JUDGMENT U.B. Saha, J. 1. By judgment and order dated 12.09.2005 in Case No. S.T. 43(NT/D)/2005 passed by learned Asst. Sessions Judge, North Tripura, Dharmanagar the accused-appellant stands convicted under Section 376 as well as under Section 417 IPC and consequent thereto the accused was sentenced to seven years RI for offence under Section 376(1) and sentenced to suffer SI for one year for the offence committed under Section 417 of the IPC and in addition to the sentence awarded under Section 417 IPC accused was also directed to pay a compensation of Rs. 3 lakhs towards loss/damage/harm of mind, body and reputation of the victim. Aggrieved by his conviction and the sentence passed against him by the learned Asst. Sessions Judge, the accused-appellant preferred this appeal. 2. Heard Mr. S. Chakraborty, learned counsel for the accused-appellant as well as Mr. A. Ghosh, learned Addl. PP for the State respondents. 3. The instant appeal is pending since 2005 but no paper book has been prepared and the matter was not listed till February, 2006. As agreed to by the learned counsel for the parties, accused-appellant has compiled all the evidences and the impugned judgment along with other materials and supplied a copy of the same to the Court as well as to Mr. Ghosh and ultimately the matter was taken up for final hearing on 05.05.2011. 4. The prosecution case, as revealed at the time of trial, in short, is that on 06.12.2004 'X' a woman lodged a written complaint before the learned Sub-Divisional Judicial Magistrate, Dharmanagar alleging, inter alia, that the complainant and the accused both were active workers of the CPI (M) political party and since 1994 both of them came close to each other and the accused used to visit the house of the complainant and gradually love affairs developed between them. In the year 1997, accused made a proposal to have sex with the complainant on the pleas that he will many her. The complainant 'X' did not agree and thereafter in the first part of May, 1997 one night the accused committed sexual intercourse with the complainant 'X' against her will and stated to her not to disclose the same to anybody and at the same time also assured her that he will marry her in future. The complainant 'X' did not agree and thereafter in the first part of May, 1997 one night the accused committed sexual intercourse with the complainant 'X' against her will and stated to her not to disclose the same to anybody and at the same time also assured her that he will marry her in future. In this way the accused had sexual intercourse with the complainant on several occasions and as a result the complainant became pregnant which she realized for the first time in the month of August, 1997. The said pregnancy was terminated by the accused with the help of one Dr. Jayanta Poddar. The accused-appellant further promised that he will marry the complainant and in this way he was able to earn her confidence and thus the complainant became again pregnant, once in the year 1998 and thereafter in the year 2003. Both the pregnancies were terminated by Dr. Jayanta Poddar. 5. Upon receipt of the written complaint, the learned Sub-Divisional Judicial Magistrate, Dharmanagar referred the case of the complainant to the Dharmanagar PS and on receipt of the same the Officer-in-Charge of the Dharmanagar PS registered a case being Dharmanagar PS Case No. 131/2004 under Section 376/420 IPC and on completion of investigation charge sheet was filed against the accused appellant under Section 376/420 IPC. 6. At the trial, the accused appellant pleaded not guilty to the charges labeled against him under Section 376 and 417 IPC. The prosecution examined as many as 11 witnesses including the alleged complainant victim. After recording the evidence of the witnesses produced by the prosecution the accused appellant was-examined under Section 313 of the CrPC. 7. In his cross-examination under Section 313 CrPC, the accused appellant denied to have committed the offence as alleged to have been committed by him, the case of the defence being that of denial no evidence was however adduced by the defence. 8. By the judgment and order dated 12.09.2005 the learned trial Court has convicted the accused for the charges labeled against him and passed the sentence as stated supra, hence the accused-appellant has preferred this appeal. 9. Mr. Chakraborty while urging for setting aside the order of conviction and sentence would contend that the learned trial Court proceeded for conviction not in the basis of the evidence but on the basis of his own emotions. 9. Mr. Chakraborty while urging for setting aside the order of conviction and sentence would contend that the learned trial Court proceeded for conviction not in the basis of the evidence but on the basis of his own emotions. According to him, in a criminal case the prosecution has to prove its case through believable evidence and on the basis of the original documents like prescription produced before the Court to whom the initial complaint was lodged and also subsequent thereto to the investigating authority before filing the charge sheet. 10. He further stated that submission of original documents for exhibiting the same at the trial stage is not permissible as those documents were not the part of the investigation. Not only that, even if for argument sake the documents are admissible then also in the instant case the contents of those documents, i.e. prescriptions were not proved either by the medical officer who has written the same by a person who is acquainted with his handwriting. Therefore, mere exhibiting of the documents would not help the prosecution to prove the case unless the contention made therein is exhibited. 11. Mr. Ghosh in his usual fairness submits that though the allegation made against the accused appellant in the complaint by the prosecutrix are serious in nature but upon going through the evidence on record particularly, the evidence of PW 1, PW 2 and PW 3 it cannot be said that the prosecution has proved its case beyond reasonable doubt. He also admitted that though Dr. Jayanta Poddar was examined but he was not produced by the prosecution and the prosecutrix was not examined medically to prove her virginity. He further submits that in a country like India a woman/girl normally do not come with a plea of rape unless is victimized. In the instant case, complainant-prosecutrix 'X' is the victim of sex by the accused appellant and when she approached the Court of law the Trial Court rightly convicted and sentenced the accused-appellant. 12. The case of the prosecution mainly rests on the testimony of PW 1, complainant-prosecutrix 'X' and a document allegedly a letter written by the accused-appellant. In the instant case, complainant-prosecutrix 'X' is the victim of sex by the accused appellant and when she approached the Court of law the Trial Court rightly convicted and sentenced the accused-appellant. 12. The case of the prosecution mainly rests on the testimony of PW 1, complainant-prosecutrix 'X' and a document allegedly a letter written by the accused-appellant. Accordingly to her, she had a love affair with the accused and both of them belonged to the same political party and that on one night in the first part of 1997 the accused forcefully committed rape upon her without her consent and as a result she became pregnant after three months in the month of August, 1997. She also stated that she had informed regarding her pregnancy to the accused appellant who in turn asked her for abortion and initially she did not agree for abortion but ultimately when the accused appellant promised to marry her, she agreed for abortion and accordingly her pregnancy was terminated by Dr. Jayanta Poddar. She further stated that she again became pregnant in the year 1998 and 2003 and her pregnancy was terminated once by Dr. Jayanta Poddar and once by Dr. Premananda Nath Choudhury. When the accused-appellant was proceeding to marry another girl of Halahali, Kamalpur she contacted the accused but when he refused to keep his earlier promise then she informed the matter to the local CPI (M) party office where the accused was called on. Before the CPI (M) leader the accused took three days time but ultimately he did not marry the complainant prosecutrix 'X'. 13. As the accused-appellant did not keep his promise the prosecutrix 'X' under compelling circumstances filed a criminal case through an advocate namely, Sri Anil Krishna Sharma in the Court of the Judicial Magistrate, First Class, Dharmanagar. She also stated that along with her complaint she also submitted some Xerox copies of the prescriptions and at the time of trial she submitted the original copies before the Court which were marked as Exhibit 2 series (total 14 in nos.) and those letters were written by the accused-appellant to her. 14. In her cross she admitted the fact that there was a love affair between the accused-appellant and her since 1994. She also admitted that she lodged the complaint in the year 2004. 14. In her cross she admitted the fact that there was a love affair between the accused-appellant and her since 1994. She also admitted that she lodged the complaint in the year 2004. Though she stated in her cross inter alia, that she stated to her learned Advocate Sri Anil Krishna Sharma about the place of occurrence where the alleged rape was committed but no such statement is available either in the complaint or in the 161 statement recorded by the 10. She also stated that regarding the alleged rape on her in the year 1997, she did not inform her relatives as the accused instructed her not to disclose the same to anybody. She had disclosed the facts regarding rape on her in the year 2003 by the accused appellant to her sister-in-law Smt. Nilima Dasgupta, PW 3 and not only that she also raised alarm when her father was in the house and besides him no other person was present in the house but her father didnot come to her room and also did not ask her anything. 15. PW 2, Smt. Bina Rani Dasgupta, Mother of the prosecutrix 'X' in her chief stated that about one year back she came to know regarding the pregnancy of her daughter and on being asked prosecutrix 'X' told her that the accused made her pregnant. She called the accused-appellant in her house and the accused-appellant also promised to marry her daughter. In her cross, she stated that while the prosecutrix 'X' narrated the story relating to pregnancy of her, PW 3 her daughter-in-law was not in the house. 16. PW 3, Smt. Nilima Dasgupta, sister-in-law of the prosecutrix 'X' in her chief stated that in the year 2003 the prosecutrix told her she became pregnant by the accused-appellant and the pregnancy was terminated. In her cross, he stated that after termination of the pregnancy of the prosecutrix 'X' she stated the matter to her mother-in-law, PW 2. 17. Other witnesses did not say much more. PW 9 and PW 10 are the police officials. It appears from the record that PW 10 recorded the statement of Dr. Jayanta Poddar under 161 CrPC but the said Dr. was not examined as prosecution witness and for non-examination of the said witness the prosecution has also not given any explanation. 17. Other witnesses did not say much more. PW 9 and PW 10 are the police officials. It appears from the record that PW 10 recorded the statement of Dr. Jayanta Poddar under 161 CrPC but the said Dr. was not examined as prosecution witness and for non-examination of the said witness the prosecution has also not given any explanation. Not only that, even the person who terminated the pregnancy in the year 2003, Dr. Premananda Nath Choudhury was also not examined. 18. From the evidence of PW 1, Prosecutrix 'X' it is also evident that though once the accused-appellant alleged failed to keep his promise she allowed him to commit sexual intercourse for the second time and invited her pregnancy. Not only that, even after termination of pregnancy for the second time she again allowed the accused-appellant to have sexual intercourse with her and make her pregnant for the third time. None of the witnesses have noticed the pregnancy of the complainant-prosecutrix 'X', rather house inmates like mother and sister-in-law, i.e. PW 2 and PW 3 also did not say anywhere in their evidence regarding the pregnancy of the prosecutrix except the fact that they have been informed by the prosecutrix regarding her pregnancy and consequent thereto, termination of pregnancy. The story narrated by the prosecutrix cannot be given more weight in view of the fact that though the alleged rape was committed in the year 1997 but the prosecutrix logged the complaint in the year 2004 and such delay in lodging the FIR is also without acceptable explanation. In Surjan and Ors. v. State of MP reported in 2004 SCC (Cri.) 471 the Apex Court held, "The inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the Court, no question was put to her on that long delay. In a case wherein six indicated persons should be visited with a minimum sentence of 10 years' RI, the Court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. Looking at the testimony of PW 1 from all the different angles highlighted above, we are unable to hold that the testimony is wholly reliable. In such a situation, materials for corroborating the testimony of PW 1 could not be obviated. Looking at the testimony of PW 1 from all the different angles highlighted above, we are unable to hold that the testimony is wholly reliable. In such a situation, materials for corroborating the testimony of PW 1 could not be obviated. But unfortunately there is none." 19. In the case of State of Karnataka v. Mapilla PP Sopi (2003) 8 SCC 202 the Apex Court held, Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence, the High Court was justified in allowing the appeal. 20. In K. P. Thimmappa Gowda v. State of Karnataka AIR 2011 SCW 2281 the Apex Court while considering a case under Section 376 of the IPC noted, inter alia, We are of the opinion that the appellant deserves the benefit of doubt because on careful consideration of the evidence on record, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. The Apex Court also noted that, In criminal cases, the rule is that the accused is entitled to the benefit of doubt. If the Court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty, and the other that he is innocent, then the benefit of doubt goes in favour of the accused. The facts of that case are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child, which means there is a delay of over 8 months in lodging the FIR. The finding of the trial Court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence under Section 376, IPC because sex with a woman about 16 years of age with her consent is not rape. On these facts a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence under Section 376, IPC because sex with a woman about 16 years of age with her consent is not rape. In the instant case also it is evident from the record that the prosecutrix 'X' has sex with the appellant not only once but on several occasions and as a result of which she developed pregnancy, not only once but thrice and before termination of pregnancy she did not disclose this fact to anyone and the FIR was also lodged almost after 7 years. Therefore, the observation of the Apex Court in the aforesaid case can be considered applicable for deciding the case in hand. 21. In the instant case, it appears from the evidence on record that the persons who terminated the pregnancy of the prosecutrix 'X' were neither produced nor examined by the prosecution though one of them was examined under Section 161 of CrPC. More so, even after lodging of the complaint by the prosecutrix 'X' she was not examined medically for proving her virginity before the alleged rape. More so, this Court, after considering the evidence of PW 1 to PW 3 and the conduct of the prosecutrix, is of the considered opinion that even if there was physical intercourse between the prosecutrix 'X' and appellant then also in the said intercourse the prosecutrix seems to be a consenting party (See Lalhmingchhuanga v. State of Mizoram (2010) 6 GLR 42) PW 9, the second 10 in his cross specifically stated that he did not make any arrangement for examination of the victim/prosecutrix by medical officer to find out about her hymen, alleged abortion and pregnancy. In absence of any proof regarding the alleged rape as well as pregnancy it is very difficult to convict an accused for an offence under Section 376 and 417 IPC. When fact remains that the complainant prosecutrix 'X' was at the relevant time of alleged offence at the age of about 23 years and the case was lodged when she attained the age of about 30 years. 22. When fact remains that the complainant prosecutrix 'X' was at the relevant time of alleged offence at the age of about 23 years and the case was lodged when she attained the age of about 30 years. 22. There is no doubt that an offence under Section 376 is serious in nature but unless the said offence is proved it would not be proper for a Court of law to convict a person merely on the basis of oral statement of the prosecutrix unless the same is corroborated with the aid of medical evidence. It appears from the judgment of the learned trial Court that the trial Court did not give much importance on the evidence on record but mainly relied on the decision of the Apex Court which has been referred in the impugned judgment 23. A case law has to be considered on the basis of the facts in hand. Each and every decision of the Apex Court cannot be treated as a precedent. There is no quarrel with the promotion laid down by the Apex Court in the case of State of Maharashtra v. Chandraprakash Kewalchand Jain AIR 1990 SC 658 . The fact of that case is totally different from the case in hand. In the instant case, the prosecutrix 'X' is a participant in sex with the accused-appellant for more than one occasion, i.e. for three times without raising her voice and keeping the incident away from the family members almost for about seven years. Hence, the proposition laid down in Chandraprakash Kewalchand Jain (supra) has no direct bearing in the instant case. The law reports referred by the learned Trial Court also do not have any bearing in the instant case, in view of the conduct of the prosecutrix 'X' as evident from record. 24. In the instant case, as there is no evidence available, particularly regarding the offence of rape and subsequent thereto the pregnancy, according to this Court the prosecution has failed to prove its case beyond reasonable doubt. More so, when there is no foundation for the conviction of the accused either under Section 376 IPC or under Section 417 IPC the order of conviction and sentence of the accused and order of compensation passed by the learned trial Court cannot therefore sustain and must be set aside. 25. In the result and for the reasons discussed above, this appeal succeeds. 25. In the result and for the reasons discussed above, this appeal succeeds. The impugned order of conviction and order of sentence as well as the order of compensation is hereby set aside. 26. As the accused appellant is on bail, his bail bond stands discharged. Send back the LCR. Appeal allowed