JUDGMENT : Shree Chandrashekhar, J. Two persons, namely, Md. Sarfaraz and Prakash Sharma were named as accused by the informant, namely, Reeta Devi, in her fardbeyan which was recorded on 24.2.2008 at about 23:00 hrs. On the allegation that the above-named accused persons have sexually assaulted minor daughter of the informant aged about 13 months, Katras P.S. Case no. 40 of 2008 was lodged under section 376/34 of the Indian Penal Code. The accused Prakash Sharma was found juvenile on the date of occurrence and, accordingly, his case was separated after a common charge under section 376 (2) (f) of the Indian Penal Code was framed against them vide order dated 4.9.2008. 2. The appellant has been convicted and sentenced to R.I. for life till the rest of his life and fine of Rs. 50,000/- under section 376 (2) (f) read with section 34 of the Indian Penal Code. 3. During the trial, the prosecution has examined thirteen witnesses; the informant is PW-3 and her neighbour, namely Sonia Devi is PW-5. The prosecution has tendered in evidence the Medical Report prepared by Dr. Gayatri Kumari-PW-8 and F.S.L. Report through R.S. Singh- PW-13. The Investigating Officers of the case, namely, Ram Raj Pandey-PW-9 and John Toppo-PW-10 have deposed about registration of the First Information Report against the appellant and the co-accused Prakash Sharma, place of occurrence, medical examination of the victim girl and other objective findings on the occurrence. 4. Mr. Ajit Kumar, the learned counsel for the appellant has contended that: (i) the medical examination report and FSL report do not connect the appellant with the alleged offence, particularly, in absence of his medical examination by a doctor, (ii) seizure of clothes belonging to the appellant is not supported by the evidence of the informant and, (iii) the medical report does not establish sexual assault on the victim girl. The learned counsel for the appellant has relied on the judgment passed by this court in “Bittu Kumar Vs. The State of Jharkhand” (Criminal Appeal (D.B.) No. 580 of 2011). 5. The learned counsel for the appellant has relied on the judgment passed by this court in “Bittu Kumar Vs. The State of Jharkhand” (Criminal Appeal (D.B.) No. 580 of 2011). 5. The learned counsel for the appellant has further contended that infliction of punishment of imprisonment for life till the rest of the appellant’s life, a punishment which was incorporated in Section 376 (2) of the Indian Penal Code vide Criminal Law (Amendment) Act, 2013 and became effective from 3.2.2013, is illegal and, moreover, in view of the mitigating circumstances the infliction of maximum punishment on the appellant is not proper. 6. In her fardbeyan, the informant, the mother of the victim child has stated that on 24.2.2008 at about 19:30 hrs. she was sitting outside her house and her minor daughter aged about 13 months was playing there. At that time the appellant and the accused Prakash Sharma came there. The appellant took her daughter in his lap and by saying that he is taking her for playing took her away. After about 45 minutes when he came back she found her daughter unconscious and drenched in blood. She was wearing the frock from reverse side and there were blood marks on the cloths of the appellant. On seeing this, she started crying whereupon several persons from the neighbourhood came there and they saw blood oozing from the private part of her daughter. Her minor daughter was taken to Jayanti Verma Nursing Home, Lilatand, Katras and her fardbeyan was recorded by the police there. In her fardbeyan she has made a specific allegation that both the accused persons had taken away her minor child on the pretext of playing with her and sexually assaulted her. The informant has been examined in the court as PW-3. In her examination-in-chief, she has again narrated the incident of 24.2.2008. She has stated that at the time of the incident her minor child was aged about 13 months. In the evening both the accused persons had come near her house where she was sitting, watching her daughter playing. Both the accused persons took away her minor daughter on the pretext of playing with her and when they came back she found her daughter unconscious and she was bleeding profusely. In the evening both the accused persons had come near her house where she was sitting, watching her daughter playing. Both the accused persons took away her minor daughter on the pretext of playing with her and when they came back she found her daughter unconscious and she was bleeding profusely. She has again stated that she has seen blood stains on the shirt of the appellant who had thrown his shirt when she queried him about the state of her minor daughter. She has stated about treatment of her daughter by Dr. Jayanti Verma who had referred her to PMCH, Dhanbad. She has also stated that her daughter was referred to Ranchi where she was treated for about two months. She has identified her signature on the fardbeyan. 7. The prosecution witness, namely, Manoj Kumar Gupta- PW-1 has deposed that Reeta Devi and Sonia Devi came running to him in the evening of 24.2.2008, carrying the victim girl in unconscious state. He has seen blood stains on the cloths of the victim girl and blood oozing from her private part. He says that Reeta Devi narrated him the entire story and informed him that Sarfaraz has thrown his blood stained shirt in the courtyard of her house. Another neighbour of the informant, namely, Dilip Sao-PW-4 has deposed in the court that on hearing hulla when he went to the place of occurrence he has seen daughter of the informant drenched in blood. He has also deposed that the informant had narrated the entire story to him and disclosed the name of the accused persons. The mother-in-law of the informant, namely, Leela Devi who has been examined as PW-2 has stated that on 24.2.2008 at 7:30 p.m. she was sitting outside her house and her grandchild aged about one year was playing there. She says that Sarfaraz and Prakash came there and Sarfaraz picked up her grandchild in his lap and when her daughter-in-law asked Sarfaraz said he was going towards the shop. After about one hour when he came back she saw her grandchild unconscious, wearing her frock from reverse side and blood oozing from her private part. Another eye witness to the occurrence is Sonia Devi, who has been examined as PW-5. She has stated that she was sitting at her house door on 24.2.2008 from where she has seen the informant and her daughter. Another eye witness to the occurrence is Sonia Devi, who has been examined as PW-5. She has stated that she was sitting at her house door on 24.2.2008 from where she has seen the informant and her daughter. She has deposed that the appellant and Prakash Sharma came near the house of the informant and took away her daughter on the pretext of playing with her. After about 30-45 minutes when the appellant came back the informant’s daughter was unconscious and she was bleeding profusely. This witness has stated about treatment of the victim girl in the hospital and she says that she knows both the accused persons since their childhood. The daughter of PW-5 has been examined in the court as PW-7. In her deposition in the court, this witness, namely, Aarti Kumari has said that she was playing with the victim girl and at that time their mother were sitting outside the house. She has spoken about both the accused persons coming there, Sarfaraz taking the victim girl away and when he came back the victim girl was unconscious and drenched in blood. 8. PW-1, PW-3 and PW-5 are the persons who have taken the victim girl to the hospital. 9. The evidence of PW-2, PW-3, PW-5 and PW-7 is cogent and consistent. They have given a vivid account of the unfortunate incident that has happened in the evening of 24.02.2008. During their cross-examination, the defence could not elicit anything substantial which could cloud their testimony. Their presence at the place of occurrence is natural and, in fact, there is no serious challenge by the defence on their presence in the evening of the fateful day. They are the eye-witness to the occurrence. According to the prosecution, the incident has taken place between 7:30 p.m. to 8:30 p.m. on 24.2.2018 and statement of the informant was recorded at about 23:00 hrs. at the hospital; both the accused persons were named by the informant in her fardbeyan. The short span of time within which the First Information Report has been lodged eliminates false implication of the appellant in the crime. 10. The ocular evidence led by the prosecution is corroborated by the medical examination report of the victim girl. On 25.2.2008, Dr. at the hospital; both the accused persons were named by the informant in her fardbeyan. The short span of time within which the First Information Report has been lodged eliminates false implication of the appellant in the crime. 10. The ocular evidence led by the prosecution is corroborated by the medical examination report of the victim girl. On 25.2.2008, Dr. Gayatri Kumari-PW-8 has clinically examined the victim girl at 2:55 a.m. and she has observed; “complete perineal tear involving anus and rectum about 1½”, hymen tear and bleeding”. 11. According to PW-8, age of the victim girl was about two years and in her cross-examination she has stated that injuries found on the victim girl cannot be caused by a fall on the road. 12. The offence under section 376 of the Indian Penal Code is a heinous crime. It constitutes a different kind of crime which not only is a physical assault on the victim but it also destroys the whole life and personality of the victim. From the judgments of the Supreme Court, we find that to give effect to the legislative intendment the Supreme Court has gone to the extent to hold that testimony of the victim girl, if it is of such sterling quality which leaves no doubt on commission of the crime by the accused, is sufficient to record conviction under section 376 of the Indian Penal Code. It is also well-settled that absence of spermatozoa is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 of the Indian Penal Code. The victim girl was aged about 13 months and the appellant is a neighbour, well known to the family of the victim child. The prosecution has led evidence through her mother, grand-mother, the neighbour Sonia Devi and her daughter, who according to the prosecution are the eye-witnesses, to prove the charge under section 376 (2) (f) of the Indian Penal Code against the appellant. 13. We have carefully examined the evidences led by the prosecution during the trial in S.T. No. 249 of 2008 and find that the prosecution has established the charge under section 376 (2) (f) of the Indian Penal Code against the appellant. The judgment of conviction of the appellant in S.T. no. 13. We have carefully examined the evidences led by the prosecution during the trial in S.T. No. 249 of 2008 and find that the prosecution has established the charge under section 376 (2) (f) of the Indian Penal Code against the appellant. The judgment of conviction of the appellant in S.T. no. 249 of 2008 is a well-reasoned judgment and we find that no error has been committed by the learned Additional Sessions Judge when he holds that Md. Sarfaraz @ Mohd. Sarafraj, the appellant, is guilty under section 376 (2) (f) of the Indian Penal Code. 14. Section 375 of the Indian Penal Code defines rape. Before the amendment of 2013, the relevant portion of section 376 of the Indian Penal Code reads as under: Section 376 - Punishment for rape.— ………………………………………………………………………………. Sarfaraz @ Mohd. Sarafraj, the appellant, is guilty under section 376 (2) (f) of the Indian Penal Code. 14. Section 375 of the Indian Penal Code defines rape. Before the amendment of 2013, the relevant portion of section 376 of the Indian Penal Code reads as under: Section 376 - Punishment for rape.— ………………………………………………………………………………. (2) Whoever, — (a) being a police officer commits rape— (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. 15. After the amendment, Section 376 (2) of the Indian Penal Code reads as under: “376. 15. After the amendment, Section 376 (2) of the Indian Penal Code reads as under: “376. Punishment for rape.- ………………………………………… (2) Whoever,- (a) being a police officer, commits rape- (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or [***] (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine." 16. The sentence of R.I. for life which shall mean imprisonment for the remainder of natural life has been provided under section 376 of the Indian Penal Code by the Amendment Act of 2013 and it became effective from 3rd February, 2013; the date of judgment of conviction of the appellant is 30th August, 2013. Normally, unless a contrary intention appears a legislation is presumed not to be intended for retrospective operation. In “Ritesh Agarwal Vs. SEBI” reported in (2008) 8 SCC 205 , the Supreme Court has held that ex facie, a penal statute will not have any retrospective effect or retroactive operation. In “Commissioner of Income Tax (Central)-1, New Delhi v. Vatika Township Private Limited” reported in (2015) 1 SCC 1 , the Supreme Court has observed that the idea behind the rule is that a current law should govern current activities and the law passed today should not apply to the events of the past. In “Biswanath Bhattacharya Vs.Union of India” reported in (2014) 4 SCC 392 , the Supreme Court has observed as under: “25. Article 20 contains one of the most basic guarantees to the subjects of the Republic of India. The Article insofar as is relevant for our purpose stipulates two things: (i) That no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence; and (ii) That no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is a well-settled principle of constitutional law that sovereign legislative bodies can make laws with retrospective operation; and can make laws whose operation is dependent upon facts or events anterior to the making of the law. However, criminal law is excepted from such general rule, under another equally well-settled principle of constitutional law i.e. no ex post facto legislation is permissible with respect to criminal law. Article 20 contains such exception to the general authority of the sovereign legislature functioning under the Constitution to make retrospective or retroactive laws.” 17. In “Hitendra Vishnu Thakur & Ors. However, criminal law is excepted from such general rule, under another equally well-settled principle of constitutional law i.e. no ex post facto legislation is permissible with respect to criminal law. Article 20 contains such exception to the general authority of the sovereign legislature functioning under the Constitution to make retrospective or retroactive laws.” 17. In “Hitendra Vishnu Thakur & Ors. V. State of Maharashtra & Ors.” reported in (1994) 4 SCC page 602, by way of Illustration, the principles regarding the ambit and scope of the Amending Act and its retrospective operation were culled out, as under: “(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” 18. Section 376 of the Indian Penal Code is a penal provision. It provides punishment for the offence of rape. Thus, it is a substantive provision and not procedural in nature. By a bare glance at the provisions contained under section 376 of the Indian Penal Code, before and after the amendment, it can be gathered that certain new category of offences have been created and some changes in the existing offence’s have been made. Thus, it is a substantive provision and not procedural in nature. By a bare glance at the provisions contained under section 376 of the Indian Penal Code, before and after the amendment, it can be gathered that certain new category of offences have been created and some changes in the existing offence’s have been made. In fact, the offence under section 376 (2) (f) of the Indian Penal Code before the amendment and after the amendment is quite different – before the amendment rape on a woman under the age of twelve years is an offence under section 376 (2) (f) of the Indian Penal Code whereas after the amendment of 2013, section 376 (2) (f) defines an altogether different type of offence of rape. Under the old provision the maximum punishment for the offence under section 376 (2) of the Indian Penal Code was imprisonment for life, but by the Amending Act of 2013 the maximum punishment under section 376 (2) of the Indian Penal Code has been enhanced. The punishment of rigorous imprisonment for life which shall mean imprisonment for the remainder of natural life is a punishment higher in degree and greater in quantum compared to the punishment of rigorous imprisonment for life. If the punishment provided by the Amendment Act of 2013 under section 376 (2) of the Indian Penal Code is inflicted on an accused who has committed the crime prior to the date of coming into force of the amendment, the punishment would be hit by Article 20 (2) of the Constitution of India. It would amount to taking away a vested protection in a person accused of rape under section 376 (2) (f) of the Indian Penal Code against infliction of any other punishment greater than the punishment of rigorous imprisonment for life. If the provisions under the amended section 376 (2) of the Indian Penal Code by which several new offences have been created and a new punishment greater than what was provided under section 376 (2) of Indian Penal Code prior to the amendment is provided is given retrospective operation, it would entail serious civil consequences also. By implication of an interpretation that the amended section 376 (2) of the Indian Penal Code would be retrospective in operation, an accused would be denied a vested right of consideration of his case for remission, if provided under the State rules/regulations/notifications/resolutions etc. 19. By implication of an interpretation that the amended section 376 (2) of the Indian Penal Code would be retrospective in operation, an accused would be denied a vested right of consideration of his case for remission, if provided under the State rules/regulations/notifications/resolutions etc. 19. In view of the above discussions and the law on the subject, we hold that infliction of punishment of rigorous imprisonment for life till the rest of the appellant’s life inflicted upon him under section 376 (2) (f) read with section 34 of the Indian Penal Code and fine of Rs. 50,000/- is illegal. 20. Prior to the Amendment Act of 2013, the maximum punishment prescribed for the offence under section 376 (2) (f) of the Indian Penal Code was rigorous imprisonment for life with a rider that minimum sentence shall not be less than rigorous imprisonment for ten years, but for the special reasons to be recorded by the Judge. 21. The learned Sessions Judge has held that the appellant has behaved like a wild animal. He was a neighbour and he has sexually assaulted a minor helpless girl aged about 13 months and in the process he has violated the trust of the neighbour. The extent of injury to the minor victim girl as noticed by PW-8 would disclose the brutality with which she has been sexually assaulted by the appellant. May be, it was the first offence of the appellant and he was of young age at the time when he committed the crime, but on weighing the mitigating circumstances viz-a-viz the aggravating circumstances we are not inclined to accept the submission of the learned counsel for the appellant that this is not a case in which maximum punishment should be awarded to the appellant. 22. Accordingly, with the modification in the sentence that the appellant shall suffer rigorous imprisonment for life and fine of Rs. 50,000/- for the offence under section 376 (2) (f) of the Indian Penal Code, Criminal Appeal (D.B.) no. 918 of 2013 is dismissed. 23. Let lower court records be transmitted to the court concerned forthwith.