JUDGMENT : Z.A. Haq, J. 1. Heard learned advocates for the respective parties. 2. The appellant has challenged the judgment passed by the Sessions Court convicting the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentencing the appellant to undergo rigorous imprisonment for two years and to pay fine of Rs. 200/- and in default payment of fine to undergo rigorous imprisonment for 15 days. 3. The case of the prosecution is:- The prosecutrix-Anusayabai was working as labour at the relevant time. The construction site being near the house of the accused, on the night of the incident when the prosecutrix was sleeping in Chhapri, the accused committed rape on her under the threat to kill her. According to the prosecutrix, the accused assured to marry her if she became pregnant and because of his assurance she did not disclose about the incident to anybody. The accused repeated the act on 2-3 occasions. On the report of the prosecutrix, the crime was registered, investigation was undertaken, charge-sheet came to be filed before the Sessions Court. Charges were framed and explained to the accused, the accused did not accept the guilt and claimed to be tried. The learned Additional Sessions Judge conducted the trial and by the impugned judgment concluded that the prosecution has proved that about 8-9 months prior to 13th February, 1996, the accused had committed rape on the prosecutrix and convicted the appellant and imposed sentence. The appellant has challenged the above judgment before this Court. By the order dated 9th November, 2000, the appeal was admitted and the sentence was suspended. 4. With the assistance of the learned advocate for the appellant/accused and the learned A.P.P. for the respondent, I have examined the record. Though the prosecution claimed that at the time of incident, the prosecutrix was minor, the prosecution has failed to establish that the prosecutrix was minor at the time of incident. There is no evidence on record about the age of the prosecutrix at the time of the incident. 5. The prosecution has not been able to prove beyond doubt that the incident had not taken place with consent of the prosecutrix, considering the admission of the prosecutrix that the appellant had repeated the act on 3-4 occasions and the prosecutrix had not disclosed about it to anybody. 5. The prosecution has not been able to prove beyond doubt that the incident had not taken place with consent of the prosecutrix, considering the admission of the prosecutrix that the appellant had repeated the act on 3-4 occasions and the prosecutrix had not disclosed about it to anybody. In paragraph 8 of the impugned judgment, the learned Additional Sessions Judge has recorded that the prosecutrix stated that before going to Court for giving evidence the marriage between the prosecutrix and accused was solemnized in a temple. Shri P.S. Wathore, advocate for the appellant has stated that the appellant and the prosecutrix are living together as husband and wife and are having daughter Rushika aged about 15 years and son Krish aged about 10 years. 6. Considering the evidence on record and the facts, I find that the conviction of the appellant is unsustainable as the prosecution has failed to prove beyond doubt the commission of the offence by the appellant. Hence, the following order:- (i) The appellant is acquitted of the offence punishable under Section 376 of the Indian Penal Code. (ii) The learned advocate for the appellant, on instructions, submits that the appellant is not interested in refund of the amount of fine paid by him. The appeal is allowed in the above terms.