JUDGMENT 1. The appellant has been convicted u/s 376 RPC by the 1st. Addl. Sessions Judge, Jammu for having committed the offence of rape and sentenced to 10 years rigorous imprisonment and fine of Rs. 5000/- in default of which he was to suffer simple imprisonment for six months by his order dated 26.8.2000. 2. The charge against the accused is that on August 30, 1993 he ravished Smt. Guddo taking advantage of her being a dumb and deaf who could not protest when there was nobody around to prevent the unfortunate occurrence, it was only on Sept. 1, 1993 that her brother PW Ashok Kumar lodged a written report with SHO Police Station, Akhnoor on the basis of which a case u/s 376 RPC was registered against the appellant. What is stated in the report is that the prosecutrix left home for getting fodder for the cattle. The accused taking advantage of her being alone nabbed her and raped her. In the meanwhile PW Darshan Lal brother of the prosecutrix aged about 11 years reached there and the appellant took to the heels. 3. During the trial, the prosecution examined Ashok Kumar, Darshan Lal, Des Raj, Kewal Krishan, Nand Lal, Makhan Lal, Ambo Devi, Dr. Anita Bari, Sub-Inspector Kartar Singh besides the statement of Mst. Guddo prosecutrix. 4. The trial court accepted the evidence of the prosecutrix which according to it was properly corroborated by the statements of PWs Darshan Lal, Des Raj, Kewal Krishan and Makhan Lal. 5. The contention of Mr. Sawhney learned counsel for the appellant is that the medical evidence has completely ruled out sexual intercourse and therefore order of conviction is not sustainable. He further argued that the prosecutrix being dumb and deaf whose statement was recorded with the assistance of interpreter, it would be unsafe to rely on her evidence because she was declared unfit witness on 6.4.1995. The witness was, however recalled u/s 540 Cr. PC. as is evident from the order of the trial court dated 1.7.1996. Mr. Sanjay Kakkar on the other hand argued that witness having stood the test of cross-examination, her evidence cannot be discarded merely because the trial court had earlier found that she .was unable to understand the questions. The statement of the witness recorded through interpreter has however, revealed that the earlier order of the trial court was erroneous. 6. Mr. Sanjay Kakkar on the other hand argued that witness having stood the test of cross-examination, her evidence cannot be discarded merely because the trial court had earlier found that she .was unable to understand the questions. The statement of the witness recorded through interpreter has however, revealed that the earlier order of the trial court was erroneous. 6. The question whether a witness is reliable or not, depends upon the appreciation of evidence. In assessing and evaluating the evidence of the victim of rape, it is important to consider whether her statement can be accepted. Similarly, in assessing and evaluating the evidence of eye witnesses two important considerations are (i) whether in the circumstances of the case, it was possible for the eye witnesses to be present at the scene or their explanation for the presence at the scene of crime can be accepted and (ii) whether there is anything inherently improbable or unreliable in their evidence. So, how a witness has faired in the cross-examination and what impression has in the context of other facts of the case created to decide his credibility is required to be considered. 7. This takes us to the evidence relied by the trial court to convict the appellant. PW Ashok Kumar is the elder brother of the victim of rape. He is the informant. Although in the FIR lodged by him it is stated his younger brother PW Darshan Lal aged 11 years suddenly reached on spot whereafter the appellant ran away, it was not he (Darshan Lal) who informed him of the occurrence. This is evident from his statement recorded by the trial court. According to this witness when he returned home in the evening, he found his sister Mst. Guddo weeping. On enquiry, she informed him that the accused had ravished her. He then lodged report EXPWAK on 3rd day of the occurrence. The next day he again left for the place where he used to work without reporting the matter to the police. However, according to him there was delay because it was decided that the matter would be sorted out in a Brathri meeting but when the accused appeared before the village Panchayat he denied having committed any offence. This witness does not say that the occurrence was witnessed by his brother also. However, according to him there was delay because it was decided that the matter would be sorted out in a Brathri meeting but when the accused appeared before the village Panchayat he denied having committed any offence. This witness does not say that the occurrence was witnessed by his brother also. So his statement is relevant only to the extent that he lodged the report on being informed of the occurrence by the victim. 8. PW Darshan Lal is real brother of victim of rape. As per the FIR he was only eleven years old. But when examined in the court he gave his age as 18 years. This discrepancy about his age has not been explained by the prosecution. This reference is necessary because PW Makhan Lal another brother of the prosecutrix who also claims to have seen the accused running away from the scene of crimes has also given his age as 18. If the age of Darshan Lal was 11 years, he would be a child witness and before examining him, the court had to satisfy itself that he was a competent witness. His statement is that as soon as he reached the place of occurrence, he saw the accused appellant having intercourse with his sister. When he shouted at the accused, the later ran away. He chased the accused but the later managed to escape. According to him, PW Kewal Krishan also reached the spot at the same time but he did not find PW Des Raj around. Most revealing part of the statement of witness is that PW Ashok Kumar was present at home on the day of occurrence and had not gone out for work as claimed by him (Ashok Kumar). He also denied the presence of PW Des Raj and his brother Makhan Lal. So if the Ashok Kumar was present when he accompanied by the prosecutrix returned home after the occurrence, the matter should have been reported to him by this witness. But this is not the prosecution case. It is also not the prosecution case that PW Makhan Lal informed PW Ashok Kumar about the occurrence. 9. PW Makhan Lal says that he was at home when the occurrence took place. He rushed to the place of occurrence after having some noise. But this is not the prosecution case. It is also not the prosecution case that PW Makhan Lal informed PW Ashok Kumar about the occurrence. 9. PW Makhan Lal says that he was at home when the occurrence took place. He rushed to the place of occurrence after having some noise. On reaching there he found his sister lying naked while the accused was running while closing the zip of his pant. But according to PW Darshan Lal there was none on spot except Kewal Krishan who also reached there the moment he (the witness) reached. So, if PW Makhan Lal has also reached on spot, there is no reason why all the three would not have caught hold of the appellant and thrashed him. So question is whether Darshan Lal is to be believed or Makhan Lal. Further his statement is that the clothes of the prosecutrix were blood stained. The contradictions between his statement and statement of Darshan Lal are too serious to be ignored because according to Darshan Lal, Makhan Lal his brother was not there and he alone took his sister alone to home, but statement of Makhan Lal is diametrically opposite as according to him, Darshan Lal and his mother Ambo Devi were also present and they took Mst Guddo home. However, Makhan Lal is contradicted by his mother Ambo Devi also who says she was informed by Darshan Lal ther her daughter was lying naked in their field and thereafter she went and brought her home. According to her statement even Darshan Lal did not accompany her. Her statement is that she alone went there to bring home her daughter who was lying unconscious. The statement of PW Kewal Krishan is corroborative of what has been stated by PW Darshan Lal, but his statement that he found Mst Guddo bleeding has to be tested with the medical opinion. So far as statement of PW Des Raj is concerned, he only went on spot after hearing some noise and saw the accused running. But according to him, Mst. Guddo was carried home by the boy who was there and not by her mother. PW Kewal Krishan appears to be a roped in because he is closely related to PW Ashok Kumar being brother of his wife. Had he been present on spot his name would have figured in the FIR which is not so. Guddo was carried home by the boy who was there and not by her mother. PW Kewal Krishan appears to be a roped in because he is closely related to PW Ashok Kumar being brother of his wife. Had he been present on spot his name would have figured in the FIR which is not so. Moreover, in his statement recorded u/s 164 Cr. J.C. he claims to have accompanied Darshan Lal which is not the case as stated by Darshan Lal. 10. This takes us to the statement of Mst. Guddo the victim of rape. She was examined by the court on 6.4.1995, but she was unable to understand the questions in the cross-examination, therefore, her statement was closed. Subsequently, on 1.7.1996, the learned trial Judge (Sh. Y.P. Nargotra) directed as under: - "Since the statement of the prosecutrix has not been concluded therefore, unless her statement is concluded the case cannot be justly decided. She being the prime witness and in order to complete her statement she deserves to be recalled u/s 540 Cr. P.C. Learned counsel for the accused in all fairness has conceded. But simple recall of the witness for cross-examination will not be enough because even her relation who acted as interpreter was not able to convey the questions of the counsel for the accused. Therefore, in the peculiar situation I am of the view that the services of some expert in the field should be sought for. It is therefore, ordered that prosecutrix be summoned/ recalled for cross-examination for the next date and the Principal of the school for deaf and dumb be asked to depute some expert to act as interpreter". 11. The order is unexceptionable because in the peculiar circumstances of the case a discretion was rightly exercised not only in recalling the witness, but also seeking the assistance of an interpreter. Section 540 Cr. P.C. empowers the court to recall and re-examine any person already examined if in the opinion of the court his evidence appears essential to the just decision of the case. So the witness was re-examined with the help of Mst. Shashi Khatarpal, PRo News Reader, Doordarshan New Delhi. However, a new twist appears to have been given to the prosecution of the case by Mst. Guddo by first stating that she was raped by three persons including the appellant. So the witness was re-examined with the help of Mst. Shashi Khatarpal, PRo News Reader, Doordarshan New Delhi. However, a new twist appears to have been given to the prosecution of the case by Mst. Guddo by first stating that she was raped by three persons including the appellant. But later she corrected herself by saying that only accused raped her but was emphatic that two others were also accompanying him. It is not the prosecution case that the accused was accompanied by two other persons. But according to her one of the two was supporting the moustaches. The most revealing part of her statement is that nobody had reached on spot at the time of occurrence and none saw the accused going away after the occurrence. It is her emphatic statement that she alone went home and informed her brothers about the occurrence. This statement corroborates the statement of her brother Ashok Kumar who stated that it was she who narrated the incident to him. She was, however, emphatic that the accused succeeded in having intercourse with her despite her resistance. She was also emphatic that none of her brother reached on spot and she returned home all alone. There are some vital questions which according to the interpreter, the witness could have understood and therefore were avoided. These questions were with regard to bleeding from private part or some other parts of the body and blood stains on the clothes, but she confirmed that the accused was accompanied by two other persons and this she told to her brother. According to her the accused is married person and friend of his brother. 12. Smt. Guddo was examined by Doctor Anita Baru on 1.9.1993 and according to her there was no evidence to suggest fresh intercourse. She further stated that her vagina admits only one finger which means that she was not used to sexual intercourse. Although hymen was absent, but this could be because of her age as per radiological age was more than 18 years which could be even 20. So medical opinion is emphatic that there was no evidence of intercourse within 72 hours because no spermatoza was found within 48 hours in her vagina smear. Not only this, doctor Anita Baru further stated that marks of violence were not found on any part of her body including the private parts. So medical opinion is emphatic that there was no evidence of intercourse within 72 hours because no spermatoza was found within 48 hours in her vagina smear. Not only this, doctor Anita Baru further stated that marks of violence were not found on any part of her body including the private parts. This negatives the charge of rape. 13. We are surprised that despite serious contradictions in the evidence of PWs Darshan Lal, Kewal Krishan, Makhan Lal and Mst. Ambo Devi the trial court has come to the following conclusion: - "From the entire prosecution evidence statement of prosecutrix is direct evidence against accused and statement of PW-2 Darshan Lal and PW-4 Kewal is also direct evidence against accused that he was found by these two boys committing act in question and Darshan Lal PW-2 having called names to accused, accused has fled". 14. The learned 1st Additional Sessions Judge in our opinion has not appreciated the evidence properly because if the proecutrix is believed, PWs Darshan Lal and Kewal Krishan were not present on spot as she alone reached home and informed his brothers of the occurrence. But according to P.W. Darshan Lal, he alone took her home. But P.W. Ambo Devi says, she was asked by Darshan Lal to go and bring Mst. Guddo home from the place of occurrence and she alone went there and brought her home. But P.W. Makhan Lal another real brother of the victim has given a different version which creates serious doubt about the prosecuting case. But statement of Mst. Guddo is that she had herself returned home and narrated the facts to her brother is corroborated by the FIR. So if the prosecutrix is believed, the evidence of PWs Darshan Lal, Makhan Lal, Kewal Krishan and her mother Ambo Devi is false and all them stand discredited. But even the prosecutrix stands discredited by the opinion of the doctor. 15. We are, therefore of the opinion that the trial court has neither examined the credibility of the witness nor appreciated the medical evidence in the context of the statement of the prosecutrix. It also failed to notice that while the presence on spot of Kewal Krishan, Makhan Lal brother-in-law and brother of PW Ashok Kumar is improbablished by the FIR and statement of the prosecutrix proves beyond doubt that none of her brothers were present on spot. It also failed to notice that while the presence on spot of Kewal Krishan, Makhan Lal brother-in-law and brother of PW Ashok Kumar is improbablished by the FIR and statement of the prosecutrix proves beyond doubt that none of her brothers were present on spot. The Investigating Police Officer has thus indulged in padding by introducing Makhan Lal, Kewal Krishan and Des Raj whose evidence is destructive of the evidence of Darshan Lal. The credibility of PW Darshan Lal has been destroyed by his mother who stated that he did not bring his sister home but only informed her that she was lying naked at the place of occurrence and she brought her. The evidence of Makhan Lal is a total falsehood. As a trial Judge, it was its duty to have satisfied that the guilt of the accused has been established beyond all reasonable doubts. No doubt, the prosecutrix is dumb and deaf, but that by itself is not sufficient to return a finding of guilt against the accused. This duty has not been properly discharged. 16. However, we hasten to add that the victim was not a consenting party because considering her disability she could be a helpless victim of such an incident. A woman suffering from such disability can be exploited and since she is dumb and deaf, she will not be able to cry, but this will not be taken to be her consent because there is difference between consent and submission as observed in Rao Hernarain Singh Sheoji Singh Vs. The State of Punjab AIR 1958 Punjab 123 which reads: - "7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be consent as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the fact, but after having freely exercised a choice between resistance and assent. Submissions of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Submissions of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to ones will or pleasure. A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being cosented to, it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former". 17. But this will apply only if sexual intercourse is proved. So if the offence is proved, even if Smt. Guddo has offered no resistance, it would not be a case of consent, but unfortunately for the prosecution, the entire evidence bristles with the improbabilities and it is not possible to sift chaff from the grain because there is no grain in it as evidence of the witnesses is destructive of each other and the medical opinion has destroyed the entire prosecution case. 18. However, we should not be construed to lay down that evidence of a dumb witness should be scanned more critically than any other witness. But in a case where the witness is importance because deafness may prevent a rational answer for want of proper understanding of the question. Section 119 of the Evidence Act makes a witness who is unable to speak a competent witness but when a witness is dumb and deaf, it is not the impairment of speech alone but also his hearing disability which has to be taken note while appreciating his evidence. In this case the interpreter has more than once pointed out in the court at the time of her examination that she was unable to understand some questions. In this case the interpreter has more than once pointed out in the court at the time of her examination that she was unable to understand some questions. But since the witness was emphatic that there was none present on spot at the time of occurrence she returned home all alone from the place of occurrence. The evidence of PWs Darshan Lal, Kewal Krishan, Des Raj, Makhan Lal and her mother Ambo Devi has to be completely ignored from consideration. The statement of the prosecutrix cannot be accepted because Dr. Anita has ruled out that any intercourse had taken place within 48 hours because no spermatoza was found and the vagina admitted only one finger. It is for this reason that we are inclined to give benefit of doubt to the appellant because too much of padding by the Investigating Police Officer has created too many doubts in our mind which the prosecution has failed to clear. 19. In the view we have taken this appeal is allowed, the judgment and order impugned are set aside and the appellant acquitted.