JUDGMENT : Goutam Bhaduri, J Heard. 1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 03.02.2021 passed by the Fast Track Special Judge (Protection of Children from Sexual Offences Act, 2012), Bemetara, in Special Case No.30/2019 whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 363 of the Indian Penal Code, 1860 R.I. for Seven Years and fine of Rs.1000/- and in default of payment of fine, R.I. for 1 year. Under Section 376AB of the Indian Penal Code, 1860 Imprisonment for Life (Means imprisonment for rest of the natural life) and fine of Rs.5000/- and in default of payment of fine, R.I. for 3 years. Under Section 3/4 of the POCSO Act, 2012 Imprisonment for life and fine of Rs.5000/- and in default of payment of fine, R.I. for 3 years. 2. The case of the prosecution, in brief, is that the victim, who was aged about 10 years, was allured by the present appellant/accused, while her mother and father had went out for their livelihood and she was with her uncle and aunt in the house. On the pretext of inviting her to play with his nephew the accused took her and thereafter committed forceful sexual intercourse. The victim when came back she was bleeding and it was disclosed to her mother. Thereafter, the victim was subjected to medical examination vide Ex. P/23 and the doctor NM (PW-9) found that the victim was subjected to sexual intercourse. The FIR Ex. P/3 was registered and after recording the statement of the witnesses, the charge-sheet was filed. 3. The appellant abjured his guilt during trial and claimed to be tried. The prosecution on its behalf examined as many as 09 witnesses and exhibited 23 documents. The appellant/accused in defence examined himself along with other witnesses. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal. 4. Learned counsel for the appellant would submit that the prosecution has failed to prove the age of the prosecutrix apart from the fact that there is no evidence on record to show that she was subjected to forceful sexual intercourse. He would further submit that only on the presumption the trial Court has convicted the accused which cannot be sustained. Learned counsel for the appellant would submit that the prosecution has failed to prove the age of the prosecutrix apart from the fact that there is no evidence on record to show that she was subjected to forceful sexual intercourse. He would further submit that only on the presumption the trial Court has convicted the accused which cannot be sustained. It is further contended that the conviction to the extent of maximum punishment is also bad in law as the date of incident is 31/05/2019 and Section 6 of the POCSO was amended on 16/08/2019 before that the minimum sentence was 10 years, therefore, the sentence to the maximum with the aid of Section 376 A & 376AB of IPC cannot be inflicted. He placed his reliance in the law laid down by the Supreme Court in the matter of State of Uttar Pradesh Versus Sonu Kushwaha { (2023) 7 SCC 475 } and would submit that under these circumstances the Supreme Court intervened and altered the sentence accordingly the appropriate order may be passed by this Court. 5. Per contra, learned State counsel would submit that the statement of the victim PW-2 along with the statement of doctor NM (PW-9) and the statement of the mother of the victim PS (PW-1) would go to show that the victim being a minor below the age of 12 years was subjected to forceful rape which is also fortified by the medical report Ex. P/23 and FSL (Ex. P/21). He would further submit that since the alleged offence was committed on 31/05/2019 and as per Section 376 AB IPC the maximum punishment is required to be inflicted, therefore, no illegality can be attached to the judgment of conviction and order of sentence. Consequently, the appeal has no merit and the same is liable to be dismissed. 6. We have heard learned counsel for the parties and perused the evidence. 7. The date of birth of the victim is stated by the mother as 04/01/2010 and according to her statement the victim was admitted by her husband at Primary School at the age of six years. The father of the victim MS (PW-3) stated that he got his daughter admitted in the Primary School and her date of birth was written as 04/01/2010 and she was born in the Government Hospital, Deokar. The father of the victim MS (PW-3) stated that he got his daughter admitted in the Primary School and her date of birth was written as 04/01/2010 and she was born in the Government Hospital, Deokar. The Headmaster of the School NM (PW-4) stated that on a requisition by the Police, the Dakhilkharij Register was seized from the School as per Ex. P/10 which was subsequently taken back. The Dakhilkharij Register was marked as Ex. P/9 and the copy is Ex. P/9 (C) and the cross-examination would show that the said entry in the Ex. P/9 was made by the Headmaster NM (PW-4) on a disclosure made by the father. Perusal of Ex. P/9 would show that the date of birth of the victim was shown as 04/01/2010 and the date of incident since was on 31/05/2019 according to it she was 09 years old. The date of birth which was disclosed by the mother PS (PW-1), father MS (PW-3) and the Headmaster NM (PW-4) has not been challenged and even otherwise the date of birth was written in the said Register at the behest of the parents, therefore, the date of birth remained unchallenged and it does not leave any ambiguity apart from the fact that the statement of doctor NM (PW-9) and the medical examination report Ex. P/23 the age is shown as 09 years and the date of birth was shown as 04/01/2010. All these date of birth which was disclosed by the witnesses no challenge is made during crossexamination, so, cannot be doubted. Under these circumstances, we are of the view that the prosecution was able to establish a particular date of birth on the basis of Ex. P/9 and the unrebutted oral testimony of the mother PS (PW-1), father MS (PW-3) and Headmaster NM (PW-4) and that of doctor NM (PW-9). In a result, the circumstances would point out that the victim was below 12 years of age on the date of incident on 31/05/2019. 8. Now we traversed through the narrative made by the victim PW-2 and the mother of the victim PS (PW-1). Perusal of the statement of the victim PW-2 would show that she was allured by the present appellant, who took her to his house and where the victim was subjected to forceful rape. The victim categorically explained by narrating stage of incident which happened with her. Perusal of the statement of the victim PW-2 would show that she was allured by the present appellant, who took her to his house and where the victim was subjected to forceful rape. The victim categorically explained by narrating stage of incident which happened with her. In the cross-examination of the victim PW-2 suggestions were given that while she was coming back, she fell down while running and dashed against a pole and thereby sustained the injury, but the same has been denied by her. Further suggestions were also given to her that in order to take the monetary advantage false report has been made, which too has been negated. 9. Mother of the victim PS (PW-1) stated that on 31/05/2019 they went out to earn their livelihood and after coming back the victim came to her, she was bleeding and having asked, the incident of rape came to fore. She further stated that immediately the victim was taken to the hospital, wherein the doctor after examination stated that the victim had a ruptured hymen and thereafter she was taken to the Bemetara Hospital. Father MS (PW-3) also narrated the similar facts and stated that the daughter was enticed away by the accused, he took her to his house and committed forceful rape. 10. Doctor NM in this case is examined as PW-9. According to the statement of doctor when she asked the victim how it happened, the victim narrated that she on some allurement by the accused, went to his home and thereafter the accused committed rape by penetration both on her vagina and the anus. Doctor NM (PW-9) narrated that before examining the victim, in order to prepare the case history, she made enquiry from the victim. According to the doctor she was under panic. She had abrasion over her thigh of 1 cm x 0.5 cm and hymen was ruptured and she was bleeding and blood stains were also present on both underwear and frock. She further stated that two vaginal swab slides and two anal swab slides were collected and were handed over to the police constable for FSL. The blood samples of the blood present on the clothes of the victim were also taken and were advised for examination and the report is marked as Ex.P/23. 11. The accused after arrest was also subjected to medical examination. The blood samples of the blood present on the clothes of the victim were also taken and were advised for examination and the report is marked as Ex.P/23. 11. The accused after arrest was also subjected to medical examination. According to the doctor G.S.T. (PW-7) the accused was capable to perform sexual intercourse. The report was given by Ex. P/12 and the underwear and one Bermuda pant were also found to be stained with blood and semen. The said articles were sent for FSL and the FSL report is Ex. P/21, proved by SKD (PW-8). On the article ‘A’ & ‘B’ which are the panty & frock of the victim sperm was found. Likewise, article ‘E’ which is the underwear of the accused the sperms were also found. The seizure and the medical examination of the victim was carried out on the date of incident itself i.e. on 31/05/2019 at 10.10 am and the alleged incident happened at about 7.00 am on the same day. Therefore, within very short span of time of incident the seizures were made. The FSL report on such seizures corroborates the oral testimony of victim. 12. The accused tried to raise a defence that the victim while running back to her house at that time she dashed against certain pole and sustained the injuries and started bleeding. This submission is negated by the FSL report (Ex. P/21) and the statement of the victim PW-2. There is no plausible explanation with regard to presence of spermatozoa in the swab slides of the victim when she was immediately examined after the incident. Apart from the fact that the statement of the doctor that the victim was under panic and was bleeding from the private parts, the said facts cannot be negated. The evidence produced proves that the accused was the author of the commission of rape with the victim, who was below the age of 12 years. 13. At this juncture, the submission of the counsel that the learned trial Court should not have given the maximum punishment as the incident happened on 31/05/2019 and the punishment for aggravated penetrative sexual assault before this amendment on 16/08/2019, the minimum punishment was 10 years. 14. 13. At this juncture, the submission of the counsel that the learned trial Court should not have given the maximum punishment as the incident happened on 31/05/2019 and the punishment for aggravated penetrative sexual assault before this amendment on 16/08/2019, the minimum punishment was 10 years. 14. We are not able to agree with the submission of the learned counsel for the appellant for the reason that Section 376 AB of the IPC speaks about punishment for rape on woman under 12 years of age, wherein the minimum sentence has been provided that it shall not be less than 20 years but may extend to life. The amendment to Section 376 AB of the IPC inserted by the Act 22 of 2018 on 21/04/2018. The incident in this case happened on 31/05/2019, it would be enveloped within such date and Section 42 of the POCSO Act, which has been inserted on 03/02/2013 speaks that when certain offence which includes the offence under Section 376 AB of the IPC, if the offender found guilty, the punishment which is greater in degree shall be inflicted. 15. The accused in this case has been punished with an imprisonment for life twice with default stipulations for commission of offence under Sections 376AB of the IPC and Section 3/4 of the POCSO Act, 2012 and for commission of offence under Section 363 of the IPC he has been sentenced to undergo R.I. for seven years. 16. Having considered the facts & circumstances of the case and also the fact that the age of the accused is shown to be 20 years, at this stage, we deem it proper that the rigorous imprisonment for a term of 21 years would be sufficient. Accordingly, we maintain the conviction under Sections 376AB of the IPC and Section 3/4 of the POCSO Act, 2012, however, alter the total quantum of punishment to R.I. for 21 years from Life Imprisonment. The default stipulations as imposed by the trial Court shall remain unaltered. So far as the conviction & sentence imposed for commission of offence under Section 363 of the IPC is concerned, the same is hereby maintained. The aforesaid sentences are directed to run concurrently. 17. In the result, the appeal is allowed in part.