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:-

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. 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 o