S. K. CHAWLA, J. ( 1 ) APPELLANT Bharat, aged 25 years, has preferred this appeal against his conviction under S. 376, I. P. C. and sentence of rigorous imprisonment for 4 years inflicted thereunder. ( 2 ) THE prosecution story briefly stated was that on 3-2-84 Mst. Birniyabai (P. W. 2) was alone in her house, because her parents had gone away on that day to attend a fair. The house is in a hamlet called Padaria in an aboriginal district of Madhya Pradesh i. e. Mandla. At About 4 p. m. on that day, two accused named Bharat (appellant herein) and Loku came to that house. Bharat went inside the house and asked for fire being lent to him. When Biriniyabai proceeded to bring fire, Bharat felled her and forcibly committed rape on her. The other accused Loku stood guard at the door of the house. The girl's mother Saniyabai (P. W. 3) unexpectedly returned to the house and on entering inside the house, she found to her dismay that Bharat was copulating with her daughter, Saniyabai tried to catch hold of Bharat, but Bharat freed himself from her hold. Both the accused then ran away. ( 3 ) APPELLANT Bharat was charged with commission of offence under S. 376, I. P. C. , while the other accused Loku was charged with offence under S. 376/34, I. P. C. Learned Additional Sessions Judge acquitted accused Loku but convicted and sentenced appellant Bharat as described in the opening paragraph. ( 4 ) THE finding given about age of the prosecutrix Mst. Birniyabai (P. W. 2) by the trial Judge was that she was a major girl aged more than 18 years on the date of the alleged incident. Appellant Bharat as well as prosecutrix Birniyabai are both Gonds coming from the same village. Both were unmarried and the appellant was also of compatible age of 25 years. In cross-examination of Birniyabai on behalf of the appellant it suggested that appellant was intimate with the prosecutrix. It is evident that crucial question for determination was whether it was satisfactorily proved by the prosecution that Mst. Birniyabai was not a consenting party to the alleged act of sexual intercourse by the appellant with her. In cross-examination of Birniyabai on behalf of the appellant it suggested that appellant was intimate with the prosecutrix. It is evident that crucial question for determination was whether it was satisfactorily proved by the prosecution that Mst. Birniyabai was not a consenting party to the alleged act of sexual intercourse by the appellant with her. ( 5 ) NO doubt, prosecutrix Birniyabai (P. W. 2) deposed that sexual intercourse committed by the appellant with her was without her consent and in fact against her will. She went to the length of stating that she was forcibly thrown down on the floor resulting in non-bleeding injuries to her back. She deposed that she had received injuries even in her private parts. This was belied by the medical report (Ex. P. 7) in which it was clearly stated that no marks of injuries were present any where on the body of the prosecutrix. It was also stated that no marks of violence were present over the genitals. The report went on to state that the prosecutrix was habituated to sexual intercourse since there was old haled tear of hyman. It is no doubt true that the lady doctor who gave that report could not be produced by the prosecution and the trial-Court closed the prosecution's right. In that sense the report, although exhibited as Ex. P. 7 in other evidence, could not be said to be proved. ( 6 ) WITH respect to a document which is a prosecution document but remains unproved, the legal position appears to be that the prosecution cannot utilise that document for proof of its story but is would be wrong to deny the defence its user if it supports the defence in any manner. In Sheo Prasad v. Emperor AIR 1938 Nagpur 394 F. I. R. was not proved by the prosecution. It was held that the defence could not be shut out from using that document merely because the prosecution had not formally proved it. If the prosecution wished to imply that the F. I. R. was a garbled document, it should have given evidence to that effect. In the absence of such evidence, the defence could legitimately make use of that document. Another case Samedas v. State of M. P. , 1969 Jab LJ (SN) 54 also related to an unproved F. I. R. It could not also be exhibited in the ease. In the absence of such evidence, the defence could legitimately make use of that document. Another case Samedas v. State of M. P. , 1969 Jab LJ (SN) 54 also related to an unproved F. I. R. It could not also be exhibited in the ease. It was held in that decision that the prosecution could not be allowed to use the F. I. R. because it had remained unproved. But even so it was open to the defence to make use of it, if it supported the defence in any manner. In the case in hand, the medical report (Ex. P. 7) was exhibited in the evidence of Investigating Officer Shri Choudhary (P. W. 11), who expressly stated in his evidence that the said report Ex. P. 7 was brought to him from the hospital by constable Santudas. The question therefore, that it was a garbled or suspicious document is out of question. The same can therefore, be legitimately made use of by the defence. 6a. Another significant circumstances of the case was that Saniyabai (P. W. 3), the mother of the prosecutrix, appears to have come back to the house when she was not supposed to. She had in all probability surprised her daughter when she came back to the house at 4. 00 p. m. There is evidence to show that the father of the prosecutrix returned only at dusk time. The evidence of Saniyabai (P. W. 3) is that when she entered inside the house she found the appellant on the top of her daughter actually copulating. When the prosecutrix had been found but in that position, what else could she have stated except that she was being ravished and that there was no blame on her part? Underlining the need for corroboration of the statement of a woman who has attained majority and was found in a compromising position, the Supreme Court has the following to say in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 "corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. " ( 7 ) AN element of improbability creeps into the prosecution story inasmuch as the version of Birniyabai (P. W. 2) was that her mother entered into the house from the same door at which accused Loku was standing on guard. In that case, why could not Loku raise shouts or give signal to those inside the house or at least to the appellant who had allegedly intruded into the house? On the other hand, the prosecution story is that the appellant was found out by the mother of the prosecutrix as having actual carnal knowledge of her daughter. ( 8 ) THE reason why a report of the incident was at all made was also indicated in the case. It has appeared in the evidence that a Panchayat was held in the wake of the alleged incident. In that Panchayat, Panchas suggested to the parents of the prosecutrix that the prosecutrix should be married to the appellant. It is the evidence of the prosecutrix herself that she was not willing to marry the appellant. The argument of the learned counsel for the marriage only because the boy and the girl were previously having an affair and were found out in a compromising position resulting in a scandal in the village. It was vehemently urged that Panchas would not have advised for marriage in the case of ravishment and rape, in which case the Panchas would have advised for immediate lodging of the report. It was also argued that it is one thing for a woman to have a desire to have sexual adventure with a man and quite a different thing for that woman to desire to have marriage with that man. This explains, according to the learned counsel for the appellant, why the prosecutrix despite having intimacy with the appellant and having had sexual adventure with him, refused to get married with the appellant and told so to the Panchas. The learned counsel also complained that none from the Panchayat was actually examined by the prosecution to say what exactly transpired at that time. Be that as it may, it has appeared in the evidence that in that Panchayat the mother of the prosecutrix had hurled abuses at the appellant and the appellant getting aroused had slapped that woman. The learned counsel also complained that none from the Panchayat was actually examined by the prosecution to say what exactly transpired at that time. Be that as it may, it has appeared in the evidence that in that Panchayat the mother of the prosecutrix had hurled abuses at the appellant and the appellant getting aroused had slapped that woman. The matter having taken such an ugly turn, the mother of the prosecutrix took her daughter to the police station and got the matter reported. The report, Ex. P. 5, was itself lodged by the prosecutrix after not a little delay. The police station was hardly 3 kms. from the village of the occurrence. The incident had allegedly occurred at 4. 00 p. m. on 3-2-84 while the report thereof was lodged, not in the night itself of 3-2-84 or in the morning of 4-2-84, but at 14. 30 hours on 4-2-84, i. e. after a lapse of about 22 hours from the time of the alleged incident. ( 9 ) THE trial Court wrongly sought to take the aid of the presumption given in, what it called, S. 114 of the Evidence Act. The trial Court stated that the presumption is that if a woman says that she did not consent, it should be presumed that she did not consent unless that presumptions was rebutted by the accused. Perhaps the trial Court meant S. 114-A and not S. 114. Even that presumption would apply, among other situations, to a case of gang rape and not to a case like the present one where the appellant was alleged to have alone raped the prosecutrix. In the case of a grown up woman, as the prosecutrix in the present case was, the Supreme Court has observed that it is very difficult for any person to rape single handedly without meeting with stiffest possible resistance from the woman. The following observations in paragraph 8 of the report in Pratap Mishra v. State, AIR 1977 SC 1307 : (1977 Cri LJ 817) are pertinent (Para 8):. "the opinions of medical experts show that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting stiffest possible resistance from her. The following observations in paragraph 8 of the report in Pratap Mishra v. State, AIR 1977 SC 1307 : (1977 Cri LJ 817) are pertinent (Para 8):. "the opinions of medical experts show that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting stiffest possible resistance from her. " ( 10 ) IN fact, it was also the evidence of the prosecutrix that she had put up resistance but the appellant committed sexual intercourse despite the same accompanied by great force and violence. If that were really so, it was proper to expect that some injuries should have been found either on the prosecutrix or on the appellant. But as already indicated, no injuries of any kind were found either on the prosecutrix or on the appellant. This is rather an important circumstance which negatives the story of rape. ( 11 ) TO sum up, the prosecutrix as well as the appellant were both Goads coming from the same village. They were both unmarried and of matching ages. The prosecutrix, although unmarried, was quite experienced. She was accustomed to sexual intercourse. She was aged grown up major girl little above 18. She had stayed put alone in her house while all others had gone away to a fair. In all probability the mother of the prosecutrix had unexpectedly arrived back at the house and had caused a surprise, when the appellant and the prosecutrix were found to be actually copulating inside the house. It was not unnatural on the part of the prosecutrix at that time to strike a pose of injured innocence. The prosecutrix had absolutely no kind of injuries on her person to suggest that she had put up any kind of resistance. The matter took an ugly turn in the Panchayat when the appellant slapped the mother of the prosecutrix. Perhaps explaining why the report was at all made after some delay. In this scenario, it is extremely doubtful if the appellant had allegedly carnal knowledge of the prosecutrix without her consent or against her will. The prosecution story must be held to have failed. ( 12 ) IN the light of the foregoing discussion, the appeal deserves to be, and is allowed. The conviction and sentence of the appellant under S. 376, I. P. C. are set aside. He is acquitted of the offence. The prosecution story must be held to have failed. ( 12 ) IN the light of the foregoing discussion, the appeal deserves to be, and is allowed. The conviction and sentence of the appellant under S. 376, I. P. C. are set aside. He is acquitted of the offence. He is on bail. His bail bond shall stand discharged. Appear allowed. .