JUDGMENT : Ramesh Sinha, C.J. 1. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 13.09.2022 passed by the learned Additional Sessions Judge, Dongargarh, District- Rajnandgaon in Sessions Trials No.16/2019 (CNR No. CGRN09-000375-2019), whereby the trial Court has convicted the appellant under Section 6 of the Protection of Children from the Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced him to undergo rigorous imprisonment for 20 years with fine of Rs.1,000/-, in default of payment of fine, additional rigorous imprisonment for 03 months. 2. Case of the prosecution, in brief, is that the father of the victim had lodged a written report in Police Station Bortalab alleging therein that on 30.10.2019, they were in the house of relatives in village Karutola, at that time, the victim along with her sister were present in the house. The appellant came to their home at 19.00 O’clock and on knowing that their parents are out of village, locked the door from inside and committed forceful rape with the prosecutrix, who was minor at the time of incident. Thereafter, the prosecution has lodged the First Information Report (Ex.P/1) under Crime No. 31/2019 for the offence punishable under Section 376 of the IPC and Sections 04 & 06 of the POCSO Act and the accused/ appellant was taken into custody vide Ex.P/10. 3. During the course of investigation, Crime Details Form was prepared vide Ex.P/2. Birth certificate of the victim was seized from her father vide Ex.P/3. After taking consent from the father of the prosecutrix vide Ex.P/4, the prosecutrix was medically examined by Dr. B.P. Ekka (PW-21) vide Ex.P/19. As per memorandum statement of accused/appellant (Ex.P/8), one underwear and one full pant were recovered vide Ex.P/9. Spot map was prepared vide Ex.P/11. Statements of the victim and witnesses i.e. father of the victim Sukhdev Ram Kanwar, Smt. Sukhbati Kanwar (mother), Darshan Ram Gond, Rajkumar Nishad were recorded vide Exs. P/13, P/5, P/12, P/14 and P/20 respectively. Memo to Head Master for providing dakhil kharij register was sent vide Ex.P/15 and a certified copy dakhil kharij register (Article A-1C) was seized vide Ex.P/16. Accused was also medically examined vide Ex.P/17 by Dr. Sanjay Choudhary (PW-14). Two vaginal slides and undergarment of the victim preserved and prepared by Dr. B.P. Ekka (PW-21) were seized vide Ex.P/21 & P/23. Memo to Head Master for providing dakhil kharij register was sent vide Ex.P/15 and a certified copy dakhil kharij register (Article A-1C) was seized vide Ex.P/16. Accused was also medically examined vide Ex.P/17 by Dr. Sanjay Choudhary (PW-14). Two vaginal slides and undergarment of the victim preserved and prepared by Dr. B.P. Ekka (PW-21) were seized vide Ex.P/21 & P/23. For determination of the age of the victim, X-ray of the victim was taken by Dr. Rajesh Patel (PW-19) and its report was obtained vide Ex.P/22. Memo to Radiologist regarding age determination of the prosecutrix was sent vide Ex.P/24. Seized articles were sent for chemical analysis to Forensic Science Laboratory, Raipur vide Ex.P/25 and receipt was obtained vide Ex.P/26. Notices under Section 160 of Cr.P.C. were given to the victim and witnesses for recording their statements vide Ex.P/06, P/07, P/13, P/27, P/29 & P/29. Memo to Judicial Magistrate and statement under Section 164 of Cr.P.C. of the victim, Tameshwari & Sukhdev Ram Kanwar were taken vide Ex.P/31. 4. After completion of investigation, the police submitted the police report alongwith charge-sheet against the appellant/convict under Section 376 of the IPC and Sections 04 & 06 of the POCSO Act before the Additional Sessions Judge, Dongargarh, District - Rajnandgaon, where the case was commenced for trial in Sessions Trial No. 16/2019 (CNR No. CGRN09-000375-2019) and charges were framed under Section 376AB of the IPC and Section 06 of the POCSO Act. 5. Statement of accused was recorded under Section 313 of the Cr.P.C. in which he denied all the circumstances appearing against him and stated that he is innocent and has been falsely implicated. He has not examined any witness in his defence. 6. The prosecution in order to bring home the offence examined as many as 25 witnesses and exhibited 31 documents (Exhibits P-1 to P-31). 7. The trial Court after completion of trial and after appreciating oral and documentary evidences available on record, by the impugned judgment dated 13.09.2022 convicted and sentenced the appellant in the manner mentioned in the opening paragraph of this judgment, against which this appeal under Section 374(2) of the CrPC has been preferred by them calling in question the impugned judgment. 8. Mr. 8. Mr. Vivek Bhakta, learned counsel for the appellant submits that the learned trial Court has committed error of law in considering the fact that in paragraph 12 that the prosecution has failed to prove the age of the prosecutrix and completely failed to prove that at the time of incident, she was minor beyond reasonable doubts. The trial Court has also committed gross illegality in considering Tameshwari (PW-3) as eyewitness, but as per the story of the prosecution itself, she was hearsay witness. He further submits that according to Section 29 of the POCSO Act presumption cannot be drawn against the appellant/accused, because he has been convicted under Section 6 of the POCSO Act, whereas Section 29 provides that the alleged offence should be proved by the prosecution beyond reasonable doubt. He also submits that the learned trial Court has failed to appreciate the evidence of Dr. B.P. Ekka (PW-21), who had clearly opined that neither any internal or external injuries were found by him over the body of the victim. The prosecution has failed to exhibit the statements of the prosecutrix and her sister under Section 164 of Cr.P.C. before the trial Court and the appellant has been expelled from cross-examination, therefore, the impugned judgment and conviction is liable to be set-aside. 9. On the other hand, Mr. Shreyansh Agrawal, learned Panel Lawyer appearing for the State/respondent submits that the appellant has committed a heinous crime of rape against a minor girl aged about 11 years. He further submits that PW-3, sister of the victim, who is also stated to be an eyewitness has clearly deposed before the learned trial Court that she saw the accused in nude condition just after the incident where the victim narrated the whole incident to her. He also submits that the judgment of conviction and sentence awarded by the learned trial Court is just and proper warranting no interference. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor below the age of 12 years ? 12. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11. The first question for consideration before this Court would be, whether the trial Court is rightly held that on the date of incident, the victim was minor below the age of 12 years ? 12. When a person is charged for the offence punishable under the POCSO Act, or for rape punishable in the Indian Penal Code, the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the “child” which means any person below the age of eighteen years. 13. In the present case, the prosecution has presented a certified copy of the dakhil kharij register (Article A-1C) of the Government Pre-Secondary School, Dongargarh, in which the date of birth of the victim is mentioned as 26.02.2008. Apart from this, a photo-copy of the victim’s Adhar car has been presented, in which her date of birth is stated to 26.02.2008. In this regard, the Incharge Headmaster of the school (PW-11), appeared in the Court and displayed the original dakhil kharij register, in which the date of birth of the victim is mentioned as 26.02.2008. On behalf of the prosecution, the bone test report of the victim, conducted by a radiologist (Ex.P-22) has also been presented. Dr. Rajesh Patel (PW-19), Assistant Professor, Medical College, Rajnandgaon, in his court examination has stated that the victim was brought before him on 06.11.2019 for bone test regarding her age and he took X-ray and submit report as Ex.P/22, according to which the victim is said to be 11 years of age. In cross-examination he admitted that there could be a difference of one or two years in the age of the victim. The original copy of the birth certificate of the victim was also presented by the prosecution. In that also the age of the victim was marked as 26.02.2008. The victim or any witness on behalf of the prosecution has not given any statement regarding age in their police statement, but the victim (PW-6) in her Court examination-in-chief has stated her date of birth to be 26.02.2008. In that also the age of the victim was marked as 26.02.2008. The victim or any witness on behalf of the prosecution has not given any statement regarding age in their police statement, but the victim (PW-6) in her Court examination-in-chief has stated her date of birth to be 26.02.2008. No questions were asked regarding date of birth or determination of her age in cross-examination. 14. The defence has not presented any oral or documentary evidence to refuse the said date of birth, therefore, there is no reason to disbelieve the date of birth of the victim, as 26.02.2008 hence, the trial Court has rightly held that the date of birth of the victim is 26.02.2008 and on the date of incident, she was minor and her age was 11 years 8 months and 4 days. 15. The next question for consideration before us is whether the appellant has committed rape on minor victim? 16. In this regard, the statement of the the victim (PW-6) is most important. When she was asked after showing the photo of the accused in the arrest sheet, she expressed that she recognized the accused and his name was Patiram. She stated that she is studying in Class 6th in village Moonglani School and her date of birth is 26th February, 2008. The incident is dated 30.10.2019. On the date of incident, while she was sleeping, the accused forcibly raped her by removing her clothes and also his own clothes. When she refused, the accused did not agree and he forcefully did wrong things to her, then she started screaming. Hearing his shouting, her sister knocked on the door of the house from outside, then accused climbed into the basement of the house and hid himself. Thereafter, she opened the door of the house, then after telling my sister about the incident, then her sister shouted and called the neighbors and villagers. Then the villagers came to the house and searched for the accused in their house and found him lying in the basement. The villagers had brought down the accused from basement. On the date of incident, her parents had gone to village Karutola. Some people from our village went to village Karutola and informed them about the incident and when they returned back. Then when her mother asked her about the incident, she informed her mother about the incident. The villagers had brought down the accused from basement. On the date of incident, her parents had gone to village Karutola. Some people from our village went to village Karutola and informed them about the incident and when they returned back. Then when her mother asked her about the incident, she informed her mother about the incident. Thereafter, her father has given report of the incident at Police Station, Bortalab. In her cross-examination, she has admitted that the accused had come to their house twofour times before the incident. She has denied the suggestion that as the villagers had seen the accused entering in the house, therefore, they had caught him on the basis of suspicion. She also denied that the accused has not caused any incident to her. 17. The sister of the victim Tameshwari (PW-3), who is stated to be an eyewitness of the incident, in her statement has stated that the incident took place on 30.10.2019 at 07.00 pm. On the date of incident, her parents were in village Karutola, at around 6.30 in the evening, accused Patiram came to their house and asked her for water to drink. Accused told her that "Dogi kya", then she went out of the house without giving any answer. The accused also came out of the house. Since she was not aware that her sister, the victim, was sleeping at home, she went out to search for her sister. When she came back to her house, she saw that the door of the house was locked from inside, then she screamed and her sister, the victim, opened the door of the house, she saw that the accused was standing naked inside her house. Her sister, the victim, told her that when she was sleeping at home, the accused forcefully did something wrong with her. When she went inside the house, her sister, the victim, was also not wearing clothes. Accused had removed the clothes her sister was wearing for committing wrongdoing. After that she along with her sister, the victim, started screaming and then their neighbours came into the house. Accused, seeing everyone coming, hide himself in the basement inside the room of the house, which was pulled down by the villagers. They took the accused to police station on the next day and lodged a report of the incident. After that she along with her sister, the victim, started screaming and then their neighbours came into the house. Accused, seeing everyone coming, hide himself in the basement inside the room of the house, which was pulled down by the villagers. They took the accused to police station on the next day and lodged a report of the incident. After giving notice under Section 160 CrPC, the police took her statement regarding the incident. In her cross-examination, she had denied the suggestion that she was aware that her sister, the victim, was in the house at the time of the incident. She also denied the suggestion that she had told the accused that when there is no one in my house, then come to our house in the evening. 18. Sukhdev Ram Kanwar (PW-1), father of the victim, who is also the informant of the case, has stated that on the date of incident i.e. on 30.10.2019, he along with his wife had gone to village Karutola to meet his relatives. At around 10.00 in the night, two or three people from their village Kohlakasa came to village Karutola and told him that his daughter, the victim, has been raped, then he along with his wife came back to village Kohlakasa. He further stated that on being interrogated, his daughter, the victim, told him that on the date of incident, while she was sleeping, the accused Patiram Chandravanshi came and forcibly raped her. After that he told the villagers about the incident and the incident was reported by him on 31.10.2019 as due to late night, he was not able to report on 30.10.2019. At this stage, Additional Public Prosecutor declared him as hostile and sought permission to ask leading questions and after getting permission, when leading questions were put to him, this witnesses admitted that in police statement he had stated that the victim had told him that while she was sleeping in the house, the accused started taking off the pajama and underwear she was wearing, then she woke up and after seeing the clothes being removed, when she screamed, the accused pressed her mouth. He further stated that the victim also told him that the accused forcibly took off her clothes, then with his left hand he took out his full pant and underwear and put his urinating organ in her urinating organ and started rubbing her, on which she was feeling a lot of pain. In his cross-examination, he has stated that accused Patiram seems to be the brother-in-law (dewar) of his sister-in-law (bhanji) Amrit Bai, he already knew him. He admitted that before the date of incident though the accused had come to his house about 3-4 times, but never stayed at night. He also admitted that accused had come to his house on the date of incident on a bicycle. He has further admitted that though one cannot stay on basement overnight, but can stay to hide and the accused patiram was brought down from basement by the villagers immediately after the incident before they reached the village Kohlakasa. 19. Smt. Bhogin Bai (PW-2), kotwar of the village, has stated that the incident took place on 30.10.2019 at 7.00 pm. On the date of incident, accused Patiram went to Sukhdev's house and talked to his elder daughter Tameshwari, after which Tameshwai went out of the house, then accused Patiram closed the door of the house from inside and went to the victim's room and took off the clothes he was wearing. The victim was sleeping at the time of the incident. The accused also started removing the victim's clothes. The victim was forcibly raped by the accused. At the same time, when Taneshwari came back home, she saw that the door of the house was locked from inside and she started screaming. The victim also came out of the house crying and screaming, then the villagers heard the noise and went inside the victim's house. When the accused saw us, he hid in the basement of the room. Hearing the voice of the victim, she also went inside her house and saw that the accused Patiram was hiding the basement of the room and was not wearing clothes. The victim was made to wear a towel by her sister Tameshwari. When asked, the victim told that while she was sleeping in the house, the accused forcibly removed her clothes and raped her. The victim was made to wear a towel by her sister Tameshwari. When asked, the victim told that while she was sleeping in the house, the accused forcibly removed her clothes and raped her. In her cross-examination, she has admitted that whatever she had told in the police statement, she had told it as per what Tameshwari said. She denied the suggestion that no incident has happened to the victim and she is narrating the above incident due to pressure from the villagers. 20. Neturan Ram Kanwar (PW-4), witness of the memorandum and seizure, has stated that the memorandum statement of the accused was taken before him in which he admitted to raping the victim. After that we all went to the police station. He further stated that according to the information given by the accused in the police station, they went to the house of Sukhdev at Kohlakasa at the place of incident and the accused Patiram took out his hidden underwear from the house which was confiscated by the police. In his cross-examination, he has admitted that he do not know about the place from where the accused Patiram's handed-over his underwear and fullpant. He also admitted that after the policemen said that the underwer and full pant were being conficated, he had signed Ex.P/9 as per their instructions. 21. Smt. Sukhbati Kanwar, mother of the victim, has stated that the incident took place on the second day of Diwali. On the date of incident, she along with her husband had gone to another village Karutola. Some people from village Kohlakasa came at night to take her and her husband to village Karutola from where they returned to their home. On being asked, her daughter, the victim, told her that the accused Patiram had forcefully raped her. Her elder daugher Tameshwari was not awre that the victim was sleeping in the house, so she closed the door and went out of the house. She also stated that even her elder daughter Tameshwari and the victim were not aware that the accused Patiram was inside their house. When Tameshwari came back after sometime and seeing the door locked from inside, she called out and when the victim opened the door, she saw that the accused had raped the victim. On hearing the screams of the victim and her elder daughter, the people of the villagers came home. When Tameshwari came back after sometime and seeing the door locked from inside, she called out and when the victim opened the door, she saw that the accused had raped the victim. On hearing the screams of the victim and her elder daughter, the people of the villagers came home. In her cross-examination, she denied the suggestion that on the pressure of villager, they had lodge false report. 22. Chaitram Gond (PW-7), has stated in his statement that on being heard about the incident, when he went to the house of the victim, the accused Patiram was climbed up on the basement of the house of Sukhdev and when searched, the accused was found without underwear and other clothes on the basement of the victim's house and was brought down. The police interrogated the accused in front of him and took his memorandum statement. In his cross-examination, he denied the suggestion that the accused did not give the memorandum statement Ex.P-8 before the policemen and he has signed the memorandum statement at the behest of the policemen. 23. Dr. S. Choudhary (PW-12), who had medically examined the accused, has stated that on examining the private parts of the accused he found that the testicles and genitals of the accused were fully developed and as per his opinion the accused was capable of sexual intercourse. 24. Dr. B. P. Ekka (PW-21), who had medically examined the victim on 31.10.2019 at about 6.00 pm, has stated that at the time of examination the condition of victim was normal, there was no external injury found over the body of the victim. Secondary sex organs were not fully developed. The victim had not started menstruation. On examining the vagina of the victim, there was no injury mark around the vagina. The victim's hymen was not torn. She had prepared two slides from the vaginal discharge of the victim and handed them over to the same constable for chemical testing. According to her, no definite opinion could be given regarding whether the victim was raped or not. On the date, a blue colored panty with a white stain at the bottom was brought before her by the same constable for examination. She had advised to get the said panty chemically tested and handed over the said panty to the same constable. On the date, a blue colored panty with a white stain at the bottom was brought before her by the same constable for examination. She had advised to get the said panty chemically tested and handed over the said panty to the same constable. In his cross-examination, she denied the suggestion that if a minor girl is raped then marks of nails etc are left on her body. She herself says that it is not necessary in all circumstances. He admitted that there is no mention in the report Ex.-19 regarding after how much she had examined the victim after the alleged incident of rape took place. She also denied the suggestion that only if a woman consents to having physical relations, there will be no mark on her body, otherwise forceful physical relations will definitely leave some mark on the woman's body. She further denied that due to forceful sexual intercourse, the condition of the vagina changes and does not remain in its normal state. 25. Investigating Officer, Anant Pradhan (PW-23) in his statement before the Court has narrated the entire sequence of events which has remained unrebutted by the defence. 26. In this case, the statement of victim (PW-6) is the most important one as she deposed that on the date of incident, while she was sleeping, the accused forcibly raped her by removing her clothes and also his own clothes. When she refused, the accused did not agree and he forcefully did wrong things to her, then she started screaming. Hearing his shouting, her sister knocked on the door of the house from outside, then accused climbed into the basement of the house and hid himself. Thereafter, she opened the door of the house, then after telling my sister about the incident, then her sister shouted and called the neighbors and villagers. Then the villagers came to the house and searched for the accused in their house and found him lying in the basement. The villagers had brought down the accused from basement. Thereafter, she opened the door of the house, then after telling my sister about the incident, then her sister shouted and called the neighbors and villagers. Then the villagers came to the house and searched for the accused in their house and found him lying in the basement. The villagers had brought down the accused from basement. The aforesaid statement of the victim has been fully supported by the statement of Tameshwari (PW-3), who has left the accused inside the house and gone out for search of the victim and when returned back, she saw that the door of the house was locked from inside, then she screamed and her sister, the victim, opened the door of the house, she saw that the accused was standing naked inside her house. Her sister, the victim, told her that when she was sleeping at home, the accused forcefully did something wrong with her. When she went inside the house, her sister, the victim, was also not wearing clothes. Accused had removed the clothes her sister was wearing for committing wrongdoing. After that she along with her sister, the victim, started screaming and then their neighbours came into the house. Accused, seeing everyone coming, hide himself in the basement inside the room of the house, which was pulled down by the villagers. 27. In the case in hand, though Dr. B. P. Ekka (PW-21), who had medically examined the victim on 31.10.2019 at about 6.00 pm, has stated that at the time of examination the condition of victim was normal, there was no external injury found over the body of the victim. Secondary sex organs were not fully developed. The victim had not started menstruation. On examining the vagina of the victim, there was no injury mark around the vagina. The victim's hymen was not torn. Secondary sex organs were not fully developed. The victim had not started menstruation. On examining the vagina of the victim, there was no injury mark around the vagina. The victim's hymen was not torn. The aforesaid statement is invalid because penetrative sexual assault has been defined in Section 3 of the POCO Act, which states that a person is said to commit "penetrative sexual assault" if - (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of the body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child makes the child to do so to such person or any other person. 28. In the commission of crime defined under Section 3(c) above, the accused has committed the act of forcibly removing his clothes and the victim's clothes and rubbing the victim while she was sleeping and inserting his urinary organ into the victim's urinary organ, which was stated by the victim in her Court examination, in the police statement and Section 164 CrPC statement. Although Section 164 CrPC statement of the victim has not been produced in the Court, but it will be read from the evidence of the investigator. The above acts of the accused have been confirmed in the Court by the victim and her sister, who are the victim and eyewitness of the incident and no such contradictory statements have come in the cross-examination due to which their statements cannot be believed. Therefore, even if the doctor has not given concrete opinion that her hymen was not broken or she was raped, but as per the definition given in Section 3(c) of the POCSO Act, the accused has committed the said and crime with the victim is proved. Therefore, even if the doctor has not given concrete opinion that her hymen was not broken or she was raped, but as per the definition given in Section 3(c) of the POCSO Act, the accused has committed the said and crime with the victim is proved. The word "Dogi kya" spoken by the accused to the victim's sister after drinking water before entering the house have also been proved, which proves the criminal mentality of the accused for committing the above crime. As per the above, it is proved that the accused committed penetrative sexual assault on the victim on the same date. 29. Section 5(m) of the POCSO Act reads as under : “Section 5 - Aggravated penetrative sexual assault (m) whoever commits penetrative sexual assault on a child below twelve years” 30. Section 6 of the POCSO Act reads as under : “6. Punishment for aggravated penetrative sexual assault.-- (1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 31. Section 376AB of the IPC reads as under : “376AB. Punishment for rape on woman under twelve years of age.-- Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.” 32. In the case in hand, the victim was minor below the age of 12 years on the date of incident, which has been proved by the dakhil kharij register (Article A-1C) where her date of birth has been mentioned as 26.02.2008 and the date of incident is 30.10.2019 and as such, she was aged 11 years 8 months and 4 days. The said fact has remain unshaken and unrebutted by the defence. Dr. Sanyogita Paikra (PW-4), who has clearly deposed that though there was no sign of recent sexual assault but her hymen was found to be ruptured and as such, she opined that the possibility of the victim being subjected to sexual assault cannot be ruled out. As per bone test report (Ex.P/22) also victim is said to be 11 years of age. 33. The appellant has also not stated anything concrete in his defence except that he does not know and that he has been falsely implicated. In our opinion, the above chain of circumstances is complete and leads only to one conclusion that it was the accused/appellant who has committed the aforesaid crime. The view taken by the learned trial Court that the appellant is the author of the crime is a pure finding of fact based on evidence available on record and we are of the opinion that in the present case, the only view possible was the one taken by the trial Court. Since the victim was below the age of 12 years on the date of incident, hence, offence under Section 5(m) read with Section 6 of the POCSO Act is fully proved against the appellant. 34. Section 42 of the POCSO Act, 2012 reads as under : "42. Alternate punishment.- Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540, 370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 42A. Act not in derogation of any other law. 42A. Act not in derogation of any other law. - The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency." 35. Since the commission of offence under Section 376AB of the IPC and Section 6 of the POCSO Act have been duly proved, the learned trial Court has rightly convicted and sentenced the appellant under Section 6 of the POCSO Act and under the principle of double punishment, he has exempted the accused from the charges of Section 376AB of the IPC. No leniency can be shown towards the appellant as he has sexually assaulted the prosecutrix aged below 12 years of age. 36. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellant/convict. 37. Accordingly, the appeal being devoid of merit is liable to be and is hereby dismissed. 38. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 13.09.2022. 39. Let a certified copy of this order alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any.