Judgment R.P. NAGRATH, J. By this common judgment, two connected appeals arising from same judgment of the trial Court are being disposed of. CRA-S-2983-SB of 2011 is filed by Jaswant Singh and CRA-S-2470-SB of 2012 by Balwant Singh. 2. The appellants faced trial of the charge under Section 376 IPC for committing rape on 14/15 years old mentally sick girl. The appellants were running an Ashram (Care Home) for mentally challenged patients at village Ladhuwal, District Ludhiana. 3. The prosecution was set in motion by Manmohan Singh who was about 18/19 years old boy. They are two siblings. The complainant was a small child when his father died. They were destitutes and took shelter in the ashram. Gurmeet Kaur mother of complainant started living in the ashram as wife of Jaswant Singh-appellant whose first wife had already died. Children of Jaswant Singh-appellant were already married and residing at Ludhiana. 4. There were about 13/14 differently challenged patients in the care home (ashram). Mother of the complainant was looking after the kitchen. 5. It was stated that both the appellants used to take liquor in the ashram and complainant had also seen them committing rape on 'P' (name withheld) a mentally challenged girl of the ashram, who was about 14/15 years old. 6. This act of committing sexual intercourse with that girl was videographed by the complainant on his mobile hand set. The version put-forth by the complainant was that about 10 or 12 days before lodging FIR they were all sitting in the room after having supper. Both the appellants had consumed liquor. Balwant Singh-appellant went out of the room on the pretext of going to toilet. The complainant had also came out of the room for urinating. While the complainant was passing by a room of an inmate, that he saw electric light inside the room. He peeped into the room from the hole (allah) and saw Balwant Singh committing sexual intercourse with 'P'. The complainant videographed the scene of sexual intercourse. Even on the next day the complainant videographed the act of sexual intercourse committed by Balwant Singh-appellant with 'P'. 7. Due to fear of the appellants, the complainant did not speak about the incident to anyone during these days. On 18.04.2006, PW-9 Shiv Kumar resident of Phagwara had come to the ashram for donating ceiling fans. The complainant disclosed those incidents to Shiv Kumar aforesaid. 7. Due to fear of the appellants, the complainant did not speak about the incident to anyone during these days. On 18.04.2006, PW-9 Shiv Kumar resident of Phagwara had come to the ashram for donating ceiling fans. The complainant disclosed those incidents to Shiv Kumar aforesaid. Shiv Kumar then took the complainant alongwith him to report the matter to the police. Ex. PB, the statement of complainant was recorded on 18.04.2006 at 11.40 p.m. and First Information Report (FIR) (Ex. PB/2) was registered. 8. The complainant handed over his mobile hand set 'Sony Ericsson' make fitted with camera and CD cassette containing video recording of Balwant Singh-appellant committing sexual intercourse with the victim, which were taken into possession by the police vide memo Ex. PC. Ex. PW-7/A, is the site plan, prepared by the investigating officer, showing the room where the incident took place. This site plan depicts points, from where the video was clicked by complainant and the electric bulb fitted in the room. The victim was also medicolegally examined. She was also examined by the experts to test her intelligence quotient (IQ). 9. The case was committed to the Sessions Court for trial and after framing of the charge against the appellants, they were put to trial. The prosecution examined 10 witnesses in support of its case. 10. During their examination under Section 313 Cr.P.C. both the appellants denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Jaswant Singh-appellant pleaded as under:- “I am president of 'Apahaj Rogian Da Ashram' Ladhuwal, Ludhiana. I had employed Gurmeet Kaur mother of Manmohan Singh complainant on monthly salary of Rs. 1500/-, for cooking meals for inmates of the Ashram. She was given two rooms and kitchen for her residence. Gurmeet Kaur and her family members wanted to usurp the property. This is a false case. I am 72 years old and my sons and daughters are married.” 11. Balwant Singh pleaded that he has been implicated being the brother of Jaswant Singh who is President of the Ashram. 12. In defence the appellants examined DW-1 Balwinder Singh the son of Jaswant Singh-appellant. 13. Learned trial Court convicted both the appellants of the charge under Section 376 IPC and awarded them sentence to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 12. In defence the appellants examined DW-1 Balwinder Singh the son of Jaswant Singh-appellant. 13. Learned trial Court convicted both the appellants of the charge under Section 376 IPC and awarded them sentence to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 5000/-, in default to undergo rigorous imprisonment for 2 years each. 14. PW-8 Dr. Krishna Nand Chaudhary was Professor, Head of the Department of Clinical Psychology, CMC & Hospital, Ludhiana. He conducted three tests on the victim on 06.06.2006 i.e. Digit span test, Seguin Form Board test of intelligence and WISC. The victim was 14 years old left handed girl, illiterate, belonging to a poor family. The patient was not aware of her age. The victim was suffering from colour blindness and her IQ was found to be 26, which indicated severe mental retardation (emphasis laid). In this regard the doctor gave report Ex. PD under his signatures. 15. PW-5 Dr. Kanwaljit Kaur, Civil Hospital, Ludhiana medicolegally examined the victim on 19.04.2006. The doctor stated that the higher functions were not normal as the victim was mentally and physically challenged. Secondary sex characters of the victim were well developed. The vagina admitted two fingers and hymen was torn (emphasis laid). Copy of medicolegal report prepared by the doctor is Ex. PE. PW-5 stated that possibility of victim being raped could not be ruled out. Even in the cross-examination, the doctor stated that the victim was unable to explain anything because she was mentally retarded. 16. PW-4 Dr. Anoop Koshy, Radiologist conducted CT Head Plain, of the victim, a 14 years old patient. The evidence brought through PW-4 does not require detailed discussion as doctor advised CT Head with contrast as CT Head Plain was equivocal. 17. PW-3 Dr. Yashpal Singh, Professor in Neurology, CMC & Hospital, Ludhiana conducted EEG test of the victim on 27.04.2006 and found it to be a case of epilepsy. The test report was abnormal which was suggestive of epilepsy. The report prepared by the doctor is Ex. P-3/A. 18. The above medical evidence cogently establishes that the victim who was inmate of the ashram was about 13 to 14 years of age and was mentally retarded. Observations made by Dr. The test report was abnormal which was suggestive of epilepsy. The report prepared by the doctor is Ex. P-3/A. 18. The above medical evidence cogently establishes that the victim who was inmate of the ashram was about 13 to 14 years of age and was mentally retarded. Observations made by Dr. Kamaljit Kaur (PW-5) that hymen of the victim was torn and vagina admitted two fingers, would further prove that 'P' a 14 years old mentally sick child was sexually ravaged. 19. PW-1 Dr. U.S. Sooch, Medical Officer, Civil Hospital, Ludhiana examined Jaswant Singh-appellant 63 years of age, on 19.04.2006 and Dr. S.K. Sharma (PW-6) examined Balwant Singh 45 years old, on 06.05.2006. The doctors found nothing to suggest that appellants were incapable of performing sexual intercourse. The reports furnished by the doctors are Ex. PA and Ex. PW-6/A respectively. 20. I have heard learned counsel for the appellants, the State counsel and carefully perused record of the trial Court with their able assistance. 21. Learned counsel for the appellants made a fourfold attack to the above evidence; (i) that the CD has not been got examined from Forensic Science Laboratory (FSL) to prove its authenticity; (ii) that witnesses are inimically deposed against the appellants; (iii) that there was huge delay of 10 to 12 days in reporting the incident to the police; and (iv) that the victim was not examined or produced before the trial Court. 22. Learned State counsel on the other hand submitted that non-examination of the prosecutrix is not fatal to the case in view of the medical evidence led by the prosecution that the girl was mentally challenged and was not capable of making statement. It is for this reason that the victim though cited in list of witnesses yet her statement under Section 161 Cr.P.C. was not recorded. 23. After giving my thoughtful consideration to the above contentions, I find that there is cogent, convincing and direct evidence to prove the charge of rape against Balwant Singh-appellant. PW-2 stated that they had been staying in the ashram since long as mother of PW-2 took shelter in the ashram when PW-2 was only 2 or 3 years old. There has been extensive cross-examination of PW-2, but his statement could not be possibly assailed. His statement is fully corroborated from the video recording in the CD Ex. P2. PW-2 stated that they had been staying in the ashram since long as mother of PW-2 took shelter in the ashram when PW-2 was only 2 or 3 years old. There has been extensive cross-examination of PW-2, but his statement could not be possibly assailed. His statement is fully corroborated from the video recording in the CD Ex. P2. The mobile hand set with the help of which the scene of sexual intercourse was videographed is Ex. P1. It is testified by PW-2 as well as PW-9 Shiv Kumar that this CD contains the act of sexual intercourse being committed by Balwant Singh with the victim. 24. It would be appropriate to quote some portion of the statement of PW-9 which make him absolutely a truthful person. In cross-examination, PW-9 stated that he went to the ashram for the first time on the day he met PW-2. Complainant was not known to him earlier. The witness further testified in the cross-examination that his 3 months old son had died and therefore he had gone to ashram to donate the fans, in memory of his son. He also stated that mother of the complainant was not even known to him. 25. The complainant as PW-2 stated that he did not disclose this incident to anyone because he could not muster courage to do so against his mentors. PW-2 even stated in the cross-examination that a dispute arose between his mother and Jaswant Singh because of immoral activities of Jaswant Singh with the inmates of the ashram. In the circumstances, the complainant (PW-2) would keep the incident a secret till a person of high moral values like PW-9 could be contacted in whom PW-2 confided. The circumstances under which PW-9 visited the ashram would show that the witness is a God fearing person and could be trusted. The entire defence to challenge testimony of PW-9 on the ground that the witness was inimically deposed against the appellants crumbles down if we refer to the following portion of cross-examination of the witness:- “.......It is wrong to suggest that Gurmeet Kaur is working as maid servant at my house. It is further wrong to suggest that a girl namely Neeta was sent by me to Delhi in the house of my sister-in-law. I have only one sister-in-law who is residing at Gwalior. It is further wrong to suggest that a girl namely Neeta was sent by me to Delhi in the house of my sister-in-law. I have only one sister-in-law who is residing at Gwalior. I do not know if any case is registered qua said Neeta under Section 363, 366 Cr.P.C. It is wrong to suggest that I have been visiting the Ashram to Gurmeet Kaur and Manmohan Singh much prior to the alleged occurrence. It is wrong to suggest that they had been serving in our house as servants. I had brought 3-4 ceiling fans to donate at Ashram. I bought these fans from Phagwara. I do not remember from which shop I purchased these fans. I can not tell their make. I do not have any receipt or the bills. I got installed the said fans in the Ashram with the help of some electrician, but I do not know him. I do not know from where the said electrician was arranged. I did not know the accused Jaswant Singh and Balwant Singh earlier, but now I identify them. I had seen them in the Court after the day of donating the fans in Ashram. There were some mentally retarded children in the Ashram. I can identify the girl 'P'. In the Ashram I came to know about said girl 'P', who remained present with us for about one and half hours when we were installing the fans............” PW-9 further stated that he had seen the video in the mobile phone in the ashram itself. Police took the mobile phone and had seen the movie in it. 26. Both PW-2 and PW-9 were not cross-examined on the contents of CD to suggest that this was not the movie of the sexual act being committed by Balwant Singh on the victim. The CD placed on the record was also watched and there remains absolutely no doubt in the version put-forth by these witnesses nor there is any scope of attacking its authenticity. 27. With the above clinching evidence, the argument that family of PW-2 has tried to malign the appellants with a view to take control of the ashram by throwing away the appellants, cannot be sustained. 28. 27. With the above clinching evidence, the argument that family of PW-2 has tried to malign the appellants with a view to take control of the ashram by throwing away the appellants, cannot be sustained. 28. It needs to be recorded with appreciation that PW-2 and PW-9 have rendered great service to the society by exposing the mighty people running care home apparently with a greed to collect huge donations from public who has compassion and sympathy for such institutions. The response which witnesses have given in the cross-examination would suggest that they are simpleton persons and PW-2 was rather so much disturbed with malfunctioning of the ashram that he did not come out to disclose the incident unless he could confide in someone like PW-9 Shiv Kumar a person with high moral values. 29. Learned counsel for the appellants submitted with vehemence that in fact appellant Jaswant Singh made a complaint with the police against mother of the complainant as she committed illegal act of taking away two girls from the ashram. 30. The learned appellants' counsel referred to the following portion of cross-examination of PW-2:- “...........I did not see any girl in the name of Geeta in Ashram. I have no knowledge whether Manjit Kaur had taken away Geeta from Ashram. I have no knowledge whether Jaswant Singh had given any application against my mother. I have no knowledge whether any report regarding missing of Geeta was lodged by Jaswant Singh. I have no knowledge whether Geeta was sent to any police officials at that time. There was no girl in Ashram in the name of Reeta. I have no knowledge whether there were strained relations between my mother and Jaswant Singh regarding missing of Reeta and Geeta. It is incorrect to suggest that there were strained relations between my mother and Jaswant Singh regarding missing of Reeta and Geeta.............” 31. It is thus contended that the above statement of PW-2 is incorrect as PW-2 in cross-examination admitted that Manjit Kaur is the sister of his mother. Learned counsel also referred to a document Mark 'A', the statement dated 29.04.2003, made by one Preeti @ Rita a 12 years old child. That girl disclosed in the statement that her Bua Manjit Kaur handed over her custody to one Ravinder Kumar and his wife. Learned counsel also referred to a document Mark 'A', the statement dated 29.04.2003, made by one Preeti @ Rita a 12 years old child. That girl disclosed in the statement that her Bua Manjit Kaur handed over her custody to one Ravinder Kumar and his wife. Nothing, however, appeared in testimony of PW-2 to suggest that any such lady Manjit Kaur has connection with mother of PW-2 nor the parentage of Manjit Kaur is mentioned in Mark 'A'. The defence plea based on the statement Mark 'A' dated 29.04.2003 is not at all substantiated. The document Mark 'A' is also not validly proved. The present occurrence relates to the incident of the year 2006. 32. The appellants' counsel further referred to a dispute between mother of the complainant and Jaswant Singh-appellant. This contention is based on documents are Ex. DA and DB, which are of the year 2004 and 2002 respectively. These documents would rather support the testimony of PW-2 that there was a dispute between his mother and Jaswant Singh-appellant because of the immoral activities in which Jaswant Singh-appellant was indulging. PW-2 the complainant rather stated that on the request of Jaswant Singh-appellant they again came to the ashram to serve the patients. 33. PW-7 SI Vinod Kumar is the investigating officer and there is nothing to suggest in the cross-examination that investigation was not fair or it was tainted. The statement of DW-1 the son of Jaswant Singh-appellant cannot possibly rebut the positive and direct evidence against Balwant Singh-appellant as discussed above. 34. So far as Jaswant Singh-appellant is concerned except the oral testimony of PW-2, there is no other evidence for suggesting that this appellant also indulged in the sexual assault with the victim or any other inmate of ashram. PW-2 may be right in deposing against Jaswant Singh-appellant also but there is no authentic evidence to prove the charge against this appellant. Admittedly, video with regard to the sexual acts prepared on both days relate to Balwant Singh committing sexual intercourse with the victim. Therefore, in the absence of sufficient proof, the learned trial Court fell in error in convicting Jaswant Singh-appellant. 35. It is, however, painful and distressing to observe that such types of self styled institutions/NGOs are permitted to mushroom in the town/cities. The administrative machinery seemed to be oblivious of these inhuman and insensitive activities. Therefore, in the absence of sufficient proof, the learned trial Court fell in error in convicting Jaswant Singh-appellant. 35. It is, however, painful and distressing to observe that such types of self styled institutions/NGOs are permitted to mushroom in the town/cities. The administrative machinery seemed to be oblivious of these inhuman and insensitive activities. This was a sensational and senseless crime which could not be come to the fore without the courage shown by PW-2 who felt emboldened with the active help of PW-9. 36. It is further astonishing and surprising that the District Police did not hand over the investigation to a senior police officer but felt complacent with the investigation being conducted by a junior police official like Assistant Sub Inspector. 37. Had the investigation been entrusted to a senior police officer, he would have contacted other inmates of the care home and collected more and proper evidence. It was rather required to constitute a Special Investigating Team and monitor the progress but the same was permitted to be handled by an Assistant Sub Inspector. The investigating officer simply relied upon the evidence revealed by PW-2 and did not go deep into the matter which was almost a scandal going in the ashram. 38. It was lastly contended that charge against Balwant Singh-appellant was under Section 376 IPC and awarding sentence for 10 years is on the higher side. From the facts proved in this case awarding of 10 years rigorous imprisonment was rather on lower side. Clause (c) of Section 376(2) IPC says that whoever being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Explanation 2 of sub-section says that “women's or children's institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of woman or children. 39. Explanation 2 of sub-section says that “women's or children's institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or by any other name, which is established and maintained for the reception and care of woman or children. 39. As a consequence of above discussion, CRA-S-2983-SB of 2011, filed by Jaswant Singh is allowed by giving him benefit of doubt and he stands acquitted of the charge framed against him by setting aside the judgment of conviction and sentence passed by the trial Court and CRA-S-2470-SB of 2012 filed by Balwant Singh-appellant is dismissed. 40. Jaswant Singh-appellant be set at liberty forthwith, if not required in any other case. A copy of this judgment be sent to all the concerned for compliance.