1. The appellant has challenged judgment and order dated 16.09.2005 passed by the Sessions Court, Nagpur (trial Court), in Sessions Trial No. 466 of 2004, whereby the trial Court has convicted the appellant for offence punishable under Section 376 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.500/-.

2. The prosecution case was that about seven months prior to the prosecutrix PW1 submitting oral report to the Police dated 8.7.2004, the appellant (original accused) had caught hold of the prosecutrix when she had gone to a nearby field to answer nature's call. He allegedly removed her clothes and committed forcible sexual intercourse with her. After about eight days, when the prosecutrix had gone to the house of the appellant for viewing television programme, as no other person was present, the appellant again committed sexual intercourse with her. It is relevant that the house of the appellant was adjoining the house of the prosecutrix PW1 and that the appellant was on visiting terms with the family of the prosecutrix PW1. According to the prosecution, after some period when the prosecutrix PW1 started suffering abdominal pain, she was taken for medical examination and it was found that she was pregnant. The prosecutrix PW1 then disclosed details about the said acts of sexual intercourse committed by the appellant to her mother Vanita PW4. Thereafter oral report dated 8.7.2004 was submitted in the Police Station leading to registration of first information report (FIR) against the appellant under Sections 376 and 506 of the IPC. Upon completion of investigation and filing of charge sheet, trial commenced against the appellant.

3. The prosecution examined nine witnesses in support of its case. PW1 was the prosecutrix herself, PW2 Bandu was panch witness for spot panchanama, PW3 Dhondba was the father of the prosecutrix, PW4 Vanita was the mother, PW5 Dr. Harsha medically examined the prosecutrix, PW6 Dr. Anuprita was the Gynecologist who examined the prosecutrix, PW7 was the investigating officer, PW8 was the Village Development Officer of Gram Panchayat and PW9 was the peon working in the Gram Panchayat.

4. The prosecutrix PW1 claimed that her date of birth was 10.09.1989, demonstrating that when the incident occurred she was less than 16 years of age. In order to support the said claim, school leaving certificate and birth certificate from Gram Panchayat were produced. The aforesaid prosecution witnesses PW8 and PW9 were examined to prove the date of birth of the prosecutrix PW1. On the basis of such material, the trial Court found that the date of birth of the prosecutrix was indeed 10.09.1989 and that, therefore, consent was immaterial in the present case, as she was found to be less than 16 years of age. The trial Court also found that the evidence of the prosecutrix PW1 read with the medical evidence on record, was sufficient to prove the case of the prosecution beyond reasonable doubt. On this basis, the trial Court convicted and sentenced the appellant.

5. Mr. Aniruddha Anantha Krishnan, learned counsel appearing for the appellant, submitted that the trial Court had committed error in giving finding to the effect that date of birth as 10.09.1989 stood proved in the present case. It was submitted that the oral and documentary evidence on record on the said point was not sufficient to prove the claim of the prosecutrix PW1. It was submitted that the witnesses PW8 and PW9 had admitted in cross-examination that there were certain over writings in the original register wherein the birth of the prosecutrix PW1 had been recorded by the Gram Panchayat. It was further submitted that the evidence of the prosecutrix as regards the incidents of alleged forcible sexual intercourse by the appellant was vague and that it was not reliable. A specific suggestion had been given on behalf of the defence that the prosecutrix PW1 was having an affair with her own cous