( 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.

( 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. It was held in that