S. Talapatra, J;- This appeal is directed against the judg­ment and order dated 11.11.08 as passed by the learned Sessions Judge, South Tripura, Udaipur in Sessions Trial No.15(S.T./U)/2008 convicting the appellant under Section 376 (1) and Section 448 IPC and sentencing him to suffer rigorous imprisonment for 10 years with fine of Rs.2,000/-, in default of payment of fine, to suffer further rigorous im­prisonment for one year and to suffer six months rigorous imprisonment with fine of Rs.500/-, in default of payment of fine, to suffer further rigorous imprisonment for one month. Both the sentences were directed to run concurrently. 2. The prosecution case, in brief, is that on 31.5.07 at about 11 am, the appellant Narayan Das alias Buchya entered into the dwelling hut of the informant, the mother of the prosecutrix, in her absence and had for­cibly committed rape on her daughter who had been sleeping in the said hut during that period. She asserted that the appellant had put his palm over her daughter's mouth and forcibly committed rape on her for which she had sustained serious bleeding injury in her vagina. The prosecutrix was staying alone in her hut when the informant had gone to Garjee market for purchasing some commodities. After commission of the offence, the appel­lant had come to intimate her that her daugh­ter i.e the prosecutrix had been suffering from abdominal pain and urged her to return home immediately. The informant, PW1 also as­serted that initially the prosecutrix did not dis­close the matter to anyone out of shame. For the first time, the prosecutrix disclosed the incident to the Medical Officer who attended her in the TSD hospital in presence of the in­formant and others. On the basis of such dis­closure, the first information report was lodged before the Officer-in-Charge of R.K. Pur po­lice station being R.K. Pur PS case No. 134 of 2007 under Section 448/376(1) IPC. On completion of the investigation, the police filed the chargesheet against the present appellant as they found a strong prima facie case on the basis of the materials collected in the course of investigation. After the cognizance was taken, the case was committed to the learned Sessions Judge, South Tripura, Udaipur. On completion of the investigation, the police filed the chargesheet against the present appellant as they found a strong prima facie case on the basis of the materials collected in the course of investigation. After the cognizance was taken, the case was committed to the learned Sessions Judge, South Tripura, Udaipur. The following charges were framed:-"Firstly, that you on 31.5.2007 at about 1100 hours at Garjee (Patacherra) under PS R.K. Pur, Sub-Division Udaipur, South Tripura commit­ted house trespass by entering into the house of the complainant which used as a human dwelling with intent to commit rape/hurt Kumari Ratan Devi jamatia and yhou thereby commit­ted an offence punishable under Section 448 of the Indian Penal Code and within my cogni­zance. Secondly, that you on the same date, time and lace did commit rape upon Kumari Ratan Devi Jamatia by force and you thereby commit­ted an offence punishable under Section 376(1) of the Indian Penal Code and within my cognizance. The appellant pleaded not guilty and claimed to be tried. The prosecution adduced as many as 11 witnesses including the Inves­tigating officer and brought on evidence 11 documents as Ext.1,1/1,1/2 & 2-11. 3. Mr. S. Datta, learned counsel appear­ing for the appellant submits that from a close scrutiny of the evidence, it would be appar­ent that the appellant has been convicted with­out any legal evidence. On the face of such submission, this court had glimpses at depo­sitions of the witnesses. 4. It appears that PW 1, the informant, mother of the prosecutrix stated that on 31.5.07 when she was at Garjee market she was informed by the appellant that her daugh­ter was suffering from abdominal pain. The appellant also paid her Rs. 100/- for treatment of her daughter. She also purchased medi­cine incurring Rs.20/- from one Kari doctor. She returned home and administered the medicine, but the pain did not subside. She had to decide for shifting the prosecutrix to the TSD hospital with help of one brother-in-law of the appellant, namely, Maruti, Rekha and the appellant. On the query of the Medi­cal Officer, the prosecutrix for the first time disclosed that the appellant had committed rape on her forcibly and she was excessively bleeding in her vagina. PW 1 further stated that the Medical Officer had to stitch her pri­vate part. On the query of the Medi­cal Officer, the prosecutrix for the first time disclosed that the appellant had committed rape on her forcibly and she was excessively bleeding in her vagina. PW 1 further stated that the Medical Officer had to stitch her pri­vate part. On such disclosure, PW 1 rushed to the R.K. Pur police station where she lodged the FIR on the basis of the statement of the prosecutrix. She admitted in cross-ex­amination that one Rekha who used to reside in the same house adjoining to her room. She admitted that she was having a single dwell­ing hut in the house of one Rabi Noatia. Her old aged mother was living with them. She stated further that her daughter Ratan Devi was not married and was residing with them. She admitted that she had taken her daugh­ter, the prosecutrix to the TSD hospital with the vehicle of the appellant. The deposition of PW 2, the prosecutrix, occupies the pivot for understanding the present case. She stated that while she was sleeping, the appellant had entered their dwelling hut and put palm over her mouth and forcibly raped on her against her will and consent. After commission of rape, the appellant fled away. She asked her next door neighbour Rekka Marak to come her place. But, she did not disclose anything to Rekha or to her mother. She requested Rekha to inform her mother that she was suf­fering from excruciating abdominal pain. But on return of her mother, she did not disclose anything to her. Thereafter, when she was brought to the TDS hospital she disclosed to the query of the Medical officer that the ap­pellant had committed rape forcibly on her. At the time of disclosure, her mother, Rekha and two nurses were also present there. It is to be recorded here that her statement in the same line was also recorded under Section 164(5) CrPC and that statement has been marked as Ext. 1 series. She also identified the petty coat which was seized by the police officer on preparing the seizure list. In cross-examination, she denied all the suggestions of the defence that the appellant did not commit rape or that the appellant did not enter into their dwelling house as alleged. PW 3, Rekha Marak is the only in dependent witness who was in a position to shed some light for un­veiling the truth. In cross-examination, she denied all the suggestions of the defence that the appellant did not commit rape or that the appellant did not enter into their dwelling house as alleged. PW 3, Rekha Marak is the only in dependent witness who was in a position to shed some light for un­veiling the truth. She stated that about one year back from the date of recording the deposition, the prosecutrix had asked her to intimate her mother that she was suffering from abdominal pain. PW 3, on turn, requested the appellant to communicate to the mother of the prosecutrix who at the relevant time was at Garjee market. On return, she took her to the TSD hospital for treatment and PW 3 accompanied. In cross-examination, she also revealed as follows :- "I was not present when the prosecutrix had narrated the entire matter to the medical officer. The mother of the prosecutrix was with her daughter when she had narrated the matter to the medical officer. The mother of the prosecu­trix had stated to us the said fact after coming out from the examination room." She further stated that the grand mother of the prosecutrix could see and hear and she could also walk. Jatan Devi, the sister of the prosecutrix was also present there at the rel­evant time. She categorically stated that she did not see the appellant to visit the dwelling hut of the prosecutrix though she was present in that house at the relevant time. PW 4 Smt. Mallika Noatia, is a hearsay witness and the prosecutrix and the informant were their ten­ants. P W 5 Sri Rabi Noatia is also a hearsay witness to the occurrence and the landlord. He stated that his house was bifurcated by bamboo fencing with that of P W1. He stated that he did not hear anything from the mother of the prosecutrix. PW 6 Smt. Dipali Das stated that the appellant and the prosecutrix were her next door neighbours whereas P W 7 Sri Gautam Sarkar was the Judicial Magis­trate who recorded the statement of the pros­ecutrix under Section 164(5) CrPC, Exbt. 1 and he proved the statement before the court. PW 8 Sri Debjan Chakma was the recording officer who received the First Informant Re­port from PW 1 on 31.5.07 and endorsed the case to S.I. Mafru Mog Choudhury. 1 and he proved the statement before the court. PW 8 Sri Debjan Chakma was the recording officer who received the First Informant Re­port from PW 1 on 31.5.07 and endorsed the case to S.I. Mafru Mog Choudhury. He revealed that he recorded the oral statement and on having read over the same to the P W 1 and obtained her thumb impression thereon, he registered the case as aforesaid. P W 9 Dr. Salil Bindu Chakraborty to whom, it had been stated, the prosecutrix made the first disclo­sure of commission of rape. There is a con­tradiction of serious nature between the state­ments of PW1 and PW 9. PW1 stated that after the disclosure being made to P W 9 she had rushed to the police station for filing a case whereas PW 9 stated that on 31.5.07, he was posted as Medical Officer in TSD hospital, Udaipur and on that day, the pros­ecutrix was produced before him in connec­tion with R.K. Pur PS case No. 134 of 2007 for her examination. The deposition of P W 9 as made in the court is usefully extracted here-under :- "Whole undergarments of the prosecutrix was soaked of blood. I did not find any external injury. No other external injury except a trans­verse tear in the posterior vaginal vault 1 /2 inch x Vi inch which is bleeding profusely. On examination by the Pathologist, TSD hospital it appeared that there was spermato­zoa in the vaginal swab of the prosecutrix. This is the report in the prescribed form which also bears my signature marked Ext.5 including sig­nature. In my opinion, the victim had sexual in­tercourse and had vaginal vault tear." In cross-examination, P W 9 stated further that the prosecutrix had experience of earlier sexual intercourses or else she would not have got her hymen in tear condition. He categori­cally stated that the torn hymen was not a fresh injury. However, he denied the sugges­tion that the injury i.e vaginal vault tear was not because of forcible commission of rape. He also revealed that the vaginal swab of prosecutrix was sent by him for pathological examination to the Pathological department of the same hospital. In this regard, the state­ment as recorded by PW 9 in his medical examination report (Exbt.5) is required to be considered with caution. He also revealed that the vaginal swab of prosecutrix was sent by him for pathological examination to the Pathological department of the same hospital. In this regard, the state­ment as recorded by PW 9 in his medical examination report (Exbt.5) is required to be considered with caution. He had written in that report that at about 11 am on 31.5.07, the patient was sleeping in her house, "an adult male person came to the house and forcibly did culvering with her". The doctor found the undergarment was soaked with blood. From the report it evinces that no external injury was seen. It has also been recorded that the patient was brought to the hospital in supine condition. He did not give any specific opin­ion regarding commission of rape, rather he opined as under: "With these available testings, it is opined that the victim had sexual intercourse and had vaginal vault tear." PW 10 Dr. Debasis Roy who was posted as the Medical Officer in the Pathological department of TSD hospital, Udaipur stated that he examined the vaginal swab of the pros­ecutrix and found that "few motile sperm in the vaginal swab of the prosecutrix." He marked the report as Exbt.6. PW 11, Mofru Mog Choudhury, the Investigating officer, stated that: "I also seized the wearing apparels of the accused after preparing a seizure list in pres­ence of witnesses. This is the said seizure list marked Extbt. 11 and this is my signature on it marked Exbt.11/1. I arrested the accused on 1.6.2007 and produced him before the Ld. CJM, South Tripura. I also sent him to the Medical Officer of TSD Hospital for examination of po­tency. I also sent the seized articles to forensic science laboratory, Agartala for examination. I also sent the prosecutrix to the court for re­cording her statement under Sec. 164(5) CrPC. After collecting the medical report and other examination reports from the authority I found that there was a prima facie case against the accused Narayan Das @ Buchya for which I filed chargesheet against him." From the statement of PW 11, it is seen that wearing apparels of the prosecutrix were seized by the Investigating officer. 5. Mr. S. Datta, learned counsel appear­ing for the appellant has taken this court to the seizure list whereby the wearing apparels of the appellant were also seized, but those were not sent for forensic examination. Fi­nally, Mr. 5. Mr. S. Datta, learned counsel appear­ing for the appellant has taken this court to the seizure list whereby the wearing apparels of the appellant were also seized, but those were not sent for forensic examination. Fi­nally, Mr. Datta would contend that the pros­ecution has failed to prove the charges be­yond reasonable doubt and as such the ap­pellant is entitled to get the benefit of doubt. Apart that, he submitted emphatically that from wholesome appreciation of the conduct of the prosecutrix as well as the conduct of the appellant immediately in the aftermath of the occurrence, it would emerge that the pros­ecutrix was consenting. Later on, the pros­ecutrix cooked up the story of rape by impli­cating the appellant for protecting her dignity. He strenuously argued that if there were no injury in the vagina and the prosecutrix were not required to be taken to a doctor, there would have been no disclosure. He urged thereupon that the appellant did not commit any offence as charged. On wrongful appre­ciation of the evidence, he has been convicted and sentenced as stated. In support of his contention, Mr. Datta, learned counsel for the appellant relied a few decisions as well. 6. In the case of Mantu Das Vs. State of Assam as reported in (2007) 4 GLR 497, it has been observed in paras 13 and 14 that the prosecutrix did not raise hue and cry when she was sexually assaulted by the appellant. Even from the evidence of the doctor, it was also clear that she was habituated to sexual intercourse. That being the position that court was of the considered view that no case was made out by the prosecution to convict the appellant under Section 366/376IPC and the conviction and sentence as imposed by the learned Sessions Judge was interfered with and set aside on that reason. The another decision of this court in Indrajit Chandra Nath Vs. State of Assam as reported in (2007) 4 GLR 89, it was observed that the evidence of prosecutrix cannot be accepted as trustworthy and reliable at once. The another decision of this court in Indrajit Chandra Nath Vs. State of Assam as reported in (2007) 4 GLR 89, it was observed that the evidence of prosecutrix cannot be accepted as trustworthy and reliable at once. Drawing the attention to the deposition of the pros­ecutrix it was contended in that case that on the ghat itself many people were present in­cluding an operator of the boat and it was really amazing that such an offence of rape could be committed upon the prosecutrix in such place unless she permitted and con­sented to such act to the appellant. More so, there was no whisper in the medical evidence as regards any bodily injury on her person. On such premises and having a reference to the case of Yerumulla Latchaiah Vs. State of U.P. as reported in (2006) 9 SCC 713 , it was held that since the medical evidence was inconsistent with the evidence of prosecutrix, her evidence belied the plea that on the basis of the sole testimony of the prosecutrix, the conviction could be maintained. In Abbas Ahmed Choudhury Vs. State of Assam as reported in 2010 AIR SCW1917 it is held by the Apex court that even though the testi­mony of the prosecutrix could be relied for purpose of convicting the person accused of rape but the principle that the prosecution has to prove its case beyond reasonable doubt. Even thereafter applies that there cannot be any presumption to prove its case that all the time the prosecutrix would tell the entire story truthfully. For appreciation of the ratio as de­cided in the said case, the para 5 (Abbas Ahmed Choudhury, supra) is extracted here-under: "We are, however, of the opinion that the involvement of Abbas Ahmad Choudhury seems to be uncertain. It must first be borne in mind that in her statement recorded on 17th September, 1997, the prosecutrix had not attrib­uted any rape to Abbas Ahmad Choudhury. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categori­cally stated that while she along with Mizazul Haq and Ranju Das were returning to the vil­lage that he had joined them somewhere along the way but had still not committed rape on her. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categori­cally stated that while she along with Mizazul Haq and Ranju Das were returning to the vil­lage that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Choudhury as well, but in the light of the aforesaid contradic­tions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Choudhury too had been apprehended and taken to the police station by PW 5 Ranjit Dutta the Consta­ble. The Constable, howeve, made a statement which was corroborated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the pros­ecutrix had been brought to the police station as Abbas Ahmad Choudhury had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhury was perhaps not in the car when the complainant and two of the appel­lants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhury is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consid­eration, but, at the same time, the broad princi­ple that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully." 7. In Amar Bahadur Singh Vs State of U.P. as reported in 2011 CRI.L.J. 1921,the prosecutrix was 26 years of age as on the date of the incident and was the mother of seven children and the very fact that the rape had been allegedly committed in her house not only in the presence of her children and other family members. This piece of fact, the Apex Court considered on the question of acceptability of the version of the prosecutrix and for ascertaining whether she was con­senting or not or the rape was committed for­cibly without consent and will. This piece of fact, the Apex Court considered on the question of acceptability of the version of the prosecutrix and for ascertaining whether she was con­senting or not or the rape was committed for­cibly without consent and will. In Para 5 of Amar Bahadur Singh (supra), it was held- "We find merit in this plea. We find that under the circumstance the possibility that rape could have been committed on her in the pres­ence of so many members in a small house is difficult to believe. On the contrary, the find­ings of the high Court that the prosecutrix was a consenting party appear to be correct and it was perhaps when the accused and the pros­ecutrix had been caught red-handed that the story of rape had been cooked up. to salvage some of the family honour. This is often the tendency in such matters...." 8. In the celebrated case, Dilip & Anr. Vs. State of M.P as reported in (2001) 9 SCC 452 the Apex Court held the following points while setting aside the conviction of accused-appellants:- "(i) It is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that the testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corrobora­tion should be present to the mind of the Judge, (ii) In the instant case, the age of the pros­ecutrix was around 16 years, and therefore, she was not just a child who would have surren­dered herself to a forced sexual assault without offering any resistance whatsoever. Hence, on facts of the case, the "probability factor" oper­ates against the prosecutrix. (iii) Further, the testimony of the prosecu­trix has been contradicted by the medical evi­dence as well as by the version of her maternal aunt (PW 30 to whom she narrated the entire incident soon after its commission. According to the medical opinion, the posecutrix was used to sexual intercourse. The presence of blood­stains on the clothes of the prosecutrix, as stated by her, was also not confirmed by the report of the Forensic Science Laboratory or by the doc­tors who examined her. Thus, the prosecution ; case rests solely on the testimony of the pros-ecutrix and the medical evidence given in the case does not lend any positive corroboration to the testimony of the prosecutrix. Thus, the prosecution ; case rests solely on the testimony of the pros-ecutrix and the medical evidence given in the case does not lend any positive corroboration to the testimony of the prosecutrix. Therefore, in view of the aforesaid contradictions, it is dif­ficult to accept the truthfulness of the version of the proseeutrix of the sexual assault so as to convict the appellants." 9. In State of Chhattisgarh Vs. Derha as reported in (2004) 9 SCC 699 the Apex court held that the testimony of the prosecu­trix can be relied if the court is satisfied that the same does not suffer from incongruity. In Prahllad Nath Vs State of Assam as re­ported in (1994) I GLR 392 this court held that unless there were marks of violence, it would be hardly possible to the court to de­termine whether the force was applied or not. For such a case, it cannot be said to be a case of intercourse without consent. Profitably, the relevant part is extracted here under: "Outwardly, he found that the prosecutrix was well dressed and her clothings were not examined as there was no sign of any external violence. Under these circumstances, it can be a case of having intercourse with the consent of the prosecutrix." 10. In an identical context, in Lalhming-chhuanga Vs State of Mizoram as reported in (2010) 6 GLR 42 this court held that the element of consent is overwhelmingly present in this case and as such the impugned judg­ment of conviction and sentence shall be in­terfered with. 11. hi complete disagreement to the sub­mission as made by Mr.S. Datta, learned counsel for the appellant, Mr. A. Ghosh, learned Addl. Public Prosecutor appearing for the State would contend that from the read­ing of the statement of P W1, PW 2 and P W 9 it would irresistibly emerge that the pros­ecution case has been well established be­yond reasonable doubt. He further submitted that while there is direct evidence of the pros­ecutrix without any sort of contradiction, this court should not look for any corroboration. In other words, he submitted that the judg­ment of conviction and order of sentence should be maintained by this court. 12. He further submitted that while there is direct evidence of the pros­ecutrix without any sort of contradiction, this court should not look for any corroboration. In other words, he submitted that the judg­ment of conviction and order of sentence should be maintained by this court. 12. While sifting the depositions and docu­ments in the evidence, it appeared that the alleged sexual intercourse had taken place in the hut of PW 1 when the door was open and the grand mother of the prosecutrix was within the said hut which was adjoined by two huts of PW 5, PW 6 and PW 3. PW 3 stated that she was all along in the hut and she did not hear anything. She was asked by P W 2, the prosecutrix to inform her mother, PW 1 about her excruciating pain in the abdomen. PW 3 did not state before the court that the appearance of the P W 2 was abnormal, shat­tered or dishavelled in any manner when she met her immediately after the incident. P W 2 stated that the appellant fled away after com­mission of rape which was directly contra­dicted by P W 3 who stated unwaveringly that she sent a message to the mother of the pros­ecutrix through the appellant. Therefore, in the aftermath of the commission of rape, the ap­pellant was very much in that place. Moreo­ver, it can be conclusively availed from the evidence that the appellant informed the P W 1 about the abdominal pain of PW 2 at a market and thereafter he also gave his car for transferring P W 2 to the hospital. None other than PW 1 corroborated this part. It is found in the evidence that there was sexual inter­course and that was admitted by P W 2 to the doctor. Medical evidence also has supported this contention. 13. It is required to be examined what actually the prosecutrix disclosed to the doc­tor. She disclosed to the doctor that an adult male person committed rape on her. Even to the doctor (PW 9), the prosecutrix did not disclose the identity of the person who com­mitted the alleged rape, even though both P W 1 and PW 2 contended that disclosure of name of the appellant was made to the doc­tor. The doctor did not state anything in the court from his memory. Even to the doctor (PW 9), the prosecutrix did not disclose the identity of the person who com­mitted the alleged rape, even though both P W 1 and PW 2 contended that disclosure of name of the appellant was made to the doc­tor. The doctor did not state anything in the court from his memory. He took the support from the note where he recorded the version of the prosecutrix. It appears to this court that to protect the prestige of her and her family, the prosecutrix involved 'an adult male per­son' and her mother lodged the first informa­tion report to the police station on assump­tion basing which the connected police case was registered and on investigation charge-sheet was filed against the appellant. As se­quel, the appellant was convicted by the im­pugned judgment and order. From the attend­ing circumstances, it appears that the version of the prosecutrix cannot be acceptable. In absence of her consent and will, no sexual intercourse could have taken place in such aplace narrated by the witnesses and as dis­cussed. She was consenting. Accidentally she suffered injury in her vagina and she was not in a position to conceal trauma from excruci­ating pain and as a result of which she had to inform her mother P W1 and P W 3 for medi­cal support. Thereafter she narrated a story to maintain her dignity in her family involving the appellant accusing him of committing rape on her to PW 9. It would be evident from the cross-examination of PW9 that there was no external injury whatsoever on her person nor any mark of swelling injury on her mouth. Even though all wearing apparels were seized by the police officer, but there was no indication that they were torn or those bore any mark of violence in any manner. It is no doubt that the sexual intercourse occurred causing injury to the vaginal vault of the prosecutrix, but it is hardly believable that the appellant committed the sexual intercourse without con­sent of the prosecutrix. 14. In view of the above, it can safely be held that the prosecution case is not estab­lished beyond reasonable doubt so far Sec­tions 376 (1) and 448 IPC are concerned. There was no material or evidence to drive home the prosecution case without shred of doubt. 14. In view of the above, it can safely be held that the prosecution case is not estab­lished beyond reasonable doubt so far Sec­tions 376 (1) and 448 IPC are concerned. There was no material or evidence to drive home the prosecution case without shred of doubt. Situated thus, this court is unable to accept the prosecution version and to main­tain the judgment of conviction and sentence as passed by the learned trial court. 15. Accordingly, the impugned judgment and order dated 11.11.2008 is hereby set aside. The appellant is acquitted from the charge on benefit of doubt and he shall be released forthwith if not wanted in any other case. The appeal is, thus, allowed. Return the lower court records immedi­ately.