JUDGMENT ON BOARD : Goutam Bhaduri, J. 1. The challenge in this appeal is to the judgment of conviction and order of sentence dated 08.01.2021 passed by the learned Additional Sessions Judge, 3rd Fast Track Special Court (POCSO Act), Durg, Distt. Durg Chhattisgarh in Special Criminal Case No.156/2017 whereby the appellant has been convicted and sentenced as follows: U/s 376(2)(i) of IPC R.I for 12 years and fine of Rs.5,000/-, in default of payment of fine, additional RI for 250 days. U/s 376(2)9n) of IPC RI for 12 years and fine of Rs.5000/-, in default of payment of fine, additional RI for 250 days. 2. The case of the prosecution, in brief, is that on 12.09.2017 at 5.p.m, the brother of the victim when came back from his job, he could not find the victim at the house. Having enquired about the whereabouts from a lady who was at the water-tap, she told that she has seen the victim in the house of the appellant. On which, he went to the house of the appellant and having seen the victim there without any clothes, he had beaten the accused asking “what have you done to his sister, the accused ran away from the spot. Further enquiry reveals that the appellant prior to 2-3 days of the said incident had committed similar act thereby the appellant was also involved in past antecedent of similar nature. As the accused had slept over the victim and committed sexual overt acts, FIR was lodged vide Ex.P-4 wherein the offence was registered. The victim was subjected to medical examination and after collecting the evidence, the charge sheet was filed. The appellant during the trial abjured the guilt and claimed to be tried. 3. The prosecution on its behalf has examined as many as 12 witnesses and the statement of victim was also recorded u/s 164 of Cr.P.C. After evaluating the statements and other documents, the learned Sessions Judge convicted the accused as aforesaid. Hence this appeal. 4. Learned counsel for the appellant would submit that statement of victim in this case would apparently show that no aggravated penetrative sexual assault was committed by the appellant and the statement of P.W.3 SP would show that due to some quarrel between him and accused, a false report has been made. Hence this appeal. 4. Learned counsel for the appellant would submit that statement of victim in this case would apparently show that no aggravated penetrative sexual assault was committed by the appellant and the statement of P.W.3 SP would show that due to some quarrel between him and accused, a false report has been made. He would submit that in the like nature of case when the medical report does not support the fact about the penetrative sexual assault, the conviction of accused on mere statement of like nature would lead to injustice and the Court should have considered the fact in the back-drop of the fact that the appellant has falsely been charged. Therefore, the finding arrived at by the learned Sessions Judge needs to be interfered with. 5. Per contra, learned State counsel supports the finding of the learned Sessions Judge. He submits that a perusal of the statement of Doctor P.W.12 along-with the medical report Ex.P-29 would show that the penetrative sexual assault has been committed and that evidence has not been negated, which stood firm by the statement of victim (P.W.1). Under the circumstances, the order of the Court below is well merited which do not call for any interference. 6. We have heard learned counsel for the parties and have also perused the evidence. According to the prosecution, on 12.09.2017, the appellant knowing fully aware that the victim is a minor girl of below the age of 12 years took out her entire clothes and committed aggravated penetrative sexual assault. The statement of the mother of victim P.W.4, the brother of victim P.W.3 and the statement of victim itself (P.W.1) would unanimously show that the age of victim was below 7 years old. In the cross examination of mother of victim (P.W.4), she stated the age of her daughter to be six years and her oral statement as also the statement made by victim which was adduced before the Court would unanimously show that the age of the victim was below 12 years in either case. Therefore, the charges framed u/s 5(l) and 5(m) of the POCSO Act which speaks that if the person commits penetrative sexual assault more than once or repeatedly on the child below the age of twelve years, would be attracted. Therefore, the charges framed u/s 5(l) and 5(m) of the POCSO Act which speaks that if the person commits penetrative sexual assault more than once or repeatedly on the child below the age of twelve years, would be attracted. By reading of evidence, we can explore the fact as to whether or not the penetrative sexual assault was committed on the victim. 7. We have minutely gone through the statement of victim P.W.1 (JP) The victim was examined before the Court on 12.11.2018 wherein she was stated to be of 7 years. P.W.2 the cousin sister of victim also stated that the victim was 6 years old. The victim states that the incident was of 2017 and the appellant has committed wrong act with her. She further deposed that when the accused asked her to accompany him, she told the appellant that she will not accompany him, but she was forcibly taken to his house. Thereafter, he took off her entire clothes and slept over her. She deposed before the Court that the appellant committed wrong whereby she sustained pain. Thereafter his brother (SP) came there and she disclosed the entire incident to him. She further states that the said incident was also disclosed to his sister (LH) and the report was made. In the cross examination of the witness, the suggestion was given that some dispute occurred between the accused and brother of victim, therefore, the report was made. The said suggestion was completely negated by the witness. The further suggestion was made that she made a wrong statement but she denied. The brother of victim (SP) was examined as P.W.3. He stated that on the date of incident when he came back, he found that his sister aged about 7 years was not at home. Therefore he enquired about her sister. Thereafter, when someone was contacted, she told him that his sister is in the house of the appellant. He went there, opened the door and saw that the victim was completely naked. Having seen the victim in naked position, he caught hold of the appellant and slapped him, but the appellant fled away. Thereafter , he took her sister and enquired from her wherein it was disclosed by victim that the appellant allured her of some sweet and money, took her to his house and slept over her thereby he did wrong thing. Thereafter , he took her sister and enquired from her wherein it was disclosed by victim that the appellant allured her of some sweet and money, took her to his house and slept over her thereby he did wrong thing. In the cross examination of this witness, we do not find that those statements were rebutted. 8. The mother of victim P.W.4 PP states that her daughter is 7 years old and at that time, her husband was admitted in the hospital, therefore, she was at hospital and the victim was at her home along with her niece. The appellant allured the appellant offering her money and sweets, thereafter committed forcible penetrative sexual assault. After the report was made, the victim was subjected to the medical examination. The medical examination report is Ex.P-29 and the following injuries were found : “Hymen deeply seated intact. Redness 5 cm in length around introitus. 3 small pinpointed abrasions on outer side of both labia majora. 2 pinpointed abrasions on right labia and one at left labia majora. 2 slides from introitus prepared, sealed, packed and handed over to P.C. Opinion – Attempt of rape could have done. - Injury by hard and blunt object. 9. The doctor (P.W.12) states that the injuries found on labia majora was caused by hard and blunt object from an attempted rape. According to the Doctor, on the private part of the victim injuries were found. She was examined on 13.09.2017 immediately after the report was made. The statement of the mother PP (P.W.4) also corroborates the fact that when she enquired from her daughter the victim, she (victim) told her that there was a scratch in the place of urination where there was a wound. Therefore, the statement of mother stood firm by the medical evidence of Doctor (P.W.12) and medical report (Ex.P-29), which do not negate any fact. The doctor was not cross-examined. In absence of such cross examination the evidence of the doctors appears to be admissible which is also corroborated by the medical evidence. Therefore, the statement of mother stood firm by the medical evidence of Doctor (P.W.12) and medical report (Ex.P-29), which do not negate any fact. The doctor was not cross-examined. In absence of such cross examination the evidence of the doctors appears to be admissible which is also corroborated by the medical evidence. Though the defence was taken that because of the earlier enmity of the appellant with the brother of the victim, false report was made but when such suggestions were given to the victim, she being minor girl of 10 years of age completely shows her ignorance but the allegation was attributed to appellant that after the incident, she was recovered from his house. Therefore, earlier to the incident, there was no dispute and if such nature of incident happens with a near relative, it may lead to animosity and quarrel. 10. The overall evidence of the witnesses, therefore, would sufficiently prove the penetrative sexual assault as defined u/s 3 of the POCSO Act. Section 3 (a) describes that a person is said to commit “penetrative sexual assault” if he penetrates his penis into the vagina to any extent or in other parts of the body of a child as stated therein or makes the child to do so with him or any other person. So the prosecution was able to prove the offence inasmuch as according to the doctor, the penetration was caused into the vagina of the child. There is no dispute about the fact. 11. The prosecution was further able to prove the age of victim to be less than 12 years. The statement of the parents of the victim shows that she was below the age of 12 years and as per the Dakhil Kharij Register (Ex.P-12-C), the DoB of victim was 07.09.2011 and even if any lapse is given could not cross the age of 12 years. Therefore, the prosecution was able to prove the case u/s 5(l) and 5(m) read with section 3 of the POCSO Act and as such the accused was liable to be punished u/s 6 for aggravated penetrative sexual assault. 12. Section 42 of the POCSO Act, 2012 provides for alternative punishment. The accused was convicted for the offence u/s 376(2)(i) & 376(2)(n) of the IPC and section 5(l) and 5(m) and 6 of the POCSO Act. 12. Section 42 of the POCSO Act, 2012 provides for alternative punishment. The accused was convicted for the offence u/s 376(2)(i) & 376(2)(n) of the IPC and section 5(l) and 5(m) and 6 of the POCSO Act. There is a provision for punishment under the provisions of IPC mentioned in Section 42 of the Act, 2012 which provides for heaviest punishment. Section 376(2)(i) & 376(2)(n) of IPC are mentioned in Section 42 of the Act, 2012. The punishment provided in section 376(2)(i) & 376(2)(n) of IPC and sections 5 & 6 of the POCSO Act is not equal. 13. The learned trial Court has elaborately analysed the punishments provided in Sections 376(2) of IPC and Sections 5 & 6 read with section 42 of the POCSO Act. The trial Court recorded that Section 376(2)(i) of IPC has been omitted by the Criminal Law Amendment Act, 2018. Since the incident took place in the year 2017, the charge u/s 376(2)(i) of IPC was legally framed against the accused. The punishment is provided in Section 376(2)(i) of IPC which came into force in the year 2017. The punishment of section 5(B) and 5(M) of the POCSO Act, 2012 has been provided in section 6. Section 6 was amended by Section 5 of the Act No.25 in the year 2019. Since the incident took place in the year 2017 prior to section 5 Amendment Act No.25 of the year 2019, there was a provision for punishment for aggravated penetrative sexual assault u/s 6 of the POCSO Act. Therefore, in the light of section 42 of the POCSO Act, 2012, as compared to section 5(B) and (M), the appellant was liable to be punished u/s 376(2)(i) and 376(2) (n) of IPC, which prescribed that the minimum imprisonment should not be less than 10 years but may extend to life. 14. In view of the above discussion, we do not find any infirmity in the impugned judgment of conviction and order of sentence and the learned trial Court has rightly sentenced the appellant to undergo imprisonment for a period of 12 years u/s 376(2)(i) and 376(2)(n) of IPC and to pay a fine of Rs.5000/-. Having considered the gravity of offence, we are not inclined to interfere in the judgment of conviction and order of sentence. In the result, the appeal sans merits and is dismissed.