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4. Caste Certificate Ex. P. 4(A) showing that the prosecutrix belonged to a Scheduled Tribe was seized. Her mark sheet Ex. P. 4{B) and photocopy of her Birth Certificate showing her date of birth as 8-10-1987, were also seized. The prosecutrix was sent for medical examination. Dr. S. Shrivastava P.W. 13 examined the prosecutrix on 4-12-2004 at 2.00 p.m. and found that she had 14 teeth in each jaw. No mark of any external injury was found on her body. On internal examination, it was found that the prosecutrix was menstruating which had commenced from 29-11-2004. Her hymen was intact. No injury was seen on vagina which admitted one finger. Menstrual bleeding was present. Two vaginal slides were prepared and sealed. One white Salwar having multiple reddish brown stains and one cotton navy blue coloured underwear with multiple brownish and white stains, belonging to the prosecutrix were sealed and were handed over to the Constable for chemical analysis. In the opinion of Dr. S. Shrivastava P.W. 13, since the hymen of the prosecutrix was intact and no injury or tear was found in the vagina, sexual intercourse had not been performed i.e. complete penetration had not taken place. For confirmation of the age of the prosecutrix, she advised X-ray though in her opinion, clinically the age of the prosecutrix appears to be between 16 and 17 years. It was stated that final opinion as to age could be given by the Radiologist after the test of ossification was done.

9. It was further urged that the manner in which the prosecutrix, a grown-up girl apparently above 17 years of age had accompanied the appellant to village Laata in Katghora and from there to Bilaspur coupled with the manner in which she spoke to her uncle B. Toppo P.W. 3 on telephone clearly ruled out the possibility that the prosecutrix was kidnapped or abducted with intent to subject her to sexual intercourse by the appellant. It was also argued that an adverse inference ought to have been drawn against the prosecution for non-examination of the mother of the prosecutrix. Lastly, it was urged that the testimony of Dr. S. Shrivastava clearly revealed that the prosecutrix was a fully grown-up woman. Her vagina was intact with no injury on the vaginal orifice. The opinion given by Dr. S. Shrivastava in her testimony that no rape had been committed on the prosecutrix clearly negatived the testimony of the prosecutrix and rendered her unworthy of credit. On these premises, it was urged that the conviction and sentence were liable to be set aside.

10. On the other hand, Shri M.P.S. Bhatia, learned Panel Lawyer argued in support of the impugned judgment and stated that the testimony of the prosecutrix that she was raped twice by the appellant was wholly unrebutted in cross-examination and was therefore worthy of credence. It was also urged that the omission in her case diary statement Ex. D. 1 had not been proved by the defence by examining Assistant Sub-Inspector K. P. Jaiswal P.W. 16 and by cross-examining Assistant Sub-Inspector K. P. Jaiswal P.W. 16 on that point. The report of the Forensic Science Laboratory Ex. P. 14 that presence of semen and human spermatozoa was confirmed on the underwear, salwar and vaginal slides of the prosecutrix as also on the underwear and smear of the glans penis of the appellant corroborated the testimony of the prosecutrix. Therefore, on these grounds, it was urged that conviction and sentence awarded by the learned trial Judge were well founded and called for no interference.

15. Medical evidence of Dr. S. Shrivastava P.W. 13 clearly shows that on 4-12-2004 she did not find any external injury on the person of the prosecutrix. Her vagina was intact. There was no injury mark on the vaginal orifice which admitted only one finger. The prosecutrix was menstruating since 20-11-2004. In paragraph 5 she has clearly opined that since hymen was intact, sexual intercourse had not been committed with the prosecutrix since the penis could not be penetrated wholly inside the vagina. Merely because she has stated that a partial penetration of the penis inside the vagina was possible, no such inference can be drawn in favour of the prosecution. So far as the report of the F.S.L. Ex. P. 14 is concerned, the prosecutrix was found at the house of Bhagirathi on 2-12-2004 and was medically examined after two days i.e. 4-12-2004 by Dr. S. Shrivastava and the appellant was examined on 3-12-2004 by Dr. R. K. Divya P.W. 12. The presence of semen and human spermatozoa on the underwear, salwar and vaginal slides of the prosecutrix cannot be attributed to the appellant because the report of the F.S.L. clearly shows that the stains were not sufficient for Serological examination. The testimony of Dr. R. K. Divya P.W. 12 that there were no semen like stains on the underwear of the appellant also renders the report of the F.S.L. doubtful. In view of the evidence of the prosecutrix and the facts and circumstances mentioned above, the report of F.S.L. Ex. P. 14 does not conclusively establish that the appellant had committed rape on the prosecutrix.