1. - This appeal has been filed by the accused against the judgment of learned Additional Sessions Judge, Gangapur City dated 5.3.1984 whereby the accused-appellant was found guilty under Section 376, IPC and was awarded two years' Rl for the same. He was also found guilty under Section 323, IPC and was awarded a fine of Rs. 200/-. In default of payment of fine he is to undergo one month's S.l.

2. According to the prosecution story, P.W. 6 Prabhu Dayal Koli on 28.1.83 at 1.45 p.m. lodged a written FIR (Ex.P.11) at police station, Gadhmora to the effect that on the previous day at about 5 p.m., his wife Smt. Sona was in the agricultural field where she had gone for safety of the crop and the accused-appellant took her to the field of Giri Raj S/o Narain Meena and committed rape in the standing crop of the said field. According to the report, the accused, during course of the offence, strangulated Smt. Sona by virtue of which, she became unconscious. Subsequently, she regained consciousness and returned to the village to narrate the incident to her husband. According to the F.I.R. she was taken by her husband Prabhu Dayal to the dispensary situate at Bamanwas at 9.30 p.m. on 27.1.83 but the concerned doctor refused to examine her unless advised by the police to do so. A case under Section 376 IPC was registered and ultimately, challan was filed in the court of learned Magistrate who committed the case to the court of Sessions and the accused was charged for the said offences. The accused- appellant pleaded not guilty.

3. P.W.1 Dr. Mohan Lal Gupta, P.W.2 Himmat Singh, P.W. 3 Ramesh, P.W.4 Jugal Kishore, P.W.5 Bhourilal, P.W.6 Prabhu Dayal, P.W.7 Prithvi Raj, P.W. 8 Om Prakash Sharma, RJS., and P.W.9 Rooparam were examined by the prosecution. Smt. Sona (prosecutrix) could not be examined as witness in the court as in the meanwhile she is said to have died for other reasons. The statement of the accused-appellant was recorded under Section 313, Cr.P.C. He denied the allegations completely and stated that the case has been lodged against him at the behest of the local M.L.A. He further stated that sub-Divisional Magistrate and other officers were in the village on 27.1.83 and he was with them for whole of the day.

4. D.W.1 Natthu and D.W.2 Ram Kishan were examined in defence who deposed to the effect that the Sub-Divisional Officer, Tehsildar, MLA and other officers were in the village and no such incident came to their notice. They also deposed to the effect that the complainant Prabhu Dayal and the prosecutrix Smt. Sona used to reside in Delhi and no field was cultivated by them in the village. The learned trial court, thereafter, heard the arguments and decided the case on 5.3.84 in the aforesaid manner against which this appeal has been filed.

5. After hearing learned counsel for the appellant and learned Public Prosecutor, I find that the conclusions draw by the learned trial court are not sustainable and the appeal deserves to be allowed.

6. As pointed out earlier, the principal witness Smt. Sona has not been examined as a witness and her non-examination is very a important factor. Of course, her statements under Section 161 and 164, Cr.P.C. were recorded but without any opportunity to the accused to cross examine her those statements are of no consequence. P.W.3 Ramesh Koli was examined as a witness who allegedly met the prosecutrix soon after the incident and saw the accused-appellant running away. The Sarpanch Prithvi Raj has been examined and he has stated to the effect that the incident was subsequently narrated to him by Smt. Sona. I find that the testimony of Ramesh and Prithvi Raj is not sufficient to find the accused guilty under Section 376 and 323, IPC. The case of the accused-person has been to the effect that Prithvi Raj has got an enmity with him and the local MLA is relation of Prithvi Raj and it was at their behest that this case was foisted upon him. My attention has been drawn to the testimony of Dr. Moha