ORDER : 1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred by the accused-appellant claiming the following relief: “It is, therefore, most humbly and respectfully prayed that the appeal under section 374 (2) Cr.P.C. filed by the appellant may kindly be accepted and allowed and the impugned judgment passed by the learned Special Judge, Protection of Children from Sexual Offences Act, Churu on dated 09/01/2019 may kindly be quashed and be set aside and it is further prayed that the appellant may be acquitted from the offence u/s. 450 IPC and Sec. 3/4 Special Judge, Protection of Children from Sexual Offences Act, 2012 from the above mentioned charges / offences leveled against him and the appellant may be exonerated from the offences and charges or any other order which is in favour of the appellant may kindly be passed in the interest of justice.” 2. The appellant laid a challenge to the judgment of conviction and order of sentence dated 09.01.2019 passed by the learned Special Judge, Protection of Children From Sexual Offences Act Cases, Distt. Churu, in Session Case No.52/2018 (14/2016) (State of Rajasthan Vs. Pawan Kumar), whereby the accused-appellant has been convicted and sentenced as below: Offence under Section(s) Sentence(s) Fine(s) 3/4, POCSO Act, 2012 Life Imprisonment Rs.5,000 /-, in default of which, to undergo further 06 months S.I. 450 IPC Five Years R.I. Rs.10,000 /-, in default of which, to undergo further 03 months S.I. 3. Brief facts of the case are that the incident took place on 19.07.2015, when the accused-appellant Pawan, who resided in the neighboring house of the prosecutrix, who is said to be 15 years of age and at the time when she was alone at home, came with a mechanic for getting the cooler repaired and asked for a screw driver from the prosecutrix and when she went inside to bring the same, the accused made her smell something and she became unconscious, thereafter he committed rape upon her. While such act was taking place, mother of the prosecutrix returned home and the accused ran away. 3.1. While such act was taking place, mother of the prosecutrix returned home and the accused ran away. 3.1. On the basis of the aforementioned information, an FIR bearing No.49/2015 (Ex.P-2) dated 19.07.2015 was registered at the Police Station Mahila Thana, District Churu for the offence under Sections 376 of IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act, 2012’) and the investigation commenced thereafter. After investigation, the police filed a charge-sheet in the concerned court for the offences under Sections 450 & 376 of IPC and Section 4 of the POCSO Act, 2012. The learned Trial Court framed charges against the accused-appellant under the aforementioned provisions of law; the said charges were read over to the accused-appellant, which he denied and claimed to stand due trial and the trial commenced accordingly. 3.2. During the course of trial, the prosecution produced witnesses (PW-1 to PW-8) and got exhibited the documents (Ex.P-1 to Ex.P-14), whereafter, the accused-appellant was examined under Section 313 Cr.P.C., in which he pleaded innocence and his false implication in the criminal case in question. 3.3. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellant, as above, vide the impugned judgment of conviction and order of sentence dated 09.01.2019 against which the present appeal has been preferred by the accused-appellant. 4. Mr. Hastimal Saraswat, learned counsel for the accused-appellant submits that neither was there any kind of brutality, nor was there any kind of force which had been used by the accused-appellant. 4.1. Learned counsel submits that the minimum imprisonment for the offence under Section 3 of the POCSO Act, 2012, as provided under Section 4 of the POCSO Act, 2012 (prior to the amendment of the year 2019) is not less than seven years; the same reads as under:- “4. Punishment for penetrative sexual assault.— Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.” 4.2. Punishment for penetrative sexual assault.— Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.” 4.2. Learned counsel further submits that though Section 4 of the POCSO Act, 2012 stood amended in the year 2019, but at the time when the offence in question was committed in the year 2015, Section 4 of the POCSO Act as quoted above was fully applicable. He also submits that any retrospective applicability of the amendment of 2019 in Section 4 of the POCSO Act is not permissible under the law. 4.3. He produced the custody report, which indicates that the appellant had undergone a total custody of 08 years, 02 months & 21 days as on 03.01.2023 and thereafter about 01 year and 09 months have passed, and therefore, the custody period of the accused-appellant is almost 10 years by now. 4.4. Learned counsel however, makes a limited prayer that rather than going into the merits of the case, looking to the peculiar factual matrix and taking into consideration the minimum punishment i.e. seven years imprisonment for the offence in question, the life imprisonment as awarded to the accused-appellant vide the impugned judgment, may be reduced to the custody period (i.e. almost 10 years) already undergone by him. 4.5. Learned counsel for the appellant has drawn attention of this Court to the medical report of the prosecutrix, which indicates that there was not even a single injury on her body, however, he fairly submits that it was a case where the hymen was torn and thus intercourse cannot be ruled out. He has also drawn attention of this Court towards the statement of the prosecutrix recorded under Section 164 of Cr.P.C. (Exhibit-5), in which the prosecutrix stated that the accused came in her house in the pretext of getting a screw driver and despite her telling him not to indulge in such act, he committed rape upon her and it was only when her mother came, that he ran away. 5. On the other hand, Mr. C.S. Ojha, learned Additional Government Counsel submits that POCSO is a law, which requires a strict scrutiny by the Court. 5. On the other hand, Mr. C.S. Ojha, learned Additional Government Counsel submits that POCSO is a law, which requires a strict scrutiny by the Court. He further submits that the offence is proved and the age is not in conflict and that once the learned counsel for the appellant has accepted the order of conviction, the learned Court should adopt a strict approach in order of sentence. 6. Heard learned counsel for the parties and perused the material available on record. 7. This Court finds that any law which is amended has to gain currency prospectively. However, it is an admitted position that amendment in Section 4 of the POCSO Act, increasing the minimum punishment i.e. from seven to ten years imprisonment, was incorporated only in the year 2019, whereas the alleged incident happened in the year 2015, thus, the language of Section 4 of the POCSO Act, which has been reproduced above clearly provides for a punishment between 07 years to life imprisonment. 7.1. This Court has taken the overall facts and circumstances of the case, and since, the accused-appellant himself has given up the prayer of contesting the conviction on merits, therefore, the limited prayer made by learned counsel for the accused-appellant was that the accused-appellant should be released on the basis of sentence undergone. The custody report clearly indicates that the accused-appellant has undergone custody of about 10 years. The custody report is taken on record. 8. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon’ble Apex Court in the case of State of M.P. v. Udham, (2019) 10 SCC 300 , as hereunder:- “12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). 13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.” 9. This Court while looking to the peculiar factual matrix of the case and on conjoint consideration of the medical report and Exhibit-5 (statement of the prosecutrix) finds that it is particularly, when the law in existence permitted that the sentence in a particular case can be revisited looking to the prolonged custody. 10. In light of the limited prayer made on behalf of the accused-appellant, the present appeal is partly allowed. Accordingly, while maintaining the accused-appellant’s conviction under Section 450 IPC & Section 3/4 of POCSO Act, 2012 and imposition of fine, the sentence awarded to him is reduced to the period already undergone by him. The accused-appellant is in custody; he be released forthwith, if not required in any other case, subject to deposition of the fine amount, as imposed by the learned Trial Court vide the impugned judgment of conviction and order of sentence. 10.1. However, while keeping in view the provision of Section 437-A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the accused-appellant is directed to furnish a personal bond in a sum of Rs. 10.1. However, while keeping in view the provision of Section 437-A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the accused-appellant is directed to furnish a personal bond in a sum of Rs. 25,000/- each and a surety bond each in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as and when called upon to do so. 10.2. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.