JUDGMENT : AJIT BORTHAKUR, J. 1. Heard Ms. S.K. Nargis, learned counsel for the appellant as well as Mr. P.S. Lahkar, learned Addl. P.P. Assam appearing for the State respondent. 2. This appeal under Section 374 of the Code of Criminal Procedure (‘Cr.P.C.’ for short) is preferred against the Judgment and Order, dated 11.04.2018, passed by the learned Sessions Judge, Morigaon in Sessions (Spl.) Case No. 17/2014, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 20,000/- (Rupees Twenty Thousand), in default, to suffer rigorous imprisonment for 3 (three) months under Section 376 (1) of the IPC. The accused appellant has been further convicted and sentenced to undergo rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 20,000, in default to undergo simple imprisonment for 3 (three) months under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short). It has been directed that both the sentences shall run concurrently. PROSECUTION STORY: 3. The prosecution story, in brief, is that on 11.06.2014 at around 5.30 P.M. while the victim minor girl was waiting for a vehicle at Jalugoti Bus stand to return to her home, the accused appellant boarded her in an Indica Car and took her near a burial ground, which was thickly covered with jungle. Thereafter, the accused appellant took her to the jungle located behind the burial ground and committed rape. It was further alleged that while the victim tried to raise alarm, the accused threatened to kill her. On receipt of the information about the aforesaid incident, the father of the victim went to Morigaon P.S. and lodged an FIR. INVESTIGATION AND TRIAL: 4. On receipt of the above F.I.R. the then Officer-in-Charge, Morigaon Police Station registered a case, vide Morigaon P.S. Case No. 266/2014 under Section 376(2) of the IPC. During investigation, the I.O. visited the place of occurrence, drew up a sketch map thereof and recorded the statement of the victim girl under Section 164 Cr.P.C. The Investigating Officer arrested the accused and remanded him to judicial custody. After completion of investigation, the Investigating Officer laid a charge-sheet against the accused appellant under Section 376(2) of the IPC read with Section 4 of the POCSO Act. 5. After completion of investigation, the Investigating Officer laid a charge-sheet against the accused appellant under Section 376(2) of the IPC read with Section 4 of the POCSO Act. 5. On appearance of the accused appellant, the learned trial Court below furnished copies of the relevant documents as required under Section 207 Cr.P.C. and, thereafter, the case was committed to the Court of learned Sessions Judge, Morigaon for trial. 6. The Court of learned Sessions Judge, Morigaon framed a charge under Section 376(1) of the IPC read with Section 4 of the POCSO Act against the accused appellant. The accused appellant pleaded innocence and claimed to be tried. 7. In order to bring home the charge brought against the accused appellant, the prosecution examined altogether 6 (six) witnesses. After closing the evidence of the prosecution side, the statement of the accused appellant under Section 313 Cr.P.C. was recorded. The accused appellant pleaded innocence and examined no witness in defence. After completion of trial, the learned Sessions Judge, Morigaon convicted and sentenced the accused appellant under Section 376(1) of the IPC and Section 4 of the POCSO Act, as stated above. ARGUMENTS: 8. Ms. S.K. Nargis, learned counsel appearing for the accused appellant, submitted that the appellant has been convicted on erroneous appreciation of evidence led by the prosecution in the case inasmuch as the conduct of the alleged victim girl PW-2 before and during the period of commission of the alleged offence was not taken into consideration and PW-1, the doctor, who examined her, did not find any sign of sexual intercourse. 9. Ms. Nargis further submitted that a perusal of the evidence of PWs. 4 and 5 reveal contradictions with the evidence of PWs. 2 and 3 in material particulars rendering the evidence of latters unreliable. Therefore, Ms. Nargis, learned counsel for the appellant emphatically submitted that the case being not proved beyond all reasonable doubt, the impugned judgment and order of conviction and sentence of the appellant may be set aside. 10. Per contra, Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent, submitted that the learned trial Court has recorded good reasons for convicting the appellant. Mr. Lahkar submitted that even if the evidence of PWs. 10. Per contra, Mr. P.S. Lahkar, learned Addl. Public Prosecutor for the State respondent, submitted that the learned trial Court has recorded good reasons for convicting the appellant. Mr. Lahkar submitted that even if the evidence of PWs. 5 and 6, who are declared hostile, is brushed aside, still in view of the victim minor girl’s (PW-2) unshaken testimony and corroboration of her statement under Section 164 Cr.P.C. are sufficient in law to hold the appellant guilty of the offence. Therefore, Mr. Lahkar submitted that no interference is warranted in the impugned judgment and order rendered by the learned Trial Court. 11. I have given due consideration to the above arguments of the learned counsel of both sides and perused the evidence on record. 12. With regard to the place of occurrence, it appears from the sketch map thereof drawn by the PW-6, Investigating Officer vide Ext. 4 that it was a lonely dense jungle area near a vast graveyard namely Borigaon Kabarsthan jungle located adjoining to Borigaon and Dholthapar villages. 13. On scrutiny of the evidence of the victim girl (PW-2), it transpires that at Tokonabari tiniali, where she was waiting for bus to return home, the appellant, who was known to her, persuaded her to board his Indica vehicle, which was driven by an unknown person, assuring her to drop her at home, but took her to the aforesaid place of occurrence, that is, the jungle area and committed rape after leaving the vehicle with its driver near the said place. She cried out and struggled hard to get rid of the appellant, but none advanced to her help. However, after sometime, two persons appeared at the place and helped her to wear her chunni as well as one of them made a phone call to her father (PW-3) and informed about the incident. Her father (PW-3) learning about the incident from one Kula, his brother-in-law and he (PW-3) rushed to the place of occurrence. The victim narrated the entire incident in her statement under Section 164 Cr.P.C. 14. The victim girl (PW-2) reiterated her aforestated facts in examination-inchief and firmly reaffirmed the same in her cross-examination. The defence absolutely failed to elicit any fact which belies her incriminating evidence against the appellant. Therefore, her (PW-2) evidence inspires the confidence of this Court to rely on it. The victim girl (PW-2) reiterated her aforestated facts in examination-inchief and firmly reaffirmed the same in her cross-examination. The defence absolutely failed to elicit any fact which belies her incriminating evidence against the appellant. Therefore, her (PW-2) evidence inspires the confidence of this Court to rely on it. PW-3, her (PW-2) father and the informant in this case, has corroborated her (PW-2) testimony to the extent of her aforesaid evidence concerning his appearance at the place of occurrence after the incident. 15. Turning to the evidence of PWs. 4 and 5, the independent witnesses, it is noticed that the prosecution declared them as hostile witness and their denial parts of statements given before PW-6, the Investigating Officer (PW-6), were confronted with the Investigating Officer (PW-6). From their evidence, as a whole, it is seen that they have corroborated the evidence of PW-2, the victim girl, that they found her standing in the relevant evening near a burial/cremation ground and they talked with her. Their testimony thus indicates the presence of the victim girl (PW-2) alone near the place of occurrence, that is, as stated by PW-2, immediately after the occurrence, which took place on 11.06.2014 at around 5.30 PM. This incident was promptly reported to the police by filing an FIR vide Ext. 2 by PW-3, her father, and her statement under Section 164 Cr.P.C. was also recorded by the learned Judicial Magistrate, Morigaon on the following day, that is on 12.06.2014 ruling out the possibility of her tutoring. The defence side has failed to elicit any fact in her (PW-2) cross-examination which can be considered to have shaken her testimony in material particulars. 16. Turning to the evidence of PW-1, the doctor, who examined the victim, on 12.06.2014 at 1.30 P.M. did not find any mark of violence and sign of ‘recent forceful intercourse’ on her. It may relevantly be pointed out, as is noted in the impugned judgment, that conviction of the accused can be recorded on the basis of the sole testimony of the victim, if her evidence inspires confidence even in absence of a favourable medical evidence. 17. So far the age of the victim girl (PW-2) is concerned, the victim’s father (PW-3) stated her age to be about 14 years and she was studying in Class-VIII on the day of occurrence. 17. So far the age of the victim girl (PW-2) is concerned, the victim’s father (PW-3) stated her age to be about 14 years and she was studying in Class-VIII on the day of occurrence. The defence has not disputed it in his cross-examination eliciting any fact contrary to it. PW-2, the victim girl stated that at the time of occurrence, she was studying in Class-VIII. Her evidence was recorded on 08.03.2016. The occurrence took place on 11.06.2014. The defence, however, suggested that her age was 19 years at that time, that is ‘present age’ on her aforesaid date of recording evidence. The doctor (PW-1) stated that as per x-ray report, her (PW-2) age was in between 15-16 years. Although no public document was produced and exhibited in the case regarding her age, relying on the report of the radiologist and testimony of the victim’s father (PW-3), it may safely be inferred that on the date of occurrence, the victim (PW-2), who was studying in Class-VIII at the relevant time, was aged below 18 years, that is, a minor. 18. The appellant’s statement under Section 313 Cr.P.C. to the effect that he was innocent, without adducing any evidence in support of such plea of innocence, the same cannot be accepted to be true and reliable in view of the positive evidence of the prosecution witnesses, discussed above, pointing to his guilt beyond all reasonable doubt. 19. The learned counsel for the appellant relevantly relied on the judgment of the Hon’ble Supreme Court rendered in Raja and Others vs. State of Karnataka, (2016) 10 SCC 506 , but it is respectfully stated that the factual matrix in the said appeal was different to the facts and evidence in the instant case and, as such, the principle laid down therein could not be applied. 20. It is, however, noticed that the accused appellant has been awarded punishments separately under Section 376(1) of the IPC and Section 4 of the POCSO Act. It may relevantly be mentioned that Section 42 of the POCSO Act provides for punishment for the offence which is greater in degree. Applying this mandate of the aforesaid provision and on consideration of the degree of the offence, the accused appellant committed, this Court is of the opinion that no separate punishment is required to be inflicted on him under Section 376(1) of the IPC. Applying this mandate of the aforesaid provision and on consideration of the degree of the offence, the accused appellant committed, this Court is of the opinion that no separate punishment is required to be inflicted on him under Section 376(1) of the IPC. Accordingly, his sentence under Section 376(1) of the IPC is set aside, but the sentence under Section 4 of the POCSO Act is affirmed. 21. For the reasons, set forth above, the instant appeal is partly allowed. 22. The appeal is disposed of accordingly. Send back the LCR.