1. This criminal appeal is directed against the judgment of conviction recorded for offence under Section 376 of the Indian Penal Code and sentence awarded i.e. RI for ten years and fine of Rs.1,000/- and in default of payment of fine further RI for one year, by the convicted accused.

2. Case of the prosecution as unfolded during the course of trial is as under :-

2.1 Jageshwar (PW-3) – father of the prosecutrix lodged FIR on 28-11-2001 (Ex.P-3) stating that prior to seven months from 26-10-2001 at 5 p.m. the appellant threatened her daughter / prosecutrix and took her to the courtyard and committed rape on her. It was further stated that on the said date, she was minor and thereafter, the appellant committed sexual intercourse repeatedly by which she became pregnant and was carrying pregnancy of seven months on the date of FIR which was informed to him and thereafter, the meeting of his community was convened and the matter was enquired and FIR is being lodged.

2.2 Police Station Kurud registered offence under Sections 376 and 506 of the IPC against the appellant herein and spot map Ex.P-2 was prepared by the investigating officer. Nazri naksha was also prepared by the Patwari vide Ex.P-3. The accused/appellant was sent for medical examination vide Ex.P-5 and he was medically examined by Dr. V.K. Pandey (PW-10) in which he has opined that the accused was capable of performing sexual intercourse. The prosecutrix was also sent for medical examination vide Ex.P-6 and she was medically examined by Dr. (Mrs.) A. Tripathi (PW-9) in which she has opined that the prosecutrix was carrying pregnancy of eight months. Attendance register Ex.P-4 was produced stating the date of birth of the prosecutrix to be 5-6-1986. The jurisdictional police produced the charge-sheet in which the accused person abjured the guilt and entered into defence. Charges under Sections 376 and 506 Part-II of the IPC were framed against the appellant.

2.3 The prosecution examined as many as ten witnesses in support of its case and exhibited eleven documents, whereas the defence examined Sukhram (DW-1) and Bhikham (DW-2) in support of its case. The trial Court after appreciation of oral and documentary evidence on record, convicted the appellant herein and sentenced in the aforesaid manner finding inter alia that the accused is guilty of committing sexual intercourse with the prosecutrix who was below 16 years on the date of offence. Questioning the said conviction and sentence, this appeal has been preferred.

3. Miss Nirupama Bajpai, learned counsel appearing for the appellant, would submit that the judgment of conviction recorded and sentence awarded is unsustainable and bad in law. She would further submit that admittedly, the prosecutrix (PW-1) is a dumb witness, but she has not been examined in accordance with the provisions contained in Section 119 of the Indian Evidence Act, 1872 (for short, 'the Evidence Act') and her mother Surja Bai (PW-2) was appointed as interpreter to which she was interested to get the appellant convicted and it is natural for a mother to be interested in case of her daughter (PW-1) being raped, therefore, the testimony of the prosecutrix (PW-1) cannot be relied upon to convict the appellant for offence under Section 376 of the IPC. She would finally submit that even otherwise, date of birth of the prosecutrix has not been proved beyond doubt, as only a teacher from the school to prove Ex.P-4 attendance register has been examined and as such the source of entering the date of birth is not proved beyond doubt. Therefore, the impugned conviction and sentence awarded deserve to be set aside.

4. Mr. Dilman Rati Minj, learned Deputy Govt. Advocate appearing for the State/ respondent would support the impugned judgment of conviction and sentence and submit that it is well merited and the prosecution has been able to bring home the offence and the accused appellant has rightly been convicted for the aforesaid offence.

5. I have heard lea