JUDGMENT : RAJANI DUBEY, J. 1. This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 20.6.2019 passed by the learned Special Judge (under the Protection of Children from Sexual Offences Act, 2012) Bhanupratappur, District North Bastar-Kanker (C.G.) in Special Criminal (POCSO Act), 18/2018, wherein the said Court convicted the appellant and sentenced him as under:- Conviction Sentence U/S 376AB of IPC For life imprisonment till natural death and fine of Rs. 50,000/- in default of payment of fine amount to undergo additional R.I. for 6 months. 2. The case of the prosecution, as unfolded from the impugned judgment and the records of the case, is that the father of the prosecutrix has lodged the first information report stating that on 05.05.2018 at about 2:30 pm, someone enticed away the goat to Hundara from his backyard, in search of goat the prosecutrix along with the accused/appellant Kailash and the appellant’s son Tushar went towards the forest. He further stated that around 3:00 pm his daughter came back home and told him that while going towards the forest, in the midway, the accused/appellant Kailash sent his son back and near four trees, the accused/appellant threw the victim/prosecutrix on the ground, firmly pulled her underwear down and kept that aside and by sliding his underwear, he sat over her and then committed forcible sexual intercourse with her. Then, the prosecutrix took the stick which was laying in her side and inflicted three blows on the accused/appellants’ hands and she pushed him away, as such she recovered herself from the possession of the accused/appellant and by taking her underwear she fled from the spot and reached to her home. Thereafter, the complainant/father of the prosecutrix after having discussions regarding the fateful incident with the village people came to report the said incident to the police station as being suggested by the villagers. The crime was registered against the appellant under Crime No. 56/2018 for the offence punishable under Section 376-AB of IPC and Section 6 of the POCSO Act, 2012. 3. During the course of investigation, the Police Station Bhanupratappur (C.G.) prepared the spot map vide Ex. P/07, Patwari Naksha vide Ex. P/04, Panchanama vide Ex. P/05 were obtained. After obtaining the prior consent of the victim and her guardian vide Ex. 3. During the course of investigation, the Police Station Bhanupratappur (C.G.) prepared the spot map vide Ex. P/07, Patwari Naksha vide Ex. P/04, Panchanama vide Ex. P/05 were obtained. After obtaining the prior consent of the victim and her guardian vide Ex. P/01 the victim’s private parts medical examination was conducted by the female doctor and its report is Ex. P/15 (M.L.C). In order to prove the actual age of the victim, her dakhil-kharij register showing her date of birth was seized from her school vide Ex. P/18. The true copy of the dakhil-kharij register is attached to the case vide Ex. P/19C. Regarding the age of the victim, the photocopy of the register vide Ex. P/21 was seized from the Anganwadi Centre as per Ex. P/20 and the same is attached to the case. Similarly, as per seizure sheet vide Ex. P/10, birth registration, birth information card and true copy of birth certificate was seized in relation to her age and it is attached to the case as Exs. P/11C, 12C, 13C and 14C respectively. The written statement vide Ex. P/08 of the prosecutrix was recorded before the Judicial Magistrate First Class, Pakhanjure. The medical examination of private parts of the accused/appellant was done vide Ex. P/23. As per seizure sheet Ex. P/02, vaginal slide, underwear of the prosecutrix were seized and vide Ex. P/17 the semen slide of the accused/appellant was seized and the above seized articles were sent to Regional F.S.L, Jagdalpur through Superintendent of Police, Kanker for its chemical examination vide Ex. P/27 and vide Ex. P/28 received receipt of the same and then vide Ex. P/29 F.S.L. report was obtained and then query report of the said F.S.L. report was obtained vide Ex. P/16. The accused was then arrested and his family members were informed. 4. After completion of usual investigation, charge-sheet was led before the jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Section 376-AB of IPC. The appellant having abjured guilt was subjected to trial. 5. In order to substantiate its case, the prosecution has examined as many as 17 witnesses and exhibited several documents. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Section 376-AB of IPC. The appellant having abjured guilt was subjected to trial. 5. In order to substantiate its case, the prosecution has examined as many as 17 witnesses and exhibited several documents. Statement of the accused/appellant was also recorded under Section 313 of Cr.P.C in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. However, he adduced 01 witness in his defence. 6. Learned trial Court after appreciating the oral and documentary on record, convicted the appellant under Sections 376-AB of IPC and sentenced him as mentioned in the opening paragraph of this judgment. 7. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence passed by the learned trial Court suffers from factual and legal infirmity and perversity. The learned trial Court has not properly appreciated the facts and evidence available on record while passing the impugned judgment. The learned trial Court ought to have considered the fact that all witnesses examined by the prosecution are relative and pocket witness. Thus, the learned trial Court has failed to consider the actual facts of the case and only on the basis of presumption her date of birth mentioned in the Dakhil Kharij Panji, school register has convicted the appellant, when her mother PW/01 and father PW/02 have clearly stated in their evidence and admitted that they are unaware of the fact regarding when their daughter took admission in the school and in which class she took, hence, the date of birth of prosecutrrix/victim is doubtful. Learned trial Court has also failed to consider the evidence of (PW/6) Dr. Preeti Singh, who has clearly stated in her evidence that only on the basis of police verification, she had mentioned the age of prosecutrix in her report and she referred to the radiologist for determination of age, but the prosecution has failed to produce the radiologist report before the learned trial Court regarding the age determination. The learned trial Court has also failed to consider the medical report which does not support the prosecution case and there is no injury found in prosecutrix’s private parts with regard to the incident. The learned trial Court has also failed to consider the medical report which does not support the prosecution case and there is no injury found in prosecutrix’s private parts with regard to the incident. The learned trial Court has also failed to consider the delay in lodging the F.I.R. and (PW/04) has not supported the case of prosecution and there are various contradictions and omissions in the statement. The impugned judgment of conviction passed by the learned trial Court has resulted in the miscarriage of justice because the learned trial Court has convicted the appellant only on the basis of presumption which is against the principle of natural justice. Therefore, the judgment of conviction and sentence imposed upon on the accused/appellant is liable to be set aside. 8. Reliance has been placed on this Court’s judgment dated 16.10.2024 in the matter of Deepak Verma v. State of Chhattisgarh passed in CRA No. 392/2021 on this Court’s judgment dated 25.10.2024 in the matter of Nandu Yadav v. State of Chhattisgarh passed in CRA No. 578/2020 and in the matter of Birad Mal Singhvi v. Anand Purohit , AIR 1988 SC 1796 . 9. Ex adverso, learned counsel appearing for the State supported the impugned judgment and submits that the appellant has committed heinous crime of rape against the minor girl. The learned trial Court after appreciating the evidence and the material collected by the prosecution has rightly convicted and sentenced the appellant. The prosecution has rendered sufficient and credible evidence for proving the commission of offence by the accused/appellant and the learned trial Court has appreciated the evidence in correct perspective and has recorded the finding of the guilt of the accused, so the impugned judgment is well merited and no interference is called for by this Court, as such the impugned judgment deserves to be dismissed. 10. We have heard both the counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 11. It is clear from the record of the learned trial Court that the learned trial Court has framed charges under Sections 376-AB of IPC and Section 6 of Protection of Children from Sexual Offences Act, 2012 (POCSO) against the appellant and after appreciation of oral and documentary evidence, convicted the appellant under Section 376-AB of IPC and sentenced as described in para 01 of this judgment. 12. 12. As per the prosecution, the prosecutrix was of 11 years old on the date of incident i.e., 05.05.2018. The prosecutrix (PW/03) has stated her date of birth as 23.05.2007. The mother (PW/01) of the prosecutrix stated that her daughter is aged about 11 years and she was born on May, 2007. The father (PW/02) of the prosecutrix has also stated that his daughter is aged about 11 years and he does not remember her date of birth. 13. Dr. Preeti Singh (PW/6) stated that the prosecutrix was aged about 11 years. (PW/05) Rajendra Kumar Salam, Secretary, Gram Panchayat Aasulkhar, Police Station-Bhanupratappur, Kanker has stated that the police demanded birth register and he gave birth registration register of Gram Panchayat Asulkhar and as per this register, at serial No. 190, entry was made on 26.08.2016 and as per this entry, date of birth of the prosecutrix is 23.05.2007, the said register is Ex. P/11 and the order of Executive Magistrate is Ex. P/12. The notice of original birth certificate is Ex. P/13 and he gave birth certificate Ex. P/14. He admitted this suggestion of defence that the birth certificate of the prosecutrix stating the date of birth 23.05.2007 was issued on 26.08.2016 and also admitted this suggestion that he does not know on what basis the entry was made. Thereafter, he admitted this suggestion of defence that he was not posted at Alwarkala Panchayat on 2007. He also admitted this suggestion that he issued this certificate on order of Tahsildar, Bhanupratappur. 14. (PW/10) Amar Singh Nureti, Assistant Teacher Panchayat, Primary School Alwarkala has stated that the police seized admission discharge register of his school and at serial No. 117 name of the prosecutrix was written and as per this register, her date of birth is 23.05.2007 and she took admission on 18.6.2012 in Class I, the said register is Ex. P/19 and the certified copy of this register is Ex. P/19-C. In cross- examination, he admitted that he was posted in this school on 2013 and also admitted this suggestion that entry was not made by him and his predecessor made this entry and he also admitted that he does not know on what basis the date of birth of the prosecutrix was entered in this register. 15. P/19-C. In cross- examination, he admitted that he was posted in this school on 2013 and also admitted this suggestion that entry was not made by him and his predecessor made this entry and he also admitted that he does not know on what basis the date of birth of the prosecutrix was entered in this register. 15. Close scrutiny of statements of all witnesses clearly shows that no legally admissible document was produced by the prosecution as class teacher (PW/10) Amar Singh Nureti was not the author of the entry made in register (Ex. P/19) and it is also clear that (PW/05) Rajendra Kumar Salam Secretary, Gram Panchayat, Asulkhar has issued the birth certificate on 26.08.2016, but the learned trial Court estimated the age of the prosecutrix as 11 years at the time of recording her evidence and in question no. 4 the prosecutrix replied that she was studying in Class VII th . Dr. Preeti Singh (PW/6) finds in normal investigation that the victim’s menstruation was not started and she did not attain her puberty. So, looking to the medical examination of Doctor and estimated age by the learned trial Court, it is clear that the prosecutrix was aged about 11-12 years when her medical examination was taken place on 6.05.2018 and at the time of her evidence recorded on 26.11.2018. As such, the prosecution has proved its case beyond reasonable doubt that on the date of incident, the prosecutrix was below 18 years of age. 16. Prosecutrix (PW/03) stated that on the date of incident, the accused/appellant enticed away her goat to Hundara. In search of goat the prosecutrix along with the accused/appellant Kailash and the appellant’s son Tushar went towards the forest and in the midway, the accused/appellant Kailash sent his son back and near four trees, the accused/appellant threw the victim/prosecutrix on the ground and he tried to commit rape upon her. In para 21 of her cross-examination she admitted that the accused/appellant did not insert his penis in her vagina, he only placed it on top. However, she was being questioned by the prosecution which reads as thus:- In para 31 of her cross-examination, she admitted this suggestion of defence that the accused/appellant tried to commit wrong things with her and he only just touched her vagina. 17. Dr. However, she was being questioned by the prosecution which reads as thus:- In para 31 of her cross-examination, she admitted this suggestion of defence that the accused/appellant tried to commit wrong things with her and he only just touched her vagina. 17. Dr. Preeti Singh (PW/6) examined the prosecutrix on 6.05.2018 i.e., on the next date of the fateful incident and she did not find any external injuries, but after opening the labia majora with the finger, there was about 0.2 cm abrasion between the urinary bladder and the hymen and about 0.3 cm abrasion on the upper part of the labia minora. There was redness between the labia minora and the hymen, the hymen was not torn, four swabs were taken by the doctor, two swabs were swabbed from the labia minora, majora and vaginal walls and the other two swabs were taken from the vaginal smear and it was found that the vaginal smear was clean, a vaginal slide was made, one swab was showing red color as if it had come from the wound area, the swab and slide were dried and sealed and was sent for F.S.L. upon doctor’s suggestion. The said F.S.L . report is Ex. P/29 and as per this report, human sperm was found in Article A-01 frock, Article A-02 panty, Article B-01 vaginal smear slide, Article C-01 and C-02 vaginal swabs, and sexual intercourse was done with the prosecutrix. She gave her report vide Ex. P/16 in which she admitted her signature on A to A part and B to B part. Dr. Preeti Singh (PW/6) admitted the suggestion of defence that she did not find any injury in labia majora and she did not find any fresh bleeding and she opined about attempt of sexual intercourse. However, she denied the suggestion of defence regarding redness by saying that it can occur due to being unhygienic. In her cross- examination, prosecutrix (PW/03) remained firm and she clearly admitted that accused/appellant tried to insert his penis in her private parts and as per doctor’s report, abrasion was found in her private parts. 18. Section 3 of the POCSO Act, 2012 is reproduced hereinbelow for ready reference:- ‘3. In her cross- examination, prosecutrix (PW/03) remained firm and she clearly admitted that accused/appellant tried to insert his penis in her private parts and as per doctor’s report, abrasion was found in her private parts. 18. Section 3 of the POCSO Act, 2012 is reproduced hereinbelow for ready reference:- ‘3. Penetrative sexual assault .- 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 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 or makes the child to do so to such person or any other person.” 19. The F.S.L. report also supported the prosecution case and sperm was found in vaginal slide of the prosecutrix. As such, it is proved beyond reasonable doubt that the accused/appellant inserted his penis or accused/appellant had committed sexual intercourse with the prosecutrix who was below 18 years of age at the time of incident. So, the learned trial Court has rightly convicted the appellant under Section 376-AB of IPC and under Section 6 of POCSO Act, 2012. 20. As regards sentence, at this stage, the learned counsel for the appellant submits that the incident took place on 05.05.2018 and Section 6 of the POCSO Act, 2012 was amended on 16.08.2019 and Section 376-AB of IPC was amended on 11.08.2018 as per Gazette Notification dated 11.08.2018 and he filed copy of Gazette Notification dated 11.08.2018 in which the criminal law amendment Act, 2018 was published and as per this notification, the Amendment Act, 2018 shall be deemed to have come into force on 21.04.2018. 21. This Court in the matter of Nandu Yadav (supra) held in paras 31 & 32 which reads as under:- “31. 21. This Court in the matter of Nandu Yadav (supra) held in paras 31 & 32 which reads as under:- “31. Now coming to the issue of appropriate punishment, the appellant has been convicted under Section 376AB of IPC for imprisonment till the natural life and a fine of Rs. 25,000/- and in default of payment of fine, additional R.I. for 6 months. According to Section 376AB of IPC, the minimum sentence is 20 years which may extend to life imprisonment which means the natural life of a person. The learned trial Court has sentenced the appellant applying provisions of Section 42 of the POCSO Act. 33. The Hon’ble Division Bench of this Court in the matter of Deepak Verma vs. State of Chhattisgarh, CRA No. 392 of 2021 vide judgment dated 16.10.2021 while dealing with the unamended provisions of Section 6 of the POCSO Act observed in paras 30 & 31 held as under:- “30. The learned trial Court has convicted the appellant both under Section 6 of the POCSO Act and Section 376AB of the IPC but in view of Section 42 of the POCSO Act, which provides for alternate punishment which is greater in degree and as such, the appellant has been sentenced for the offence punishable under Section 376AB of the IPC. 31. Earlier, before amendment, Section 6 of the POCSO Act provided that whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After amendment, i.e., w.e.f. 16.08.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than 20 years. The incident took place on 25.6.2018 and as such, Section 6 of the POCSO Act, which stood as before 16.08.2019 would be applicable in the present case and as such, this Court is of the view that instead of convicting the appellant for the offence under Section 376AB of the IPC and sentencing him to rigorous imprisonment for 20 years with fine of Rs. 50,000/-, the appellant be convicted under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for 10 years with fine of Rs. 50,000/- and in default of payment of fine, to further undergo 1 years rigorous imprisonment. It is ordered accordingly.” 22. 50,000/-, the appellant be convicted under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for 10 years with fine of Rs. 50,000/- and in default of payment of fine, to further undergo 1 years rigorous imprisonment. It is ordered accordingly.” 22. In the light of above cited judgment, and in the present case it is clear that before the Section 6 of the POCSO Act provided for punishment with rigorous imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life and shall also be liable to fine. After the amendment, i.e., w.e.f. 16.08.2019, the said Section provides for rigorous imprisonment for a term which shall not be less than twenty years. It is also clear that on 05.05.2018 i.e., on the date of incident, Section 376-AB of IPC was not amended and amendment was published on 11.08.2018. Thus, instead of convicting the appellant for the offence under Section 376-AB of IPC, the appellant was convicted under Section 6 of the POCSO Act and sentenced to rigorous imprisonment for ten years with a fine of Rs. 50,000/-. 23. Applying the law laid down by the Hon’ble Division Bench of this Court in the matter of Deepak Verma (supra) and Nandu Yadav (supra) , since the incident had taken place on 05.05.2018 when the unamended provisions of Section 6 of the POCSO Act were in force, the present appellant is convicted and sentenced to undergo rigorous imprisonment for a period of 10 years under Section 6 of the POCSO Act instead of Section 376-AB of IPC. The fine amount and default stipulation is not interfered with. So, in the interest of justice the accused/appellant shall be entitled to the set-off for the period already undergone by him. 24. Ex consequenti, the instant appeal is partly allowed with the extent indicated above.