JUDGMENT Arun Kumar Goel, J,—State has filed this appeal against the judgment dated 27-9-19988 passed by Shri M R Chiudhary, Sessions Judge, Chamba Division at Chamba in sessions trial No, 4 of 1988. By means of impugned judgment, the respondent who was tried under section 376, I. P. C. has been acquitted which has been questioned by the appellant in the present appeal 2 Facts out of which this case has arisen are that on 0-4-1997 at about 3 30 p m , the prosecutrix (PW 7, not examined had gone for bringing water from the water source (Bowli) It may be pointed out here that his prosecutrix is a deaf and dumb person having been deserted by her husband and residing with her brother, Karam Chand (PW 4) For bringing water, she had taken a Batlohi (pitcher) When the prosecutrix was coming on her way back from the Bowli, she was caught hold of by the respondent and in this exercise, her Batlohi was thrown away and the respondent after lifting the prosecutrix from the path towards the Rest House side committed forcible sexual intercourse against hor wish. Further prosecution case against the respondent was that this act was witnessed by Suit. Kaushalaya Devi. Bhabi (brothers wife) of the prosecutrix (PW 2). This PW 2 had come out of her house for throwing saw dust. When she heard some noise of Hurt, Hun, she went a few paces and found the Batlohi lying there and water was coming out of it. This was recognised to be belonging to her by this witness and had been taken by the prosecutrix for fetching water She had gone hardly a few steps ahead, when she found the prosecutrix on the road with her Shalwar being there by her side and the respondent committing the act of sexual intercourse upon the prosecutrix PW 2 made her presence felt at that point of time by clearing her throat. When the respondent saw her, he immediately ran away from the scene of occurrence alongwith his underwear. Proseeutrix had been gagged with her Dupatta, on removal whereof from her mouth, blood came out. Prosecutrix was brought home by PW 2 and on way both of them met Hari Ram (PW 5). When the respondent saw her, he immediately ran away from the scene of occurrence alongwith his underwear. Proseeutrix had been gagged with her Dupatta, on removal whereof from her mouth, blood came out. Prosecutrix was brought home by PW 2 and on way both of them met Hari Ram (PW 5). Since there was none else at home, the incident was narrated to one Srat Simro Devi, who was working in the filed at that point of time. When the husband of PW 2, Kaushalaya Devi came back in the evening at about 7/7 30 pm., the entire incident was narrated by PW 2 to her husband, Karam Chand (PW 4), who also questioned the prosecutrix and she narrated the incident to her brother as narrated by Kaushalaya Devi to her husband. Karam Chand went to the Pradhan of Gram Panchayat, Malan alongwith PW 2 and informed the Pradhan about this incident. The Pradhan after verifying the factual position from the spot, advised Karam Chand to lodge a report at Police Station, Shimla for which purpose the later accompanied by his wife Kaushalaya Devi went to the said Police Station for lodging the report. Since the Incharge of Police Station was not available and one Constable was present there, who asked them to go to Bhatet. At about 6.00 p m „ after having reached village Bhatet, the entire incident was narrated to A S I , Bhim Singh. On 11-4-1987, the Investigating Officer visited the spot and took investigation in hand Thereafter, the prosecutrix was taken to Civil Hospital, Dalhousie for her medical examination where she was examined on 12-41987. The respondent was also examined on the same day Statement of Smt. Kaushalaya Devi (PW 2) was also recorded by the Investigating Officer vide Ext. PB which was sent to Police Station, Chawari for registration of the F I. R. which was recorded vide Ext PC. After completion of the challan, it was filed in the court of Chief Judicial Magistrate, Chamba. Since the case was under section 376, I.PC it was committed to the Sessions Judge, Chamba After the trial court was satisfied that there are prima facie grounds for framing charge against the respondent, he was charged for having committed rape on Smt. Shirnlo Devi to which he pleaded not guilty and claimed trial. 3. Since the case was under section 376, I.PC it was committed to the Sessions Judge, Chamba After the trial court was satisfied that there are prima facie grounds for framing charge against the respondent, he was charged for having committed rape on Smt. Shirnlo Devi to which he pleaded not guilty and claimed trial. 3. In order to sustain its case, the prosecution examined as many as 14 witnesses. Material witnesses in this case are Smt. Kaushalaya Devi (PW 2). Karam Chand (PW 4). Hari Ram (PW 5) besides Dr Madhupa Sood (PW 1), who had examined the prosecutrix after she had been referred by the police to her for such examination. 4. In this case prosecutsix Shimlo Devi was put in the witness box as PW 7, but she could not be examined because she is deaf and dumb, In the order sheet dated 14-6-1988, the learned Sessions Judge passed the following order:— ".. Yesterday, examination of the prosecutrix Smt Shimlo Devi could not be completed as she is deaf and dumb She was discharged. Though the relatives of the prosecutrix Shimlo Devi stats that they understand and interpret the language of Shimlo Devi which she expresses by sounds, gestures and signs, but it will not be appropriate to get assistance of any one of them in interpreting the statement of the prosecufrix. The learned PP will file an application for summoning an appropriate expert to interpret the evidence of the prosecutrix The application be filed within ten days and thereafter summon shall be issued to the witness." 5. It may be pointed out here that the prosecutrix was intended to be examined on 13-6-1988, but the Public Prosecutor in his wisdom decided to give her up and made the following statement :— "I give up PW Simro Devi being unnecessary” Despite this statement of the Public Prosecutor, the trial Court on 14-6-1988 passed the order, relevant extract whereof has been reproduced hereinabove. When the case was taken up on 25-7-1988, the evidence of the prosecution was concluded. Instead of filing the application Public Prosecutor again made the following statement :— "I tender in evidence report of the Chemical examiner Ex. PL, an I report of the Seriologist Ex PM and close the prosecution evidence. I also give up Smt. Shimlo Devi being unable to depose, being deaf and dumb. Instead of filing the application Public Prosecutor again made the following statement :— "I tender in evidence report of the Chemical examiner Ex. PL, an I report of the Seriologist Ex PM and close the prosecution evidence. I also give up Smt. Shimlo Devi being unable to depose, being deaf and dumb. I also give up PW Isa as unnecessary” Despite the specific orders (supra) of the trial Court passed on 14-6-1988, Public Prosecutor for the reasons best known to him, again chose to give up the prosecutrix instead of filing the application. It is not understood as to for what reasons and under what circumstances the Public Prosecutor did not move the application for examination of the prosecutrix with the help of some Expert. In these circumstances, the trial Court was not left with any other option, but to close the evidence of the prosecution. After conclusion of the trial, the trial Court acquitted the respondent, hence this appeal. 6 Shri D. C. Pathik. learned Additional Advocate General in support of this appeal has submitted that the trial Court has fallen into a grave error, while acquitting the respondent. According to him, the evidence of PW 2, Smt. Kaushalaya Devi who is an eye-witness of the whole incident, Karam Chand (PW 4) and Hari Ram (PW 5) is enough for convicting the respondent. It was further submitted that simply because the prosecutrix has not been examined in the court, the effect of other evidence of the prosecution cannot be nullified which is cogent, reliable and trustworthy besides inspiring confidence In support of this appeal, Mr. Pathik referred to the cross-examination directed against the prosecution witnesses as also the explanation given by the respondent under section 313, Cr. P. C. It was further submitted that although the respondent was visiting the house of PW 2 where the prosecutrix was residing, but both i.e. respondent and proseeutnx talking to each other was denied Similar suggestion to PW 2 that the prosecutrix was intimate to the respondent and intercourse was not committed without the consent of the prosecutrix, was also denied. Mr. Pathik also made a reference to the statement of PW 4. A reference has also been made to the answer of the respondent to the questions No. 26 to 28 under section 313, Cr. P. C. which are reproduced herein below :— "Q. 26. Mr. Pathik also made a reference to the statement of PW 4. A reference has also been made to the answer of the respondent to the questions No. 26 to 28 under section 313, Cr. P. C. which are reproduced herein below :— "Q. 26. Why the witnesses have deposed against you ? Ans: My land adjoining to the land of the brother of prosecutrrx and every day there is dispute about the boundary between me and the brother of the prosecutrix and on this account, PW 2 Kaushalaya and PW 4 Karam Chand planted this false case against me PW 6 Sahab Singh while contesting election for Presidentship, I worked against him and for this reason, he inimical towards me. Q 27. Why this case has been made out against you ? Ans : The case has been made against me on similar account as mentioned above in my answer to question No. 26. Q. 28. Have you anything else to say ? Ans : I have a wife and three children in my house and PWs 2 Kaushalaya Devi, PW 4 Karam Chand and PW 6 Sahab Singh planted this false case against me on account of boundary dispute. I am innocent. I have committed no offence." On the other hand, learned Counsel for the respondent has controverted all the submissions made on behalf of the State and has submitted that the acquittal recorded by the trial Court is legal and requires no interference by this Court He further submitted that there is no legal evidence so as to point towards one and only irresistible conclusion leading towards the guilt of the respondent for the offence for which he was charged. Thus, he has prayed for dismissal of the present appeal. 7. No doubt, it is settled proposition of law in criminal jurisprudence that prosecution has to bring home the guilt by producing cogent, reliable and trustworthy evidence in criminal cases and the present case is no exception to that Now, the question is whether the prosecution has been able to bring home the guilt or not. In this behalf when statement of Smt. Kaushalaya Devi (PW 2) is seen, it is evident that she has vividly described the picture as seen by her in a most natural and clear-cut manner. In fact, she has not been dislodged in her coross-examination by the defence. In this behalf when statement of Smt. Kaushalaya Devi (PW 2) is seen, it is evident that she has vividly described the picture as seen by her in a most natural and clear-cut manner. In fact, she has not been dislodged in her coross-examination by the defence. As detailed above, suggestion of the prosecutrix being a consenting party or there being an intimacy between the respondent and prosecutrix has been denied by this witness, although she admits that the respondent had been visiting their house. This shows that the witness is neither over-doing nor she is hesitant in saying the truth. The suggestion regarding visiting of the respondent their house could have been conveniently denied by her if she was not a truthful witness. 8, Similarly, on reaching the home at 7/7.30 p.m f her husband Karam Chand (PW 4) was informed by his wife Kaushalaya Devi (PW 2) regarding the incident. Thereafter, the matter had been reported to the police which swung into action and lodged the challan in the court Return of the prosecutrix alongwith her Bhabi Smt Kaushalaya Devi (PW 2) after the commission of the offence is also established from the statement of PW 2. She had also found the respondent holding the prosecutrix. In this behalf, statement of Sahab Singh (PW 6) is also of some significance, particularly his cross-examination, wherein it has come that Rattan Chand and Sunit Kumar came to this witness, who is Pradhan of the Panchayat, when Rattan Chand had asked to get the matter compromised. Answer given by this witness to court question is material which is reproduced hereinbelow :— "Court Question : Accused had not talked about having committed rape but he did say that whatever has happened, has happened. He admitted his fault and said that I should get the compromise effected " So far non examination of the prosecutrix is concerned, the circumstances have been narrated hereinabove and would be dealt with hereinafter. 9. Learned Counsel for the respondent has submitted that even if the statements of Smt. Kaushalaya Dt\i (PW 2), Karam Chand (PW 4), Haria Ram (PW 5) and Sahib Singh (PW 6) are admitted to be correct, even then the prosecution has miserably failed to bring home the guilt against the respondent. 9. Learned Counsel for the respondent has submitted that even if the statements of Smt. Kaushalaya Dt\i (PW 2), Karam Chand (PW 4), Haria Ram (PW 5) and Sahib Singh (PW 6) are admitted to be correct, even then the prosecution has miserably failed to bring home the guilt against the respondent. He has further submitted that the statement of Smt Kaushalaya Devi (PW 2) is of no significance because she is an interested witness to get the respondent fixed up in the case. He has further submitted that there is no effect of the suggestions given in cross-examination of Smt Kaushalaya Devi (PW 2) regarding either the consent or previous intimacy between the prosecutrix and the respondent. Moreover, in the absence of the statement of the prosecutrix, the entire case of the State falls to the ground and thus, the acquittal recorded by the trial Court calls for no interference Another argument raised by the learned Counsel for the respondent was that according to prosecution, prosecutrix had been dragged but the injuries found ............... by Dr. Madhupa Sood (PW 1) did not indicate any such injury on her person. Further it was urged that Smt Kaushalaya Devi (PW 2) has stated regarding the blood coming out of private parts of the prosecutrix, but there was no blood-soaked clothes of the prosecurrix found and the prosecutrix was opined to be used to sexual intercourse In this context, it may be pointed out here that the prosecutrix is a deaf and dumb lady aged about 38 years. In these circumstances, non-recovery of blood-stained clothes of the prosecutrix would not make any difference. Besides this, Smt. Kaushalaya Devi (PW 2) has admitted that the prosecutrix was under menstrual circle during those days So far injuries found on the person of the prosecutrix are concerned, those were to the following effect :— "1. Three healing scratches on the middle of back covered with scarb. 2, Left to incisors upper loose. No mark of injury on the lips or anywhere on the face referred to dental surgeon, District Hospital, Chamba for expert opinion” 10. This shows that the prosecutrix had some injury marks on her person. So far non-examination of the prosecutnx is concerned, the circumstances have already been explained. 2, Left to incisors upper loose. No mark of injury on the lips or anywhere on the face referred to dental surgeon, District Hospital, Chamba for expert opinion” 10. This shows that the prosecutrix had some injury marks on her person. So far non-examination of the prosecutnx is concerned, the circumstances have already been explained. From the evidence on record, we find that there was no reason much less ground for Smt. Kaushalaya Devi (PW 2) to have falsely roped in the respondent. In this case Nor any such motive has been attributed to her when a reference is made to her cross-examination. Similarly no such suggestion or motive has been attributed against Karam Chand (PW 4) so as to suggest that the respondent had been falsely implicated in this case irony of fate in this case is that firstly the curse of being a deaf and dumb having a grown-up daughter of twenty years of age as also having been deserted by her husband has fallen on the prosecutrix, secondly, her miseries have further been multiplied by the respondent who committed rape upon her against her wish. Moreover, the persons who are entrusted with the conduct of Government cases have become instrumental in insuring that the guilty is not punished despite the specific orders having been passed by the trial Court on 14-6-1988 extracted hereinabove. In no case, on account of non examination of the prosecutrix, the respondent can take any benefit in the face of statement of PW 2, Smt Kaushalaya Devi, who had witnessed the respondent committing sexual intercourse upon the prosecutrix We find no reason to discard the statement of this witness as well as that of PWs 4 to 6. In view of the aforesaid, the cross-examination of the witnesses as well as the explanation given by the respondent in his examination under section 313. Cr P. C. assumes significance. What is explained against PWs 2 and 4 by the respondent was never put to them. In view of the aforesaid, the cross-examination of the witnesses as well as the explanation given by the respondent in his examination under section 313. Cr P. C. assumes significance. What is explained against PWs 2 and 4 by the respondent was never put to them. Similarly, what is attributed to PW 6 was also not put to him in his cross-examination and the defence suggested to PW 2 regarding intimacy as well as consent of the prosecutrix was never the case of the respondent under section 313, Cr, P. C. Now, looking to the cumulative effect of the prosecution evidence as well as explanation given by the respondent, it is clear that not only the prosecution has been able to bring home the guilt against the respondent, but the defence put forth and the explanation furnished by the respondent is palpably false and the trial had fallen into grave error while acquitting the respondent of the offence under section 376, I P.C. 11. In view of the above discussion, we are of the considered view that the present appeal deserves to be allowed and the respondent convicted Now, the question remains as to what punishment be awarded to the respondent. Respondent was 27 years of age at the time of commission of the offence. He did not realise that the prosecutrix is already cursed because of not only being deaf and dumb but also having been deserted by her husband with a daughter of twenty years of age. He took full advantage of the helplessness of the prosecutrix and committed the heinous crime against her. He needs to be dealt with severely and the learned Additional Advocate General has submitted that severe punishment should be inflicted upon him so that it is as eye-opener to the criminals 12 On the other hand, learned Counsel for the respondent has submitted that looking to the incident which took place more than 8-1/2 years ago and the age of the respondent who is a first offender, he may be dealt with leniently and should be given a chance to reform himself. He has further submitted that the respondent is the sole bred-winner and thus, he may be let out on probation instead of being put in the company of hardened criminals. He has further submitted that the respondent is the sole bred-winner and thus, he may be let out on probation instead of being put in the company of hardened criminals. It was further submitted that this benefit needs to be given to the respondent keeping in view the present trend of penology. 13. When the matter is weighed .vis-a-vis the circumstances where-under the respondent had committed the offence against the prosecutrix as well as to the time gap between the date of commission of the offence and the time when this appeal is being disposed of, we are of the opinion that the ends of justice would be met by sentencing the respondent to undergo five years rigorous imprisonment and also to pay a fine of Rs. 5,000 which, if recovered, be paid to the prosecutrix Shimlo Devi. In default of payment of fine, respondent shall further undergo rigorous imprisonment for a period of six months. Bail bonds of the respondent are cancelled and he be taken into custody to undergo the aforesaid sentence. 14. Before concluding we feel that the manner in which the Public Prosecutor entrusted With the conduct of the case needs to be scrutinised appropriately in the fact of the orders passed by the trial Court on 14-6-1988 directing the said Public Prosecutor to take steps for making arrangement for examination of the prosecutrix with the help of an Expert. But in his wisdom, he gave up the prosecutrix as is evident from his statement dated on 25-7-1988 In these circumstances, we are of the view that this matter needs to be enquired into Accordingly, we direct the Director Prosecution, Himachal Pradesh to personally enquire into the circumstances whereunder the Public Prosecutor made statement on 25-7-1988 instead of filing an application as directed by the trial Court and for what reasons, this witness (prosecutrix) was given up. After holding the inquiry, the Director Prosecution shall submit his report to this Court within a period of four months from today. Copy of this judgment be given to the learned Additional Advocate General for immediately making it available to the Director of Prosecution so that he is in a position to comply with the directions of this Court. Directions issued. -