Nawneet Kumar Pandey, J. – This appeal has been preferred under Section 374 (2) and 389 (1) of the Code of Criminal Procedure, 1973 for setting aside the judgment dated 04.02.2021 and the order of sentence dated 08.02.2021 passed by the learned Additional District Judge-VI-cum-Special Judge, POCSO Act, Buxar in POCSO Case No. 13 of 2017, CIS No. 5 of 2017, arising out of Buxar (Mahila) P.S. Case No. 21 of 2017, whereby the appellant has been convicted and sentenced as under: –

2. The victim is a child of 5 years of age. As per allegation, the appellant has committed rape upon her. We do not quote the name of the victim to avoid her identity in public domain. For the sake of convenience, the victim, hereinafter, is referred as ‘X’.

3. Asha Devi, PW 4 is mother of the victim, on whose statement, (Fardbeyan), Buxar (Mahila) P.S. Case No. 21 of 2017 was registered under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act, 2012. As per her statement recorded on 21.05.2017, she with her husband and two daughters, aged about 3 years and 5 years (the victim) had gone to her Maike on the occasion of marriage of her younger sister. The ill-fated day (18.05.2017) was the day of marriage of her younger sister. In the house, there was a ceremonious ambiance. The female inmates of the house were engaged in ritual of the marriage. At the occasion of Lawa ceremony (a ceremony performed at the occasion of marriage in the locality in which the female members of the house goes out to the Bhansar for roasting paddy), the female inmates of the house had gone to Bhansar. PW 4 did not go to attend the Lawa ceremony, as she was feeling abdominal pain. She was taking rest in her house. She assumed that the X was also with the female members, who had gone at the Lawa ceremony. When the female members returned, PW 4 did not notice her daughter X with them. Then the family members started searching the victim and they found her in the tent, which was erected for the ceremony. She was lying there in a pool of blood, her Lehanga was wet in blood and her condition was serious. She was writhing in pain and was respirating with trouble. On asking of PW 4, she stated that Munna Bhaiya (the appellant) had asked her that her mother was calling her to the temple, where she was performing worship. The victim went with the appellant, who brought her in a bush situated besides the tent and committed rape upon her and after threatening the victim not to disclose the occurrence to anybody, he brought her again in tent and after leaving her in tent, he fled away. The victim was not in a position to move, as she was serious. The family members immediately brought her to hospital, where she was treated. It has been mentioned further that during course of the treatment, two stitches were done at her private part. When the condition of the victim improved, PW 4 lodged the FIR in the Mahila police station. Due to unawareness of legal implication, the informant had washed the Lehanga, which the victim was wearing at the time of rape.

4. On the basis of Fardbeyan of PW 4, Mahila P.S. Case No. 21 of 2017 was registered for the offences punishable under the sections noted-above. The investigating authorities submitted charge-sheet No.31 of 2017 on 31.05.2017 against the appellant under Section 376(2)(i) of the Indian Penal Code and clause (i) of Section 376 (2) was in existence at the time of the occurrence, but was subsequently omitted by Section 4 of the Amendment Act, 22 of 2018 with effect from 21.04.2018 and its place, a new sub-section 3 was added by the same