JUDGMENT : K. V. Jayakumar, J. This Criminal Appeal is preferred challenging the judgment of the learned Additional Sessions Judge-I, Kottayam in S.C. No.36 of 2014. The offences alleged against the appellant/accused are under Section 376(1) of the Indian Penal Code . 2. By the impugned judgment dated 10.12.2019, the learned Additional Sessions Judge convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under Section 376(1) IPC, with a default clause. Prosecution case 3. The prosecution case in brief is that, on 02.09.2012 while the victim, a 17-year-old mentally retarded girl, was proceeding to attend her catechism class in Karamala Church, the accused, who is the neighbour of the victim, approached her and told her that he would drop her in the Church. He, thereafter, took her in his autorickshaw bearing registration No. KL-35 A-5042. When they reached an uninhabited area near a rubber estate, he parked the vehicle on the side of the road and, after putting down the side curtain of the autorickshaw, committed rape on the victim in the rear seat. Later, on 09.09.2012, when the victim was going to the Church, he approached the victim and again took her in his autorickshaw and repeated the sexual acts. 4. When the teachers of the victim found some behavioural changes in the child, she was questioned by them. At that time, the victim told them that she was afraid to remain alone at the bus stop and that the accused had committed rape on her. The teachers informed the matter to the parents of the victim. Registration of Crime and Investigation: 5. On 01.10.2012 at about 11.30 a.m., PW1, the mother of the victim, lodged Ext.P1 FIS before the SI of Police, Ramapuram Police Station. On the basis of Ext.P1 FIS, PW15 (Mathew T. M.) registered Ext.P11 FIR. Thereafter, PW16 (Augustine Mathew), the Circle Inspector of Police, took up the investigation. He visited the place of occurrence and prepared Ext.P4 seizure mahazar. As per Ext.P3 seizure mahazar, he seized the dress worn by the survivor. 6. PW16(Augustine Mathew) arrested the accused on 04.10.2012 after preparing Ext.P12 arrest memo. He also seized the autorickshaw of the accused, wherein the alleged crime was committed as per Ext.P6 seizure mahazar. After completing the investigation, PW16 laid the charge sheet before the jurisdictional magistrate. As per Ext.P3 seizure mahazar, he seized the dress worn by the survivor. 6. PW16(Augustine Mathew) arrested the accused on 04.10.2012 after preparing Ext.P12 arrest memo. He also seized the autorickshaw of the accused, wherein the alleged crime was committed as per Ext.P6 seizure mahazar. After completing the investigation, PW16 laid the charge sheet before the jurisdictional magistrate. The proceedings before the trial court 7. After completing the preliminary steps, the case was committed to the Principal District and Sessions Court, Kottayam. The Court of Sessions had made over the case to the Additional Sessions Court-I, Kottayam, for trial and disposal. The learned Additional Sessions Judge, after hearing both sides, framed charge against the accused. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried. 8. During the course of the trial, PWs. 1 to 17 were examined by the prosecution, and Exts.P1 to P15 were marked. MO1 series and MO2 series were identified and marked. After the close of the prosecution evidence, the accused was examined under Section 313(1)(b) of the Code of Criminal Procedure. He denied the incriminating circumstances put to him and maintained the plea of innocence. No defence evidence was adduced. After a full-fledged trial, the learned Additional Sessions Judge convicted and sentenced the accused for the offence punishable under Section 376(1) IPC, as aforesaid. Submissions of the learned counsel for the appellant 9. The learned counsel for the appellant, Sri.C. S. Ajayan, submitted that the impugned judgment is legally unsustainable. The appellant is convicted without properly evaluating the evidence on record in its correct perspective. 10. The learned counsel further submitted that the evidence of the survivor is not reliable and credible. The survivor was tutored by her teachers at the time of recording his previous statement and also at the time of tendering evidence. The victim is suffering from psychosis and is a person with mental developmental disability. The evidence of the survivor is contradictory and inconsistent in the medical evidence. 11. He further pointed out that the material witnesses to whom the survivor has allegedly made confession were not examined.The extra judicial confession is not properly made by the prosecution. The appellant is innocent, and he has not committed any offence as alleged by the prosecution. The appellant is falsely implicated in this case due to animosity in connection with a financial transaction. The appellant is innocent, and he has not committed any offence as alleged by the prosecution. The appellant is falsely implicated in this case due to animosity in connection with a financial transaction. The Submissions of the learned Public Prosecutor: 12. Sri. Neema T.V., the learned Public Prosecutor, submitted that the prosecution has succeeded in proving the charge against the appellant/accused beyond a reasonable doubt. The learned Public Prosecutor submitted that the version of PW2 (victim) is reliable, credible, and trustworthy. The learned Public Prosecutor further submitted that, if the version of the prosecutrix inspires the confidence of the Court, it can form the sole basis for conviction. The learned Sessions Judge properly appreciated the evidence on record and arrived at a correct conclusion, and no interference whatsoever is warranted in this matter. Evidence let in by the prosecution 13. PW1 is the mother of the victim. She lodged Ext.P1, FIS before the Ramapuram Police Station. She deposed that at the time of the incident, her daughter was aged 17 years. She further stated that she came to know about the incident from the teachers of Sinai Residential School, where the victim was studying. Sinai Residential School is a special school for mentally retarded children. She added that the accused is her neighbour and the incident occurred on two Sundays in the month of September 2012. 14. PW1 would further say that she came to know about the sexual assault from CW4 Shiny teacher. PW4 Beena teacher, told her that one Balan (the accused) sexually abused the victim in his autorickshaw. The said Balan is her neighbour. She identified the accused in the dock and said that the accused abused the victim, when she was proceeding to the Church in his autorickshaw. She lodged Ext.P1, FIS before the police. 15. In cross-examination, PW1 denied the suggestion that her husband had never abused the accused ( Balan) after consuming alcohol. She further denied the suggestion that there was a scuffle between the accused and her husband over this issue. She stated that one Peethambaran and one Gopi are residing near the place of occurrence. The victim divulged the incident to the teachers after two weeks of the incident. She further denied the suggestion that there was a scuffle between the accused and her husband over this issue. She stated that one Peethambaran and one Gopi are residing near the place of occurrence. The victim divulged the incident to the teachers after two weeks of the incident. She also denied the suggestion that there was a quarrel between her husband and the accused in connection with a money transaction, and due to that animosity, a false case was foisted against the appellant. 16. PW2 is the victim of this case. The learned Sessions Judge has conducted a voir dire test before proceeding to record her deposition to understand whether she is capable of understanding the questions put to her and to make rational answers. She deposed that while she was proceeding to Karamala Church to attend catechism class, the accused took her in his autorickshaw. She stated that the name of the accused is Balan. Thereafter, he removed her dress and inserted his finger into her vagina. At that time, she asked the accused whether he was attempting to kill her. She further stated that the accused penetrated his sexual organ into her private part. PW2 further stated that the incident occurred on two consecutive Sundays in the month of September 2012. According to her, one Baby (PW5) had seen the incident. PW5 (Baby) asked her why she had entered the autorikshaw of the accused. 17. PW2 further stated that she has not divulged the incident to anyone for some days. Thereafter, she spoke about the incident to two of her teachers, namely, Shiny and Beena. She identified the dress worn by her at the time of the incident as MO1 series and has also identified the shirt and dhoti worn by the accused as MO2 series. 18. On being cross-examined, she stated that her teachers came to her house in the morning. They were carrying some papers with them. Since she could not read, the teachers read the papers. She further stated that the teachers gave her instructions about the incident in which Balan took her in his autorickshaw. 19. She further stated that she got instructions from the teachers as to what she has to depose before the court. The teachers told her that when the dress is shown to her in the Court, she has to state that the dress was that of Balan. 19. She further stated that she got instructions from the teachers as to what she has to depose before the court. The teachers told her that when the dress is shown to her in the Court, she has to state that the dress was that of Balan. She would further say that the Public Prosecutor and the teachers taught her to depose that Balan inserted her penis into her vagina. She would further assert that three teachers came to her house on the previous day and they had lunch in her house. They tutored her from morning till evening with regard to the matters to be spoken in the Court. She would further say that she does not know anything more than what the teachers taught her. She does not know her date of birth nor the name of her grandfather. She further asserted that her teachers stated the matter at the police station. 20. PW3 (Radhamani) is the Principal of the Sinai Residential School. She deposed that PW2, the victim, was a student of her school. She came to know about the incident from PW4 (Beena) and CW4 (Shiny). According to her, when the school bus reached the bus stop to pick up PW2, she was not there in the bus stop. A few minutes later, she came in a hurry and boarded the bus. The teacher who was present inside the bus told about this, and she enquired about the matter to the victim. At that time, the victim stated that she was afraid to stand at the bus stop, and thereafter, she divulged the incident to the teachers. She told the other two teachers that the accused (Balan) took her in his autorickshaw while she was proceeding to the catechism class, and when the auto rickshaw reached an abandoned place, the accused sexually abused her. 21. She, along with two other teachers, proceeded to the auto stand in search of the accused. At that time, the auto was not there. After some time, they boarded the autorikshaw. When they reached an abandoned place, they enquired about the matter with the accused. Initially, he denied the incident. But, later, he made a confession and promised them that he would not repeat the incident. She further stated that she had informed the parents about the incident. She identified the accused. 22. After some time, they boarded the autorikshaw. When they reached an abandoned place, they enquired about the matter with the accused. Initially, he denied the incident. But, later, he made a confession and promised them that he would not repeat the incident. She further stated that she had informed the parents about the incident. She identified the accused. 22. During cross-examination, she stated the victim may give rational answers to the questions put to her occasionally. In reply to a query put by the Court, PW3 stated that the victim has 60% mental retardation. Her mental age is 10 years during the relevant period. The records showing her mental condition are kept in the school. 23. PW4 (Beena) is another teacher of the Sinai Residential School. She stated that the incident occurred in September 2012. She also gave a similar version to that of PW3. 24. PW5 (Baby) is the driver of the school bus. He deposed that the accused and the victim are known to him. The girl is a mentally retarded person. In the year 2012, while he was passing through Poovakulam-Thekkumala road, he saw the autorickshaw of the accused (Balan) on the side of the road. He stopped the bus, and when he reached near the accused, the accused alighted from the autorickshaw and told him that the auto was not in working condition. While so, he had seen the victim sitting inside the autorickshaw. He asked the victim to return to her home. One side of the autorickshaw was covered and on the other side, it was open. 25. PW6 and 7 are the attestors to Ext.P2 scene mahazar and Ext.P3 seizure mahazar through which the dresses worn by the victim were seized. PW 8 and PW 10 are the attestors to Exts.P4 and P6 seizure mahazars, respectively. PW8 is the brother of the accused. Though he admitted his signature in Ext.P4, he did not support the prosecution. 26. PW9 (Dr. Leena) would say that while she was working as Junior Consultant at General Hospital, Pala, she had examined PW2 (victim) on 01.10.2012 and issued Ext.P5 certificate. She has not noted any external injury on the body of the victim. She would further state that the hymen was elastic and the vagina admits one finger loose. She collected vaginal swab, smear and pubic hair and sent it for chemical analysis. She has not noted any external injury on the body of the victim. She would further state that the hymen was elastic and the vagina admits one finger loose. She collected vaginal swab, smear and pubic hair and sent it for chemical analysis. She would state that PW2 was mentally retarded and was studying in a special school. 27. She further stated that the mother of the victim stated to her that the victim was subjected to sexual assault by one Balan in an autorickshaw in the first week of September. She opined that there is a chance of vaginal penetration. 28. PW11 (Lakshmanan S.) was the Secretary of Aikaranadu Panchayat. He issued Ext.P7 birth certificate of the victim. PW12 (Gopakumar A. N.) is the Village Officer who prepared Ext.P8 scene plan. 29. PW13 (Dr. Preeja S.) deposed that while she was working as the Chief Medical Officer, Pala, she examined the accused on 04.10.2012 and issued Ext.P9 potency certificate. She opined that there was nothing to suggest that he was incapable of performing a sexual act. 30. PW14 (Dr. Sany Varghese) would state that while she was working at General Hospital Kottayam, he examined PW2 on 08.12.2012. 31. PW17 (Dr. Sarojiniamma C.S.) testified that she examined the victim on 13.11.2010 and issued Ext.P15 medical certificate. She was a member of a Medical Board. The other members of the Board are Dr.Rafik Ansar, Psychiatrist and Dr.Elsamma Joseph, the Ophthalmologist. On examination, the Board found that the patient is suffering from moderate mental retardation with psychosis. She had 60% disability. During cross-examination, she stated that the patient was violent at the time of examination. Defence Version 32. The version of the defence is that the accused is falsely implicated in this case due to the animosity in connection with a financial transaction between the father of the victim and the accused. He has not committed the alleged acts of sexual assault. Judicial Evaluation: 33. The first submission by the learned counsel for the appellant is that the conviction cannot be sustained on the solitary evidence of the prosecutrix/ Victim of this case, since her evidence is unsupported by medical evidence. 34 At this juncture, it may be appropriate to refer to the law laid down by the Apex Court in a case of conflicting medical evidence and the ocular evidence. 35. 34 At this juncture, it may be appropriate to refer to the law laid down by the Apex Court in a case of conflicting medical evidence and the ocular evidence. 35. The Hon’ble Apex Court observed in Sadashiv Ramrao Hadbe v. State of Maharashtra and Another , [ 2006(10) SCC 92 ] as under: “It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.” 36. in Radhakrishna Nagesh v. State of A.P. , [2012 KHC 4752] the hon’ble Apex Court held as follows. “19. In any case, to establish a conflict between the medical and the ocular evidence, the law is no more res integra and stands squarely answered by the recent judgment of this Court in the case of Dayal Singh and Others v State of Uttaranchal, 2012 (7) SCALE 165 . "29. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, 2004 Cri.LJ 28, the Court, while dealing with discrepancies between ocular and medical evidence, held, "It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out." 30. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court. {Plz. See Madan Gopal Kakad v. Naval Dubey and Another, 1992 (2) SCR 921 : 1992 (3) SCC 204 ." 37. We have carefully evaluated the evidence of the victim girl and that of PW9, Dr.Leena, in the light of the ratio decidendi culled out from the aforementioned judgments of the Apex Court. PW1 would categorically say that the accused/appellant sexually abused her by inserting the sexual organ into her vagina. But PW9, Dr. Leena, who examined the victim, opined that the hymen of the victim was elastic and the vagina admits one finger loose. She has not noted any external injuries. She would further opine that there was no evidence of past or present vaginal penetration. Therefore, we are of the considered opinion that the evidence of PW1 is totally inconsistent with the medical evidence, and as such, cannot form a valid basis for the conviction of the appellant. 38. She has not noted any external injuries. She would further opine that there was no evidence of past or present vaginal penetration. Therefore, we are of the considered opinion that the evidence of PW1 is totally inconsistent with the medical evidence, and as such, cannot form a valid basis for the conviction of the appellant. 38. The second submission of the learned counsel for the appellant is that the evidence of the survivor is unworthy of credit since her version is a tutored version. He would submit that the evidence of the child witness is to be accepted with due care and caution because he/she is vulnerable to tutoring. At this juncture, it is apposite to refer to the law laid down by the Apex Court on this point. 39. In Pradeep v. State of Haryana , [2023 KHC 6672] , the Apex Court held that a child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The court must apply its mind to the question whether there is a possibility of the child witness being tutored. The Apex Court in Pradeep’ s case (supra) observed as under: “It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.” 40. The Apex Court further observed in Panchhi and Others v. State of U.P. , [ 1998(7) SCC 177 ] that the evidence of a child witness must be evaluated more carefully and with greater circumspection. The Apex Court held that, ‘the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The Apex Court held that, ‘the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring.’ 41. The Apex Court in Rai Sandeep v. State (NCT of Delhi), (2012)8 SCC 21 had occasion to explain that under what circumstances a witness be categorized as a sterling witness. The Apex Court in Rai Sandeep (supra) held as under: “In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross -examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co - relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. Such a version should have co - relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 42. In the instant case, PW2, the victim, during cross-examination categorically admitted that the teachers came to her house on the previous day of her examination and taught her what she should depose before the Court. The Public Prosecutor has also given instructions about the matter to be deposed in Court. In cross-examination, she further admitted that the teachers of Sinai Residential School came to her house and spent the whole day giving instructions to her as to how she should give evidence. She further stated that it is the teacher who gave a statement before the police. 43. On going through the evidence of PW1, it is crystal clear that she was tutored by the teachers, and therefore, much weight need not be given to the evidence of the victim. 44. The Learned counsel for the appellant further pointed out that the victim herein, is suffering from mental retardation and also suffering from psychosis. 45. 43. On going through the evidence of PW1, it is crystal clear that she was tutored by the teachers, and therefore, much weight need not be given to the evidence of the victim. 44. The Learned counsel for the appellant further pointed out that the victim herein, is suffering from mental retardation and also suffering from psychosis. 45. Before proceeding, it would be apposite to extract Section 118 of the Indian Evidence Act , which states who are the witnesses competent to testify in a Court of law. Section 118 of the Indian Evidence Act reads as under: 118. Who may testify- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. -- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. 46. Section 118 clearly states that a person is competent to testify if he is able to understand the questions put to him and to give rational answers thereof. In other words, a person is not competent to testify in a court of law if he is unable to give rational answers to the questions due to tender age, extreme old age, disease of body or mind, or any other cause. The explanation to the said Section provides that a lunatic is a competent witness if he is able to understand the questions put to him and to give rational answers to them. 47. PW1, the mother of the victim and PW3 Radhamani teacher, gave evidence that the victim is mentally retarded and that she is studying in a special school. PW19, Dr. Sarojiniamma, who was a member of the Medical Board and proved Ext.P15 certificate would state that the victim is suffering from moderate mental retardation with psychosis. According to her, she had a mental disability of 60%. Psychosis means: ‘a mental health condition characterized by a loss of contact with reality. Individuals with psychosis may experience hallucinations (seeing or hearing things that are not real), delusions (false beliefs), disorganized thinking, and impaired insight. According to her, she had a mental disability of 60%. Psychosis means: ‘a mental health condition characterized by a loss of contact with reality. Individuals with psychosis may experience hallucinations (seeing or hearing things that are not real), delusions (false beliefs), disorganized thinking, and impaired insight. It can occur in schizophrenia, bipolar disorder, severe depression, or due to medical conditions or substance use. Psychosis requires medical evaluation and treatment, often involving antipsychotic medications and psychotherapy’. 48. Considering the fact that the victim herein, is a mentally retarded person and also a psychosis patient and admittedly, she was tutored by her teachers, the evidence adduced by the victim cannot form a basis for fastening penal liability for the accused/appellant in our view. 49. As per the explanation to Section 118 of the Indian Evidence Act , a lunatic is a competent witness to testify if he is able to understand the questions put to him and to give rational answers. In the instant case, the victim is suffering from mental retardation and psychosis. 50. The Apex Court, in a catena of decisions referred above, made it clear that when a child is susceptible to tutoring, such evidence should be acted upon with extreme care and caution. In the case on hand, it has come out in evidence that even though the victim was aged 17 years, her intellectual capacity was that of a child aged 10 years. She is a mentally retarded person and also suffering from the mental illness of psychosis. The evidence given by a mentally challenged/mentally retarded victim in a case of sexual assault must be acted upon by the Court with great care and caution. In such circumstances, the Court should look for corroboration of the victim’s evidence from other independent evidence. This is an exception to the normal rule that the evidence of the victim in a case of rape or sexual assault can form the sole basis for conviction without any corroboration. 51. Yet another argument advanced by the counsel for the appellant is that even though vaginal swab and smear were collected by Dr.Leena, those samples were not sent for chemical analysis to ascertain whether they contain Human Spermatozoa. The absence of scientific evidence to prove the alleged penetrative sexual assault also poses great prejudice to the appellant, in our view. 52. Yet another argument advanced by the counsel for the appellant is that even though vaginal swab and smear were collected by Dr.Leena, those samples were not sent for chemical analysis to ascertain whether they contain Human Spermatozoa. The absence of scientific evidence to prove the alleged penetrative sexual assault also poses great prejudice to the appellant, in our view. 52. The learned counsel has also pointed out that the material witness (CW4), to whom the accused disclosed about the alleged penetration was not examined by the prosecution. The non-examination of the material witnesses was not explained by the prosecution. 53. It is pertinent to note that even though prosecution alleges that the accused made the confession to the school teachers about the incident, no evidence was adduced to prove this aspect. 54. The upshot of the above discussion is that the prosecution has failed to allege and prove the charge against the appellant beyond reasonable doubt. This is a case wherein a mentally retarded person who also has the mental illness of psychosis was tutored by the teachers as to the manner in which she should give evidence in the court. The trial court has found the accused guilty, convicted and sentenced him, without properly evaluating the evidence on record and overlooking various illegalities and infirmities. Therefore, we are of the considered opinion that the impugned judgment of the learned Additional Sessions Judge is liable to be set aside and the accused is entitled for an acquittal. In the result, i. Criminal Appeal No.34/2020 is allowed. ii. The impugned judgment of the learned Additional Sessions Judge-I, Kottayam in S.C. No.36 of 2014 is set aside. iii. The appellant/accused is acquitted and he is set at liberty if his continued incarceration is not required in any case. iv. The bail bond, if any, executed by the accused stands cancelled. v. Fine, if any, paid by him shall be refunded.