JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Vijay Mehra has filed D.B. Cr. Misc. Suspension of Sentence Application No. 589/2019 praying that the sentence awarded upon him by the court of Special Judge, POCSO Act, No. 1, Kota be suspended and the applicant be released on bail. 2. The applicant/appellant Vijay Mehra was tried by the court of Special Judge, POCSO Act, No. 1, Kota and the said court vide impugned judgment dated 13.8.2018 convicted the appellant for the offences under Sections 376(2)(i) IPC read with Section 5(m)/6 of Protection of Children from Sexual Offences Act. 3. Having convicted the appellant for the aforesaid offences, the trial Judge vide a separate order of even date sentenced the appellant to undergo life imprisonment and to pay a fine of Rs. 50,000/-, in default of payment of fine to further undergo additional six months imprisonment. 4. Aggrieved against his conviction and sentence, the appellant has filed D.B. Cr. Appeal No. 410/2018. 5. Record has already been received from the trial court. 6. Mr. Govind Prasad Rawat, the learned counsel for the appellant has relied upon the testimony of Dr. Arun Sharma (P.W. 12) and medico-legal report submitted by him in respect of victim, a child aged 9 years. 7. After going through the testimony of Dr. Arun Sharma (P.W. 12) and medico-legal report (Exhibit-P/5), we were inclined to suspend the sentence, considering that the applicant is in custody since 8.7.2015 and has undergone about three years and nine months of actual sentence. 8. At this stage, Mr. Javed Choudhary, learned Public Prosecutor prayed that instead of suspending the sentence, appeal itself be decided since the record has been received from the trial court. 9. Learned counsel for the appellant has submitted that he is ready and willing to argue the appeal also. 10. On the joint request made by the learned counsel for the appellant and the learned Public Prosecutor, we proceed to decide the appeal [D.B. Cr. Appeal No. 410/2018]. 11. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/3) presented by Trilok Kanwar (P.W. 2) mother of the victim before Abdul Rashid (P.W. 8), who at the relevant time was incharge of Police Station RK Puram, Kota City. Appeal No. 410/2018]. 11. The criminal proceedings in the present case were set into motion on the basis of written report (Exhibit-P/3) presented by Trilok Kanwar (P.W. 2) mother of the victim before Abdul Rashid (P.W. 8), who at the relevant time was incharge of Police Station RK Puram, Kota City. On the basis of written report (Exhibit-P/3), a formal FIR (Exhibit-P/4) bearing No. 263/2015 was registered at Police Station RK Puram, Kota City for the offences under Sections 376 IPC and Section 3/4 of POCSO Act. The written report (Exhibit-P/3) when translated into English, reads as under:- "To SHO Police Station RK Puram, Kota Dated 6.7.2015 Subject: Regarding lodging of the report. Sir, It is submitted that I am resident of village Rojari. Name of my daughter is (name withheld to protect her identity). She is aged 9 years. Today at about 2:00 PM, I and my husband Prahlad Singh had taken our son Dipanshu for taking medicine and exorcism (Jhada) to village Shivpura. My son Dipendra and my daughter were alone at the home. I and my husband returned at about 4:30 PM. My daughter told me that Vijay took her to the vacant house of Madam and made her lie on the mattress. Thereafter he removed her underwear. The accused also removed his pajama and had put his penis on her vagina. Upon which, she told Vijay that she is feeling pain. He gagged her mouth. Upon narration of the incident by our daughter, I and my husband called Dharmendra and confronted him with what was stated by our daughter. Upon which, Dharmendra told that he was also present at the spot but our daughter had not told him anything. Thereupon, I told Vijay that I will lodge the report at police station and shall take my daughter for the medical examination. At this, Vijay told that we should accompany him in his vehicle. I refused and said that we will not go with you. At this juncture, Vijay asked my daughter as to what she is saying and slapped my daughter. It is requested that the report be registered. Legal action be taken against Vijay. Dharmendra Sharma did nothing wrong with my daughter. Applicant Sd/- Smt. Trilok Kanwar 29 w/o. Prahlad Singh by caste Rajput Resident of Rojari, Behind M.D. Kishan Hospital. Mb. No. 9829498873 9772822938" 12. It is requested that the report be registered. Legal action be taken against Vijay. Dharmendra Sharma did nothing wrong with my daughter. Applicant Sd/- Smt. Trilok Kanwar 29 w/o. Prahlad Singh by caste Rajput Resident of Rojari, Behind M.D. Kishan Hospital. Mb. No. 9829498873 9772822938" 12. From the perusal of the above written report (Exhibit-P/3), following facts are discernible: (a) That the accused Vijay Mehra had not run away from the spot. (b) That immediately after the narration of the incident by the victim, the accused was called upon by parents of the victim. (c) That the accused offered to take the victim and her parents for medical examination to the doctor. (d) That upon refusal of the parents, Trilok Kanwar (P.W. 2) mother of the victim went to the police station to lodge the report. 13. Learned counsel for the appellant has submitted that the conduct of the appellant as noticed in the written report absolve him of the alleged crime. 14. Learned counsel for the appellant has rightly not assailed the evidence of the age of the victim. The victim, as per prosecution evidence is aged nine years. 15. The prosecution in order to secure the conviction of the appellant, examined thirteen witnesses namely, Prahlad Singh (P.W. 1), Trilok Kanwar (P.W. 2), Dipendra Singh (P.W. 3), Vivek Sihang (P.W. 4), Vijendra Singh (P.W. 5), Jai Prakash (P.W. 6), Laxmi Kanwar (P.W. 7), Abdul Rasid (P.W. 8), Siya Ram Vaishnav (P.W. 9), Vinod Garg (P.W. 10), Ashok Kumar (P.W. 11), Dr. Arun Sharma (P.W. 12) and Alok (P.W. 13). Thereafter, the statement of the accused appellant was recorded under Section 313 Cr.P.C. He denied all incriminating circumstances and pleaded false implication. No evidence was led in defence. 16. Since in the present case, medical evidence is important, we shall first refer to the testimony of Dr. Arun Sharma (P.W. 12). 17. Dr. Arun Sharma (P.W. 12) in the court deposed that on 7.7.2015, he was posted as Medical Jurist. He had medico-legally examined the victim and during her examination no evidence was found that any attempt was made to penetrate in the vagina. This witness further stated that if there was some penetration on the outer portion of vulva, no definite opinion could be given. In the medial report (Exhibit-P/5) following opinion regarding injury was noted:- "No injury seen. He had medico-legally examined the victim and during her examination no evidence was found that any attempt was made to penetrate in the vagina. This witness further stated that if there was some penetration on the outer portion of vulva, no definite opinion could be given. In the medial report (Exhibit-P/5) following opinion regarding injury was noted:- "No injury seen. Labia majora, labia minora normal, small central normal opening, not fresh torn, no external injury seen. Hymen is having small normal opening." 18. The medical report (Exhibit-P/5) wherein doctor had given his opinion immediately after examination, reads as under:- "No evidence of vaginal penetration seen and no definite opinion can be given regarding slight vulval penetration. However, vulval swab, blood, saliva taken, sealed and handed over to police. 19. In the present case, the medical evidence rule out any penetration. We are conscious that the victim was aged nine years, whereas the appellant was 38 years old. In case any forcible attempt is made by a young stout male to cause penetration upon a victim aged nine years, there is bound to be evidence of penetration resulting into some abrasions, scratch, tear or bruise on the internal and external part of body of victim. Therefore, from the accompanying circumstances, the opinion of the doctor is well fortified. Hence, we can safely say that in the present case, penetration had not taken place. 20. Now, in the context of above medical evidence, the testimony of victim assume importance. 21. The victim appeared in the court as P.W. 7. She in the court deposed that at about 2:00 PM, she was playing with her brother when accused came and gave him two rupees and asked her to bring one cigarette and purchase some sweets with another rupee. She further stated that when she brought cigarette, the accused caught hold of her hand and took her to the room in the house of Madam. He bolted the door and laid mattress. The victim further says that the accused had put her penis on her vagina and when she complained of pain, he gagged her mouth. The victim further stated that immediately car of the parents arrived and the accused left. 22. We cannot discard the testimony of the victim in totality even though she is a child witness. 23. The victim further says that the accused had put her penis on her vagina and when she complained of pain, he gagged her mouth. The victim further stated that immediately car of the parents arrived and the accused left. 22. We cannot discard the testimony of the victim in totality even though she is a child witness. 23. In the present case, there is no evidence of previous enmity or sour relationship between the parents of the victim and the accused. Therefore, the parents will be the last person to falsely implicate the appellant by putting reputation of their daughter at stake. 24. Taking the medical evidence into consideration, what we can safely assume and infer, is that the accused made an attempt to cause penetration and since at the nick of moment, car of the parents arrived, the accused left the victim. 25. In the present case, it is a case of an attempt to cause penetration. Therefore, the offence will fall under Section 376/511 IPC. Offence, to us, will also not fall under Section 5(m)/6 of POCSO Act. We cannot term the act of the appellant as an aggravated penetrated sexual assault. The offence to us will fall under Section 3(c) of POCSO Act which defines penetrative sexual assault and is punishable under Section 4 of POCSO Act. 26. Consequently, taking totality of circumstances after going through the entire evidence, we modify the conviction of the appellant from Section 376(2)(i) IPC read with Section 5(m)/6 of POCSO Act to Section 376/511 IPC read with Section 3(c)/4 of POCSO Act. 27. In view of above, the conviction of the appellant for the offences under Section 376(2)(i) IPC read with Section 5(m)/6 of POCSO Act is set aside, and instead thereof, the appellant is convicted for the offences under Sections 376/511 IPC read with Section 3(c)/4 of POCSO Act. 28. Having converted the offence for which the appellant has been convicted, we modify the sentence from life imprisonment to seven years RI. The sentence of fine and default clause is maintained. 29. With the above conversion of offence and modification in sentence, the present appeal is disposed of. 30. In view of disposal of the main appeal, D.B. Cr. Misc. Suspension of Sentence Application No. 589/2019 also stands disposed of. 31. The sentence of fine and default clause is maintained. 29. With the above conversion of offence and modification in sentence, the present appeal is disposed of. 30. In view of disposal of the main appeal, D.B. Cr. Misc. Suspension of Sentence Application No. 589/2019 also stands disposed of. 31. We direct the Secretary, Rajasthan State Legal Services Authority to ensure that the compensation as per the scheme prepared by the Rajasthan State Government under Section 357(A) Cr.P.C. is paid to the victim through her mother. The Secretary, Rajasthan State Legal Services Authority shall take all active steps for payment of the compensation under Section 357(A) Cr.P.C. in consonance with the Victim Compensation Scheme prepared by the State of Rajasthan, and amount of compensation shall be deployed for the welfare of the victim. The amount shall be paid without disclosing identity of the victim. The Secretary, Rajasthan State Legal Services Authority shall show great sensitivity towards the victim while disbursing the amount. 32. A copy of this order be sent to the Secretary, Rajasthan State Legal Services Authority, and to the Secretary, Rajasthan High Court Legal Services Committee, Jaipur.