JUDGMENT P.S. Rana, J. 1. Present appeal filed against the judgment passed by the learned Additional Sessions Judge (II), Kangra at Dharamshala in Sessions Case No. 1-N/VII/2006-05 titled State vs. Khushi Ram decided on 30.8.2008. 2. Brief facts of the case as alleged by the prosecution are that on dated 18.1.2004 complainant Jugal Kishore along with his wife prosecutrix and Pradhan Anil Kumar @ Pappu came in the Police Post Rahen and recorded criminal complaint. It is alleged in the complaint that the complainant is resident of Village Padher and is an agriculturist by profession and also used to perform religious functions. It is alleged by the complainant that about 9/10 years ago he was married with the prosecutrix. It is further alleged by the complainant that prosecutrix is disabled lady from her childhood. It is further alleged by the complainant that two children one son and one daughter were born from the loins of the complainant and from the loins of the prosecutrix. It is further alleged by the complainant that on dated 17.01.2004 he went to village Salana for performing religious function at about 2 p.m. noon. It is further alleged by the complainant that on dated 18.01.2004 at about 9.30 a.m. when he reached in his residential house then his mother namely Smt. Savitri Devi informed him that when she was not present in her house then at about 4 P.M. accused resident of Samkad Tehsil Fatehpur came and took the prosecutrix inside the room and forcibly committed rape upon the prosecutrix. It is further alleged by the complainant that incident of rape was witnessed by son of the prosecutrix namely Nikhil with his own eyes from the holes of doors from outside which was bolted from inside at the time of commission of rape. It is further alleged by the complainant that thereafter complainant inquired about the matter from his wife-prosecutrix by way of signs and she also confirmed the incident of forcible rape upon her. It is further alleged by the complainant that his son Nikhil eye witness of the incident also informed that accused also threatened not to disclose the incident to anybody otherwise he would kill the son of the prosecutrix. It is further alleged by the complainant that thereafter he immediately informed the Pradhan Anil Kumar about the incident of rape upon his wife who is disabled lady. It is further alleged by the complainant that thereafter he immediately informed the Pradhan Anil Kumar about the incident of rape upon his wife who is disabled lady. It is further alleged by the complainant that accused took the musical instrument from him and he came in his residential house in his absence to return the musical instrument and committed forcible rape upon the prosecutrix. Cancellation challan was filed by the Investigating Agency but learned Committal Judicial Magistrate did not accept the cancellation report and committed the criminal case for regular trial in accordance with law. Learned Addl. Sessions Judge (II), Kangra at Dharamshala framed charge against the accused on dated 06.12.2007 under Sections 376 and 452 IPC. The accused did not plead guilty and claimed trial. 3. Prosecution examined following oral witnesses:– S. No. Name of Witnesses 1. Jugal Kishore PW-1 2. Master Nikhil aged nine years PW-2 4. Prosecution also adduced following documentary evidence:– S. No. Name of Exhibits Ext. EW-1/A Application for medical examination of prosecutrix Ext. CW-1/A Report of medical examination of prosecutrix submitted by ASI Ext. CW-1/B Opinion of Medial Expert Zonal Hospital Dharamshala qua speech wherein it is mentioned that prosecutrix can express selected wordings Ext. CW-2/A Opinion of Audiologist wherein disability in right ear mentioned 45% and disability in left ear mentioned 80% Ext. PW-1/A Recovery memo of Shawl Ext. PW-1/B Recovery memo of disability certificate Ext. PW-1/C Disability Certificate given by Medical Board Kangra at Dharamshala, H.P. Ex. DX FIR No. 32 of 2004 dated 18.1.2004 5. Learned trial Court acquitted the accused qua the offence punishable under Sections 452 & 376 IPC. Feeling aggrieved against the judgment passed by the learned trial Court State filed the present appeal before the Hon’ble High Court of Himachal Pradesh. 6. Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in acquitting the accused qua criminal offence punishable under Sections 452 & 376 IPC? Oral evidence adduced by the prosecution:- 7. PW-1 Jugal Kishore has stated that he is an agriculturist and in addition to that he used to play musical instrument in religious functions and he has stated that he has two children one son and one daughter. Oral evidence adduced by the prosecution:- 7. PW-1 Jugal Kishore has stated that he is an agriculturist and in addition to that he used to play musical instrument in religious functions and he has stated that he has two children one son and one daughter. He has stated that on dated 17.01.2004 he had gone to attend religious function in village Sahlana at about 2.30 p.m. and when he went to attend religious function, his mother, wife i.e. prosecutrix and children were present in the house. He has stated that he came to his house on the next day at about 10 a.m. and when he returned to his house his mother asked him about the name of person to whom he had given musical instrument. He has stated that he replied that he had given the musical instrument to accused. He has stated that his mother disclosed to him that when she had gone in the village to mourn death in the neighbourhood in her absence accused came to matrimonial house of prosecutrix and committed rape with prosecutrix inside the house. He has further stated that prosecutrix and his children also disclosed to him about the incident of rape. He has stated that thereafter he went to Pradhan Anil Kumar and narrated the incident and Pradhan told him to summon the accused person after 5-7 days before the Panchayat. He has stated that thereafter he went to his Guruji in village Bharal and his Guruji accompanied to the Police Station where he reported the matter to the police and police registered the FIR. He has stated that thereafter police medically examined prosecutrix. He has stated that during investigation police took into possession the disability certificate of prosecutrix which was produced by him and also took into possession one Shawl which was also handed over to the police by him vide memo Ext. PW1/A. He has stated that disability certificates are Ext. PW1/B and Ext. PW1/C. He has stated that during investigation police identified the accused who came to his house to return musical instrument. He has stated that prosecutrix and children identified the accused to be the person who came to his house to return musical instrument and committed rape upon prosecutrix. He has denied suggestion that nothing had happened with his wife on dated 18.01.2004. He has stated that prosecutrix and children identified the accused to be the person who came to his house to return musical instrument and committed rape upon prosecutrix. He has denied suggestion that nothing had happened with his wife on dated 18.01.2004. He has also denied suggestion that he had some dispute qua rent of musical instrument from accused and he has also denied suggestion that false case has been filed. 8. PW-2 Master Nikhil aged 9 years has stated that his father used to perform religious functions and he has stated that in his house there are his grand mother, his father, mother and younger sister. He has stated that on dated 17.01.2004 his father had gone to perform religious function and his grand mother had gone in the village to mourn death while he was playing in his courtyard along with his sister and his mother prosecutrix was sitting in the baramda of matrimonial house of prosecutrix. He has stated that accused person present in the Court came and returned musical instrument and thereafter he took his mother prosecutrix inside the house and bolted the room from inside and thereafter inside the room accused removed the clothes of his mother prosecutrix and forced her to lie down and thereafter accused himself laid his body upon prosecutrix and committed rape upon prosecutrix and after some time accused put on his clothes and also allowed prosecutrix to put on her clothes. He has stated that he saw the incident of rape from outside the door through small holes which were available in wooden planks of the doors. He has stated that thereafter accused after opening the door left the place and he identified the accused in the Court and told that accused is same person who had committed rape upon the prosecutrix i.e. his mother. He has denied suggestion that accused did not come to his house. He has also denied suggestion that accused did not enter into house by closing the door from inside and denied suggestion that accused did not remove the clothes of his mother i.e. prosecutrix. He has also denied suggestion that accused did not lay his body upon prosecutrix. He has also denied suggestion that he deposed falsely at the instance of his father to implicate the accused falsely. 9. On dated 01.08.2008, Sh. He has also denied suggestion that accused did not lay his body upon prosecutrix. He has also denied suggestion that he deposed falsely at the instance of his father to implicate the accused falsely. 9. On dated 01.08.2008, Sh. B.K. Marwaha, learned PP did not examine prosecutrix who was present in the Court and closed prosecution evidence. 10. Submission of learned Advocate appearing on behalf of the appellant that learned Addl. Chief Judicial Magistrate Nurpur recorded the statement of the prosecutrix who is partially deaf and completely dumb through interpreter by way of gestures and signs and learned trial Court has committed grave miscarriage of justice by way of not recording the statement of the prosecutrix through interpreter by way of gestures and signs as required under Section 119 of the Indian Evidence Act 1872 is accepted for the reasons hereinafter mentioned. In the present case it is proved on record that Addl. Chief Judicial Magistrate Nurpur has recorded the statement of the prosecutrix who was partially deaf and completely dumb through interpreter by way of gestures and signs as required under Section 119 of the Indian Evidence Act 1872. Learned trial Court did not examine the Addl. Chief Judicial Magistrate Nurpur who had recorded the statement of the prosecutrix through interpreter by way of gestures and signs. In the present case accused is facing heinous and grave criminal charge of rape. It is well settled law that offence of rape is stigma upon the society as a whole. It is also well settled law that murder destroys the body of the victim but rapist disgraces the soul of the prosecutrix. In the present case prosecutrix is partially deaf and completely dumb. It is proved on record that prosecutrix is not deaf to the extent of 100% but is partially deaf to the extent of 80% towards her left ear and 45% towards her right ear. Learned trial Court did not assign any reasons for disbelieving learned Committal Judicial Magistrate who had recorded the testimony of prosecutrix through interpreter by way of signs and gestures. 11. Learned trial Court did not assign any reasons for disbelieving learned Committal Judicial Magistrate who had recorded the testimony of prosecutrix through interpreter by way of signs and gestures. 11. In the present case it is proved on record that on dated 04.03.2008, 02.05.2008 and 25.07.2008 prosecutrix was present in the trial Court but learned trial Court did not examine the prosecutrix and held that inquiry is essential whether the prosecutrix is competent witness in view of her disability certificate placed on record and learned trial Court ordered the inquiry under Section 118 of the Indian Evidence Act 1872 so as to find out whether the prosecutrix is competent witness or not. It is also proved on record that on 02.05.2008 prosecutrix was present in the learned trial Court and learned trial Court discharged the prosecutrix who is partially deaf and completely dumb and ordered that victim would be examined by ENT Expert and learned trial Court directed the prosecution to get the prosecutrix medically examined through ENT expert in Zonal Hospital Dharamshala or at RPGMC Tanda whichever was convenient. Thereafter on 26.07.2008 learned trial Court held that the prosecutrix was dumb to the extent of 100% being permanent in nature and learned trial Court also held that disability of the prosecutrix was 80% qua hearing in the left ear and disability of hearing was 45% in the right ear and thereafter learned trial Court held that prosecutrix was not competent witness under Section 118 of Evidence Act 1872 despite the fact that statement of the prosecutrix was recorded by the Committal Judicial Magistrate with the help of interpreter by way of gestures and signs in committal proceedings under Section 119 of Indian Evidence Act 1872. 12. Submission of learned Advocate appearing on behalf of the respondent that deaf and dumb prosecutrix is not in a position to communicate by way of gestures and signs in view of medical evidence is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that medical evidence is evidence under Section 45 of Indian Evidence Act 1872. It is also well settled law that medical evidence is only advisory in nature. It is also well settled law that when there is conflict between evidence of direct eye witness and medical evidence then evidence of direct oral eye witness always prevails. It is also well settled law that medical evidence is only advisory in nature. It is also well settled law that when there is conflict between evidence of direct eye witness and medical evidence then evidence of direct oral eye witness always prevails. See – AIR 1975 SC page 1925 titled K. Puran Chandra Rao vs. Public Prosecutor A.P. Also See 1991(2) Supreme Court Cases page 588 titled Daryao Singh vs. State of Madhya Pradesh. 13. We are of the opinion that a person who is partially deaf to the extent of 80% in her left ear and 45% in her right ear can communicate the incident of rape by way of gestures and signs through interpreter to the Court. Even as per Section 119 of the Indian Evidence Act deaf and dumb person is a competent witness. In the present case it is proved on record that prosecutrix was competent to communicate by way of gestures and signs through interpreter. In the present case it is also proved on record that learned Addl. Chief Judicial Magistrate Nurpur has recorded the statement of the prosecutrix by way of gestures and signs through interpreter as required under Section 119 of Indian Evidence Act 1872 in committal proceedings. Section 119 of Indian Evidence Act 1872 was amended and Section 119 of Indian Evidence Act 1872 was extended to Section 27 of Indian Evidence Act 1872 w.e.f. 03.02.2013. In the present case it is proved on record that offence was committed on dated 17.01.2004 and it is proved on record that on 17.01.2004 Section 119 of Indian Evidence Act 1872 was in operation qua the testimonies of deaf and dumb witnesses. It is held that learned trial Court has committed grave miscarriage of justice and has committed procedural illegality by way of not recording the statement of the prosecutrix under Section 119 of Indian Evidence Act 1872. See AIR 2012 SC page 1973 titled State of Rajasthan vs. Darshan Singh. It is held that witness who is unable to speak can give evidence in Court by way of signs through interpreter. 14. Hence we hold that retrial is essential in the present case in the ends of justice and in order to impart substantial justice to the parties. It is held that witness who is unable to speak can give evidence in Court by way of signs through interpreter. 14. Hence we hold that retrial is essential in the present case in the ends of justice and in order to impart substantial justice to the parties. We accept the appeal filed by the State of H.P. and set-aside the judgment passed by the learned trial Court and remand the case to the learned Sessions Judge Kangra at Dharamshala (H.P.) with direction to record the statement of the prosecutrix by way of gestures and signs through interpreter as provided under Section 119 of Indian Evidence Act 1872 and we also order that statement of prosecutrix shall also be videographed as required under Section 119 of Indian Evidence Act 1872. We also direct the learned Sessions Judge Kangra (H.P.) to record all the statements of the material witnesses essential in the present case in the ends of justice. Thereafter learned trial Court will dispose of case afresh in accordance with law. Evidence of PW-1 Jugal Kishore and evidence of PW- 2 Master Nikhil already recorded by the prosecution will form part and parcel of the record. Learned Sessions Judge Kangra (H.P.) will dispose of the present case afresh expeditiously within three months after receipt of the case file keeping in view the gravity of offence of rape and keeping in view the fact that present case is pending since 2004. Records be transmitted forthwith along with certified copy of remand order of H.P. High Court. Parties are directed to appear before learned Sessions Judge Kangra (H.P.) on date 04.09.2014. Our observations will not effect merits of the case in any manner. Pending applications if any are also disposed of.