JUDGMENT 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. 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. Mohanlal Gupta who in his cross-examination has admitted that MLA Kunjilal Meena and Sarpanch Prithvi Raj had approached him when Smt. Sona was brought for medical examination. Dr. My attention has been drawn to the testimony of Dr. Mohanlal Gupta who in his cross-examination has admitted that MLA Kunjilal Meena and Sarpanch Prithvi Raj had approached him when Smt. Sona was brought for medical examination. Dr. Mohanlal Gupta has further admitted in his cross-examination that in case a forcible rape was committed in the field where the crop was standing then nature of injuries of the person of the lady would be more serious than the injuries found on the person of Smt. Sona. 7. In the statement recorded under Section 164 Cr.P.C. (Ex.P.14) Smt. Sona is said to have stated that during the course of incident, she received injuries on her throat, thighs and other parts of body. But strangely enough, Dr. Mohanlal Gupta does not say that there were any injuries on the throat or on the thighs. According to the F.I.R. the strangulation on the throat, was so severe that Smt. Sona became unconscious on the spot. The above contradictions go to the very root of the reliability of the prosecution story. 8. P.W.3 Ramesh Koli has stated to the effect that he found Smt. Sona in the field of accused Sri Kishan where she narrated the incident to him. However, as per the site plan (Ex.P.7), no field of the accused is shown in the vicinity. This simply goes to show that the investigation is not natural and unvoiced and the investigating officer has made efforts to create evidence against the accused. Ramesh Koli does not say that Smt. Sona became unconscious as a result of strangulation. Even the learned lower court has concluded to the effect that Ramesh Koli is a created witness. Similarly, Sarpanch Prithvi Raj's testimony does not inspire confidence. He cannot be termed as an independent witness. In his cross examination, he has admitted that his relations with the accused are not cordial and there had been a criminal case between the two. 9. P.W.6 Prabhu Dayal (husband of the prosecutrix) in his cross-examination has made a clear statement to the effect that on the day of the incident, there were many administrative officers and police people who were present in the village. He has stated that when he approached the Sarpanch Prithvi Raj, these police people and administrative officers were present. This admission is fatal to the reliability of the prosecution story. He has stated that when he approached the Sarpanch Prithvi Raj, these police people and administrative officers were present. This admission is fatal to the reliability of the prosecution story. Had that been the case, there was no difficulty in lodging the FIR then and there to the police people present. The FIR, as pointed earlier, was not lodged on 27.1.83. Although the police station, according to the FIR Ex.P.12 is only 8 Kms. away from the place of occurrence. The learned Public Prosecutor has argued that initially the prosecutrix was taken by her husband to the hospital at `Bamanwas' and the doctor refused to examine her without police request. I find that the concerned doctor has not been examined nor his name has appeared in the list of witness. Moreover, P.W.6 Prabhu Dayal in his cross examination has stated that he reached to the police station during the night at about 2.00 A.M. but his report was not taken and the same was accepted and registered 12 hours later at about 2.30 p.m. on the next day. However, this allegation nowhere finds place in the endorsement of the police made on Ex.P.11. The formal FIR Ex.P. 12 which is said to have been recorded on 28.1.83 has reached the concerned Magistrate on 1.2.83. This further makes the FIR suspect and supports the defence version that it was anti-dated and actually not recorded on 28.1.83. 10. In view of the discussion made above, I find that the evidence produced by the prosecution does not inspire any confidence. In view of this and in view of the fact that Smt. Sona has not been examined as a witness, the finding of guilt under Section 376, IPC does not remain sustainable. So far as the offence under Section 323, IPC is concerned, there is no acceptable evidence on the basis of which, it can be inferred that the accused-appellant voluntarily caused injuries on the person of Smt. Sona. 11. Consequently, the appeal is allowed and the judgment dated 5.3.84 passed by the learned Additional Sessions Judge, Gangapur City is set aside. The accused-appellant is acquitted of both the charges.Appeal allowed. *******