JUDGMENT 1. - This appeal is directed against the judgment and order of conviction recorded by the learned Additional Sessions Judge Rajsamand on 8.3.1984 in Sessions Case No. 39/82 convicting the appellant under section 376 of the IPC for committing rape on a minor girl. He was sentenced to suffer 7 years rigorous imprisonment. After the appeal was admitted, he has been released on bail. 2. With the assistance of the learned counsel for the appellant and the learned Public Prosecutor, I have scrutinised the record and re-appreciated the evidence. 3. On re-appreciation of the evidence of prosecutrix it is found that though the prosecutrix stated in her examination-in-chief about her being raped by the accused, she has candidly admitted in the cross-examination that as soon as she was fall on the ground she became unconscious and does not know anything what happened thereafter. From the perusal of the evidence, it is also found that there is no evidence in the shape of deposition of the Doctor, who physically examined tie victim of alleged rape. There is, therefore, no proof on record regarding rape being committed as the prosecution has failed to examine the Doctor. He too deposed two factual injuries and thus proved rape on the victim, even though the victim was unconscious. Since the action to prove her rape is not taken by the prosecution, the benefit of doubt will have to be given to the accused as the conviction without being in evidence is unsustainable in law. 4. In the result the appeal succeeds and is allowed and the judgment and order of conviction dated 8.3.1984 is set aside. The bail bonds of the accused are cancelled.Appeal allowed. *******