JUDGMENT : SANJEEV KUMAR SHARMA, J. This appeal is directed against the order dated 10.08.2023 passed by the Addl. Sessions Judge, Aizawl Judicial District in S.R No. 111/2022 whereby the accused/appellant was convicted of the offence under Section 376(2)(l) IPC and sentenced to undergo R.I for 10 years and to pay a fine of Rs. 1,000/- only, in default, S.I for 10 days. 2. The case in brief is that on 17.03.2022, an FIR was lodged by Mr. PC Zoliansanga, reporting that his aunt, Mrs. X (the name of victim is withheld in the judgment), who is mentally retarded, had left home on 16.3.2022 around 1:00 pm and returned home at around 11:00 pm and was suspected to be raped by some unknown person. Hence, the instant case was registered and investigated into. 3. In the course of investigation, the I.O recorded the statements of the witnesses, sent the victim as well as the accused for medical examination and also sent certain samples to FSL for examination and DNA test. However, the statement of the victim could not be recorded by the Magistrate under Section 164 CrPC. On completion of the investigation, the I.O also submitted a charge-sheet. The learned trial court framed charge under Section 372(2)(l) IPC against the accused which he denied and the trial commenced. 4. During the trial, prosecution examined seven (7) witnesses, out of nine listed witnesses, who were cross-examined by the defence. The victim was not examined as she was bedridden due to stroke, and her attendance was dispensed with after a commission appointed for her examination was returned with a report that the victim was unable to remember her name and unable to answer any question put to her due to stroke. Accused/appellant was examined under Section 313 Cr.P.C and he adduced no evidence in his defence. 5. The evidence of the case may be summarized:- 6. PW No. 1 is the nephew of the victim and PW No. 2 is his wife while PW No. 4 is the daughter of PWs No. 1 and No. 2. All of them deposed that the victim is mentally disturbed/unstable after having three children and she and her husband were divorced and since then she has been living with them. PW No. 1 is the nephew of the victim and PW No. 2 is his wife while PW No. 4 is the daughter of PWs No. 1 and No. 2. All of them deposed that the victim is mentally disturbed/unstable after having three children and she and her husband were divorced and since then she has been living with them. PW No. 1 and No. 2 know the accused and PW No. 1 stated that the accused used to work as a potter at his aunt’s shop at Dam Veng, Aizawl. 7. PW No. 1, No. 2 and No. 4 deposed that around 1:00 pm on 16.3.2022 their family came to know that the victim was missing from home and she did not come home even at dinner time, and they were worried sick as the victim was mentally unstable/disturbed. PW Nos. 2 & No. 4 and their family members searched for the victim, and they were informed by some neighbors that they saw the victim scolding one alcoholic man named Kawla near their house, and some neighbors also informed them that they saw the victim pushing away Kawla at Thakthing steps, which was about 200 meters from their house. PW No. 1 came home and he was informed about the situation and he then telephoned the Police Station informing about the missing victim and also posted the matter in their family Whatsapp group, Venghnuai whatsapp group etc. The same night, PW No. 1 received a phone call from one female from Venghnual informing him that they saw the victim walking around at Venghnual Sihpui Veng holding a stick and mumbling. PW No. 1 and his brother, P.C Zohmangaiha and his cousin, P.C Sangzuala, proceeded towards Venghnuai and brought home the victim around 11:00 pm. She looked tired and agitated, and her hair was tangled and covered with dirt and dried leaves and her pants were also covered with dirt. PW No. 2 bathed the victim and saw bruise marks on both of victim's breasts, thigh and buttock area and she had worn her pants the wrong way. She complained of pain in her private parts and said that her pants had been removed by the accused. She informed PW No. 1 and other family members about what she found. The next day, an FIR was lodged. She complained of pain in her private parts and said that her pants had been removed by the accused. She informed PW No. 1 and other family members about what she found. The next day, an FIR was lodged. The victim was medically examined and the Police seized victim's (i) underpant (red-black stripe), (ii) polar pants (brown colour) and (iii) her fingernail scrapings from PW No. 1 inside their house in the presence of PW No. 2 and No. 4 as seizure witnesses. 8. During cross-examination, they all stated that the victim can speak and write normally, and she has Disability Certificate issued by Medical Superintendent, Civil Hospital, Aizawl, and that they did not see the accused pushing the victim and the victim never stated that she was raped by the accused, and they did not personally see the accused committing sexual assault upon the victim. 9. PW No. 5, Dr. B. Lalduhawma, deposed to have examined the victim on 17.03.2022 at Civil Hospital, Aizawl under consent at 12:00 noon. His general examination revealed that the alleged victim is post-menopausal woman who had undergone tubectomy, and she had already bathed and changed her clothing at the time of examination, and she is found to be mentally challenged and she was not cooperative for vaginal examination, due to which vaginal swabs could not be taken; and that she sustained multiple bruises on both breast, buttocks and thighs. On external genitalia examination, he found multiple lacerations on the vaginal wall and hymen was not intact. He also deposed that the relatives of the alleged victim testified that the alleged accused is suspected of being immunocompromised due to which he advised the victim to take Post-Exposure Prophylaxis (PEP) medication and to undergo routine testing in the future. He exhibited his medical examination report. 10. During cross-examination, PW-5 stated that he did not refer the victim to psychiatric evaluation. 11. PW No. 6 Dr. He exhibited his medical examination report. 10. During cross-examination, PW-5 stated that he did not refer the victim to psychiatric evaluation. 11. PW No. 6 Dr. Lalrinzuali Chhangte deposed that she examined the accused on 17.3.2022 and she found that he is of sound physical and mental health and he is a known immunocompromised patient currently on ART, and there were seminal stains seen on the underside of his underwear and multiple scratch mark seen on his cheeks (both right and left) which he allegedly claimed to have been made by the victim, his genital organs were fully developed, there were ulcer and abrasion on his glands penis seen all around the circumference of the glands, and there was colorless discharge and smear was taken and sent for detection of spermatozoa. She exhibited her medical examination report. 12. During cross-examination, she denied that the accused did not tell her that he had intercourse with the victim on 16.3.2022 at around 1:30 pm at the outskirt of Saikhamakawn area, and also denied that he did not tell her that he sustained multiple scratch marks on both of his right and left cheek from the victim. 13. PW No.8 Lalchhanzova deposed that he examined Biological Exhibits viz., (1) Exhibit. A- Underwear (red & grey striped) of the victim with suspected seminal stains; (2) Exhibit B - Long polar pant (brown in color) of the victim with suspected seminal stains; (3) Exhibit. C - Finger nail scraping of the victim with suspected blood stains; (4) Exhibit D - Liquid blood sample of the victim, and (5) Exhibit E - Liquid blood sample of the accused. His examination report revealed that traces of semen of human origin were detected from the stains of Exhibit-A, but it was insufficient for DNA profiling. Semen was not detected from the stains of Exhibit-B; and traces of blood of human origin was detected from the stains of Exhibit - C which is a Complete Male Genetic profile and it matched with the DNA profile generated from Exhibit-E, i.e the accused. He concluded that the blood stains from Exhibit-C (Fingernail scraping) of the victim with suspected blood stains were that of the accused, Kawlhmingthanga, i.e Exhibit-E and he exhibited his report. Cross-examination was declined by the defence. 14. He concluded that the blood stains from Exhibit-C (Fingernail scraping) of the victim with suspected blood stains were that of the accused, Kawlhmingthanga, i.e Exhibit-E and he exhibited his report. Cross-examination was declined by the defence. 14. The I.O in the course of her examination as PW-9 described the various steps taken by her in the course of the investigation. 15. The accused was examined under section 313 CrPC and denied the allegations against him and stated that the victim took off her pants and he did not remember any dried leaves being on her hair and the place where he took her was below a farm hut at Khanghu Huan of Saikhamakawn and there were no dried leaves and he told her that he was going to have sex with her and he asked her to take off her clothes, which she did and he had sex with her, and he did all such acts as he was intoxicated with alcohol that day. 16. Upon consideration of the material on record, the learned Trial Court held the accused guilty of the offence as charged and sentenced him accordingly. 17. I have heard Mr. Jordan Rohmingthanga, learned counsel for the accused/appellant and Ms. Linda L Fambawl, learned Addl. Public Prosecutor. 18. Upon perusal of the prosecution evidence, it is admittedly a case of circumstantial evidence as there are no eye-witnesses to the occurrence, and the victim herself could not depose at the trial for medical reasons. The learned trial court observed as follows:- 18. With respect to Point No. 2, i.e. whether or not the accused committed rape upon the victim on 16.3.2022, PW No. 2 is the first person to find bruises and unusual circumstances of the victim as she bathed her after she was brought home late at night and she informed other family members about the same. The victim did not state to any of the prosecution witnesses that she was raped by the accused, and her judicial statement was not recorded due to her inability to give rational answers to questions put to her, and she was also not examined before the court despite commission being issued as she suffered stroke and could not remember her own name or anything at all. The neighbors or those who allegedly saw the accused and the victim are not amongst the prosecution witnesses, however, such relevant facts were proved by other circumstances revealed by prosecution evidence. The FSL examination report of the underwear of the victim by PW No. 8 revealed presence of semen, no matter if it was insufficient for DNA profiling; and the medical examination report of the victim by PW No. 5 revealed that she sustained multiple bruises mark on her left and right breast and multiple lacerations in her vaginal wall which indicated a sexual intercourse with the victim, whether with or without her consent. The medical examination report of the accused by PW No. 6 revealed that the accused had multiple scratch marks on his left and right cheeks which he alleged to have been caused by the victim and seminal stains were seen on his underwear. Fingernail scraping of the victim with suspected blood stains examined by PW No. 8 revealed that traces of human blood were seen and it belongs to the accused. These circumstances are closely knit together leaving no gap in the chain of evidence and it reveal beyond a shadow of doubt that the accused had sexual intercourse with the victim, although there was no one seeing them together on the day of the incident. 19. The circumstances as disclosed by the prosecution evidence as discussed above is also substantiated by the accused in his examination under section 313 Cr.PC where he stated that he took the victim below a farm hut at Khanghuhuan of Saikhamakawn and he told her that he was going to have sex with her and asked her to take off her clothes to which she complied, and he had sex with her. As already discussed in para 17 the victim is mentally disabled and is not in a position to understand the good and bad aspects of sexual assault or its consequences, and her alleged participation as claimed by the accused would also not liberate the accused, as the acts allegedly done by the victim's consent when she is unable to appreciate the nature and consequences of that consent due to unsoundness of mind fall within the 5th Clause of section 375 of the IPC. 19. 19. There appears to be no dispute about the fact that the accused/appellant had sexual intercourse with the victim during cross- examination of the PWs as there is no suggestion to the contrary and the accused/appellant also admitted the same in his Defence Statement. The only question that remains to be determined is whether such intercourse amounted to rape as defined in Section 375 IPC. It is to be noted that the learned trial court relied upon the FSL report which revealed the presence of semen on the underwear of the victim, and the medical examination report of the victim, which revealed that she sustained multiple bruise marks and lacerations on her private parts, indicating sexual intercourse with the victim, whether with or without her consent. The learned trial court also took cognizance of the medical examination report of the accused, revealing that he had multiple scratch marks on his left and right cheeks, which was admittedly caused by the victim, a fact proved by the forensic examination and a semen stain was also seen on his underwear. 20. According to the learned trial court, the aforesaid circumstances were enough to establish the chain of evidence establishing the fact that the accused had sexual intercourse with the victim. However, in order to hold the accused liable for rape under Section 376 IPC, the learned Court opined that since the victim is mentally disabled and was not in a position to understand the nature of the act or its consequences, her consent is of no consequence and would not absolve the accused, as the victim was unable to give valid consent due to unsoundness of mind, which aspect is covered by the 5th Clause of Section 375 IPC. 21. At this stage, it would be apposite to reproduce Section 375 IPC:- “Section 375 IPC – “A man is said to commit “rape” if he (a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with or any other person; … under the circumstances falling under any of the following seven Descriptions:- (First) - Against her will. (Second) - Without her consent … (Fifthly)” - With her consent, when, at the time of giving consent, by reason of unsoundness of mind or intoxication or the administration by him personally or though another of any stupefying or unwholesome substance she is unable to understand the nature and consequences of that to which she gives consent….” Section 376 (2) (1) IPC reads – (2) “Whoever, … (1) Commits rape on a woman suffering from mental or physical disability: or … … shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.” 22. In order to bring the case within the ambit of the 5 Clause of Section 357 IPC above, it would be necessary for the prosecution to establish firstly that the victim was suffering from unsoundness of mind and secondly, that by reason of such unsoundness of mind, she was unable to understand the nature and consequences of that to which she gives consent. 23. With regard to the first aspect, the learned trial court relied upon the depositions of the PW Nos. 1, 2 & 4 who are the family members of the victim and who deposed that the victim became mentally unstable/disturbed after having three children and also upon the evidence of PW-5, who examined the victim and deposed that she was mentally challenged and the learned trial court also relied upon the evidence of the I.O that the judicial statement of the victim could not be recorded due to her inability to answer any question put to her and in this regard, referred to the copy of an order passed by the learned JMFC to this effect which was exhibited by the I.O. 24. Mr. Jordan Rohmingthanga, learned Amicus Curiae appearing for the accused/appellant, has submitted that the prosecution has failed to establish that the victim was suffering from any mental disability by securing the evidence of any expert witness like a Psychiatrist, inasmuch as PW-5, M.O is a Gynecologist who is not competent to certify to the mental condition of the victim. Mr. Jordan Rohmingthanga, learned Amicus Curiae appearing for the accused/appellant, has submitted that the prosecution has failed to establish that the victim was suffering from any mental disability by securing the evidence of any expert witness like a Psychiatrist, inasmuch as PW-5, M.O is a Gynecologist who is not competent to certify to the mental condition of the victim. Further, the so-called Disability Certificate was never produced in evidence, and therefore, the learned trial court fell into error in holding that the victim was suffering from unsoundness of mind at the relevant time. 25. The Exhibit P-16 is a copy of the order passed by the Judicial Magistrate First Class-II, Judicial District, Aizawl in connection with All Women PS Case No. 13/2022 which is reproduced below:- “Dt. 1.04.2022: After interacting with the victim, I came to the conclusion that she is not in a position to give rational answer to the questions to put to her as such her statement is not recorded. Send back case record. Sd/- Josangzeli Tlau, Judicial Magistrate 1st Class, Aizawl Judicial District Court” 26. The Magistrate, who passed the aforesaid order, was not examined as a witness at the trial, and therefore, the defence had no opportunity to cross-examine her regarding the basis of her conclusion, which caused serious prejudice to the defence. Furthermore, the non-production of the purported Disability Certificate, the existence of which is claimed by the family members of the victim is a serious lapse on the part of the investigation, which cannot be readily overlooked, as the said certificate was of utmost importance for the Court to understand the nature of the mental disability allegedly suffered by the victim. This is so, in as much as it is not sufficient for the prosecution to merely prove that the victim was suffering from some unsoundness of mind, but also to establish that because of such unsoundness of mind, she was incapable of giving valid consent as stipulated in the 5th Clause of Section 375 IPC. 27. It was also open for the learned Court to cause a psychiatric evaluation of the victim by a Medical Board to determine the extent of the mental disability of the victim. 27. It was also open for the learned Court to cause a psychiatric evaluation of the victim by a Medical Board to determine the extent of the mental disability of the victim. It was not sufficient for the learned trial court to have relied upon the evidence of the Doctor, PW-5, who was not an expert in the field of mental health and on the order passed by the learned Magistrate vide Exhibit P-16, without providing an opportunity to the defence to examine that witness. Furthermore, the mere statement of the family members of the victim, namely PW Nos. 1, 2 & 4, to the effect that the victim was mentally disturbed, was also not sufficient to come to a finding that the victim suffered from such unsoundness of mind as would prevent her from giving valid consent to sexual intercourse, especially in the light of the evidence of the same PWs, that the victim could speak and write normally and never reported to them that she was raped. Therefore, the finding on the point for determination as to whether the victim was mentally disabled or not, as formulated by the learned trial court, is not sustainable. There is, of course, no finding that such the victim suffered from such unsoundness of mind as would prevent her from understanding the nature and consequences of that to which she gave consent, and therefore, all the ingredients of the 5th Clause of Section 375 IPC have not been established. 28. In the absence of the ingredients of the aforesaid 5 Clause of Section 375 IPC, the prosecution could still establish the offence of rape by establishing that the accused had committed the alleged act against her will or without her consent. Towards this end, the prosecution adduced medical evidence through PW-5, revealing that she had sustained the injuries as described hereinbefore, but the accused/appellant was never confronted with such incriminating evidence during his examination under Section 313 CrPC, nor was he confronted with the evidence of the FSL expert revealing the presence of semen in the underwear of the victim, as well as the evidence of the fingernail scrapings of the victim with suspected blood stains revealing the presence of human blood belonging to the accused. Therefore, the vital circumstance upon which the learned trial court relied upon to bring home the guilt of the accused were never brought before the accused in course of his examination, which is a grave irregularity. 29. The Hon’ble Supreme Court in (i) In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra; (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ), the Court considered the fallout of the omission to put a question to the accused on vital circumstance appearing against him and the Court has held that the appellate court can question the counsel for the accused as regards the circumstance omitted to be put to the accused and held as under:- "...It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C., the omission has not been shown to have caused prejudice to the accused..." 30. A pleader authorised to appear on behalf of the accused does a lot of work for the accused and makes statements on his behalf like in bail petitions and other applications. A pleader authorised to appear on behalf of the accused does a lot of work for the accused and makes statements on his behalf like in bail petitions and other applications. The Supreme Court has held that a proposition that a Pleader authorised to appear on behalf of the accused can do all acts which the accused himself can do, is too wide. When the prosecution evidence is closed, the accused must be questioned for the incriminating evidence against him and his pleader cannot be examined in his place. [Bibhuti Bhusan Das Gupta v. State of W.B.; AIR 1969 SC 381 : 1969 CrLJ 654 : Basavraj R. Patil v. State of Karnataka; AIR 2000 SC 3214 : 2000 CrLJ 4604 : 2000(4) Crimes 79: (2000) 8 SCC 740 ; Usha K. Srinivas; AIR 1993 SC 2090 : 1993 CrLJ 2669 (SC); Keya Mukherjee v. Magma Leasing Ltd.; 2008 CLJ 2597 (2602): AIR 2008 SC 1807 : (2008) 8 SCC 447 ]. 31. In Nar Singh v. State of Haryana; AIR 2015 SC 310 , the Supreme Court laid down:- "...Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. In so far as non- compliance of mandatory provisions of S. 313, it is an error essentially committed by the Trial Court, the same has to be corrected or rectified in the appeal." In the above case the Court observed that:- "The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non- compliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the accused. Merely because of defective questioning under S. 313 it cannot be inferred that any prejudice had been caused to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice..." "...Hence, if all the relevant questions were not put to accused by the trial court and when the accused has shown that prejudice was caused to him, the appellate court is having power to remand the case to examine the accused again under S. 313 and may direct remanding the case again for re- trial of the case from that stage of recording of statement under S. 313 and the same cannot be said to be amounting to filling up lacuna in the prosecution case." 32. In the instant case, the only material on the basis of which a case of forcible rape could potentially be made out has been completely left out of the questionnaire under Section 313 CrPC, and therefore, the serious prejudice caused to the accused/appellant is implicit and self evident. Hence, it is a fit case for remanding the matter back to the learned trial court for the limited purpose furnishing the requisite opportunity to the accused/ appellant to answer or explain the incriminating circumstances appearing in the evidence against him that were left out while recording the defence statement. 33. Consequently, this impugned judgment and sentence is set aside and the case is remanded to the learned trial court for the limited purpose as indicated above, whereafter, the learned trial court shall pronounce judgment afresh, subject to the observations made in this appellate judgment. 34. The appeal stands partly allowed. 35. Send back the Trial Court Record.