JUDGMENT 1. - This appeal is directed against the judgment and order dated 22.12.1987 passed by the learned District & Sessions Judge, Jhalawar in Sessions Case No. 126/1987 convicting the appellant under sections 366 & 376 IPC and sentencing him to suffer imprisonment for 3 years and 7 years respectively and also to pay a fine of Rs. 1,000/- and Rs. 1,500/- correspondingly and suffer imprisonment in case of default in payment thereof. 2. I have heard Mr. Rinesh Gupta, learned counsel for the appellant and Mr. Javed Choudhary, Public Prosecutor for the State. 3. The case of the prosecution in short is that on 21.05.1987 the victim Dhapu Bai, the daughter of Nand Ram a resident of Kadar Nagar, Tehsil Pidawa, having gave missing, a FIR was lodged with the jurisdictional police station by her father. Following registration of the police case, investigation was started and eventually the victim was recovered from the custody of the appellant. Charge-sheet was submitted against him under sections 366 & 376 IPC. Charge was, however, framed by the learned trial court against him under sections 366 & 376 IPC to which he pleaded "not guilty". 4. The prosecution examined 12 witnesses including the prosecutrix, her father, the complainant and the Investigating Officer. In the course of examination of the appellant under section 313 Cr.P.C., while denying the charges against him admitted the recovery of the prosecutrix from his custody. In course of the investigation, police conducted medical examination of the victim and also of the appellant. Seizure of cycle allegedly used by the appellant for abducting the prosecutrix was also effected. At the conclusion of the trial by the judgment and order impugned, the appellant was convicted and sentenced as above. 5. Mr. Gupta has argued that it being apparent from the testimony of PW-2 prosecutrix that she had gone in the company of the appellant on her own volition which is also apparent from an affidavit executed by her dated 22.05.1987, admitting that he (appellant) had accepted her on the basis of the "Natha" rituals and that it established a relationship of husband and wife in the "Natha" system prevalent in her community, his (appellant's) conviction is unsustainable in law and is liable to be interfered with. The learned counsel has further argued that the prosecution, amongst others, having failed to examine the doctor who had performed the medical examination of the victim, the certificate issued by him was inadmissible in law and thus the learned trial court had grossly erred in convicting him (appellant) on the basis thereof. 6. Mr. Choudhary, learned Public Prosecutor, on the other hand, has argued that it being apparent from the evidence of the prosecutrix, her father (complainant), and the other evidence on record that the charge of abduction and rape against the accused appellant had been proved beyond all reasonable doubts, no interference in the impugned judgment and order is called for. 7. Noticeably, the defence of the appellant is that the victim had come to his company voluntarily and that had accepted him as her husband on the basis of "Natha" system prevalent in her community. That she had been recovered by the police from his custody is admitted by him. A bare perusal of the testimony of PW-2, the victim, discloses that according to her in the morning of the date of occurrence i.e.21.05.1987 while she had gone to answer nature's call, she was perforce taken on a cycle by the appellant by gaging her mouth for which she became unconscious. According to her, she had returned to her senses much later. Though in her examination-in-chief, she deposed that the appellant did commit forcible sexual intercourse with her at the point of dagger and continuous threats in cross-examination, she admitted about the "Natha" system in her community. She further admitted about some ritual in that regard in the presence of 2-3 members of the women folk during her stay with him. The affidavit said to have been executed by her and exhibited in course of the trial on behalf of the defence, would disclose that she had stated that after her marriage her first husband used to assault her and that therefore, she on her own volition had gone with the appellant and had been residing with him by accepting him to be her husband. 8. 8. On a cumulative consideration of the evidence on record, more particularly, the testimony of Dhapu Bai PW-3 and the affidavit executed by her, I am of the un-hesitant opinion that the prosecution has not been able to prove the charge against the appellant under sections 366 & 376 IPC against the appellant beyond all reasonable doubt. 9. The reasoning and findings recorded in the impugned judgment and order in the face of the materials on record do not commend for acceptance. 10. In the above view of the matter, the judgment and order impugned is interfered with. The appellant is acquitted of the charges and is hereby discharged from the bail bonds. 11. The appeal is allowed.Appeal allowed. *******