculation. In fact, the scientific evidence did not prove coitus at all. 17. It is significant to mention that when Naino Devi (PW-2) noticed the accused lying over the victim she did not explain any further. Even otherwise when she would have noticed the accused then the accused was in prostrate position because the victim was in supine position so PW-2 must have noticed the accused from back and not front position. Since the victim was a severe mentally challenged person, as such, only evidence to make out whether there was any penetration or not would be scientific evidence. Possibility cannot be ruled out that the moment the accused started to lay over the victim, at that very moment PW-2 arrived at the spot. Undoubtedly, timely arrival of PW-2 saved the victim from the accused from certain sexual assault. On one hand the trauma faced by the victim was extreme but simultaneously it was her good fortune that her sister reached there well in time. In case she had not reached there then there was nothing to stop the accused from committing coitus. Be that as it may, mere assumption will not make it a case of rape, but a case of attemptive rape where it is punishable with the aid of Section 511 IPC. The evidence is sufficient to prove that attempt to commit rape was made. This being the position, commission of the offence under Section 376(2)(j) is required to be altered to an offence under Section 376(2)(j) read with Section 511 IPC. 18. For the foregoing reasons, the appeal succeeds in part and accordingly it is partly allowed and the conviction and sentence passed by the trial Court is set aside and is altered to conviction under Section 376(2)(j) read with Section 511 IPC and the appellant/accused is sentenced to five years, to be counted from the date of arrest and set off u/s 428 CrPC. Registry is directed to prepare fresh warrants accordingly. Registrar (Judicial) to ensure compliance. 19. Registry is directed to prepare fresh warrants accordingly. Registrar (Judicial) to ensure compliance. 19. Records of the Court below be immediately sent back. 20. The appeal stands partly allowed in the terms mentioned above. All pending applications, if any, are also closed.