JUDGMENT 1. - Being aggrieved by the judgment of conviction dated 30.7.1986 passed by the learned Sessions Judge, Rajsamand in sessions case No. 18/85 convicting the accused under section 376 IPC and sentencing him to suffer five years' R.I., the appellant preferred this appeal on the grounds mentioned in the memo of appeal as also verbally canvassed before me. 2. With the assistance of the learned counsel for the appellant and the learned Public Prosecutor for the State, I have scrutinised the record and re-appreciated the evidence on record. 3. The prosecution story as it emerges from the re-appreciation of the evidence on record is that; on 24th August, 1984, criminal complaint was filed in the Court of Munsif and Judicial Magistrate 1st Class, Railmajra by one Badri Lal stating that he was married with one Mst. Santoki six years prior to lo the report and lived with her for two years. He has alleged that she was taken away by her parents on the pretext that her mother was ill. It is then alleged in the complaint that this was false statement made by the father, factually they had taken her away and given her in second marriage called `Nata' to one Ratan Lal. He having been informed that Santoki has been given in `Nata' to one Ratan Lal, he has filed this complaint. The complaint is one record as Ex.P/1. On the basis of this complaint, the learned Magistrate ordered enquiry and investigation under section 156(3) of the Cr PC and after investigation, challan was filed, the prosecutrix was recovered from the custody of accused and ultimately the Magistrate committed them for trial before the Sessions Court and the accused was charged under section 376 of the I.P.C. as also with section 366-A of the Indian Penal Code. The learned trial Judge on appreciation of the evidence on record, came to the conclusion that there was no proof of abduction or kidnapping and therefore, proceeded to acquit the accused of that charge but found the accused guilty of rape and convicted him as aforesaid It is against the order of conviction that the appeal is preferred as mentioned above. 4. The learned counsel for the accused-appellant argued very vehemently that the entire conviction is unsustainable in law. 4. The learned counsel for the accused-appellant argued very vehemently that the entire conviction is unsustainable in law. According to him complaint itself was filed against the accused-person by the complainant only under section 366 and 363 for abduction and kidnapping of the wife of the complainant. In the complaint, there are no allegation of rape against any person and yet the learned Judge the convicted the accused of rape. According to the learned counsel, the entire complaint was that the accused has kidnapped the minor wife and has married her. According to the learned counsel, even the evidence on record does not warrant such conviction, the entire evidence in fact is directed towards kidnapping by the accused to perform `Nata' with Santoki. The entire deposition of PW 1 Badri Lal is to that effect that he has nowhere averred in his deposition that after santoki was taking to the house of Ratan Lal, she has been subjected to intercourse. 5. PW. 2 Narayan son of Bhera states that he knew or the marriage between Badri Lal and Santoki. His evidence is wholly inconsequential. He however, states that he heard Santoki being given in `Nata' in village Lakshmi Pura. 6. PW. 3 Narain son of Uderam who also speaks of his knowledge about the marriage between Badri Lal and Santoki. He deposed that he heard that wife of Badri Lal was taken to Indore by accused Ratan. His evidence also does not, therefore, help the prosecution in the matter of conviction for rape. PW. 4 Chittar Mal speaks of his presence when Santoki was recovered so from the house of the one Bhanwar Lal and he states that at that time, Ratan Lal nowhere to be seen, P.W. 5 Narain scn of Moti is an again witness of hearing that Santoki was given in. None of these witnesses speak of any subjected intercourse between Patan Lal and Santoki. 7. P.W. 6 is Santoki, her testimony is worth consideration. She speaks that when she was sitting near the well, the accused with his father came there and said that she should accompany them to Indore. On her refusal to do so, the accused show her a knife and took her away at the point of knife. 7. P.W. 6 is Santoki, her testimony is worth consideration. She speaks that when she was sitting near the well, the accused with his father came there and said that she should accompany them to Indore. On her refusal to do so, the accused show her a knife and took her away at the point of knife. She then states that the accused and his father Rama forcibly took her to village Gilandu, from Gilandu to village Kapasan, from Kapasan to Chittor and from Chittor to Indore. She has then deposed that at Indore, they were to staying at the house of Bhanwar Lal Brahmin and she then states that for one and half month, she was staying there, she was subjected to intercourse by the accused. In her cross-examination, she denied suggestion or even knowledge of her given in `Nata' to Ratan Lal. In her cross-examination, she has further insisted on maintaining that she has beer forcibly kidnapped. She has then admitted in her cross-examination that she used to accompany wife of Bhanwar Lal to go to market for purchasing vegetables. She states that on many occasions, she saw a police man around. She speaks of menstrual secretion throughout the month. She has denied the suggestion that there was any penetration. She has deposed that she was very small and therefore, the accused could not penetrate her vagina, yet she alleges of forcible intercourse for one and half month and states that there was never any bleeding. 8. P.W. 10 is Doctor Asha Narain who examined the prosecutrix. She has deposed that the prosecutrix was habituated intercourse. She has deposed that Santoki had acquired purberty. Then comes to the deposition of PW 11 Dr. N.S. Kothari who deposed that the age of Santok is not more than 14 years. 9. On appreciation of this evidence, I am convinced the order of conviction is unsustainable in law. In fact the complainant came to the court basically on a complaint of kidnapping stating that the accused had kidnapped his wife. The learned Judge has acquitted the accused of kidnapping or abduction and the conviction of rape is ordered solely because the deposition of P.W. 6 Santoki who states that she was subjected to intercourse for one and half month, but even from her testimony, intercourse is not established. The learned Judge has acquitted the accused of kidnapping or abduction and the conviction of rape is ordered solely because the deposition of P.W. 6 Santoki who states that she was subjected to intercourse for one and half month, but even from her testimony, intercourse is not established. The learned Judge appears to have convicted the accused of rape from the finding given by the Doctor that she was habituated to intercourse and allegations made by the complainant that she was given in `Nate' and therefore, even if, there is intercourse with the consent, the prosecutrix being minor and not married to Ratan Lal in the legal way, technical rape is committed. However, there is nothing on record to support such conviction. 10. In view of the gross contradictory complaint and the evidence, the conviction is unsustainable in law. In fact except the evidence of prosecutrix P.W. 6, the entire other evidence led by the prosecution is for the purpose of proving the charges of kidnapping or abducting and not for proving rape. The testimony of prosecutrix herself is not such as can be relied upon for maintaining a conviction of rape without any corroboration even she does not coherently states about allegation of rape. In the circumstances it is improper to convict the accused under section 373 I.PC. (sic 376 IPC) In the result, therefore, the appeal succeeds and is allowed. The order of conviction and sentence is set aside. The accused is already on bail, his bail bonds are cancelled.Appeal allowed. *******