ORDER : 1. Perused office note dated 25.04.2019, inadvertently in oral judgment dated 11.04.2019, at page No.5, date of order of trial Court is mentioned as 01.09.2016 instead of 21.09.2016. The said error is ordered to be rectified. The said date of order of trial Court be read as 21.09.2016. Registry to issue writ accordingly. 2. In view of the above, office note dated 25.04.2019 stands disposed of accordingly. JUDGMENT : Date. 11-04-2019 1. The convict has preferred present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 21.9.2016 recorded by the learned Additional Sessions Judge, Valsad in POCSO Case No.17 of 2015. While considering the application for suspension of sentence, the Court was not inclined to suspend the sentence and consequently, therefore on 27.3.2019, the Court passed the following order :- “ORDER IN CRIMINAL APPEAL Heard learned advocates for the respective parties. Admit. Learned APP waives service of notice of admission for and on behalf of the respondent-State. Learned advocate for the appellant requests to fix the appeal for final disposal so that he may argue at the point of reduction of sentence. List the matter for final disposal on 11.04.2019. In the meantime, Registry is directed to call for R&P for the concerned trial Court so as to reach this Court on or before the next date of hearing. ORDER IN CRIMINAL MISC. APPLICATION Heard learned advocates for the respective parties. Considering the submissions made by the learned advocates for the respective parties and having perused the impugned judgment as well as material available on record, it appears that at the time of incident, the victim was infant aged about three years and she had become victim of sexual abuse, which is corroborated by the documents available on record. In that view of the matter, this court is not inclined to suspend the sentence. Therefore, no case is made out for suspension of sentence. Hence, Application stands dismissed. Rule is discharged.” 2. In pursuance of the aforesaid order, the registry has placed this matter for final hearing and also circulated the paper book. 3. In that view of the matter, this court is not inclined to suspend the sentence. Therefore, no case is made out for suspension of sentence. Hence, Application stands dismissed. Rule is discharged.” 2. In pursuance of the aforesaid order, the registry has placed this matter for final hearing and also circulated the paper book. 3. The summary of proceedings may be stated as under : 3.1 It is the case of the prosecution so also the say of original first informant i.e. the father of the victim inter-alia alleging that on 14.04.2015 at around 5:30 to 7:45 PM in the evening, the applicant-original accused was the one who was instrumental in calling the victim to his house once having locked the door of the said house from inside, he allegedly indulged into physical contact with the victim thereby committed an offence punishable under Sections 376(2)(i), 354(1)(i) and (ii) of the Indian Penal code and under Section 4 of the POCSO Act, for which an FIR first in point was registered with Valsad Rural Police Station. 3.2 Santlal Gayaprashad Ravat, father of the victim filed an FIR/complaint with Valsad Rural Police Station, dist.: Mehsana, as I-C. R.No.67 of 2015 on 14.04.2015. 3.3 After completion of the investigation, the Police submitted charge-sheet before the Sessions court. But since the offence under Section 376(2)(i) of the Indian Penal Code was exclusively triable by the Sessions Court, the case was then committed to the Court of Sessions under Section 209 of the code of Criminal Procedure, 1973 and numbered as POCSO Case No.17 of 2015. 3.4 The learned Sessions Judge framed charge against the present appellant-accused for the offences punishable under Sections 376(2)(i), 354(1)(i) and (ii) of the Indian Penal Code and under Section 4 of the POCSO Act, to which the accused person not pleaded guilty to the charge and it was the defence of the accused person that he is innocent and has not committed any offence as alleged. 3.5 To prove the guilt against present appellant-accused, prosecution examined in all 9 witnesses and also produced documentary evidence, the learned Additional Sessions Judge, Valsad, and vide order dated 1.09.2016 convicted the appellant-original accused for the offence punishable under Sections 3541( i) and (ii) of the Indian Penal code and under Section 10 of the POCSO Act. 3.5 To prove the guilt against present appellant-accused, prosecution examined in all 9 witnesses and also produced documentary evidence, the learned Additional Sessions Judge, Valsad, and vide order dated 1.09.2016 convicted the appellant-original accused for the offence punishable under Sections 3541( i) and (ii) of the Indian Penal code and under Section 10 of the POCSO Act. 3.6 For committing the offence under Section 354-(1) (i) and (ii) of Indian Penal Code, the appellant is convicted and sentenced to imprisonment for a period of three years, with a fine of Rs.1000/- (Rupees One Thousand only). 3.7 For committing the offence under Section 10 of the POCSO Act, the appellant is convicted and sentenced to imprisonment for a period of seven years, with a fine of Rs.1000/- (Rupees One Thousand Only). In default of payment of fine under a respective heading, the appellant was further ordered to suffer further imprisonment of thirty days in total. 4. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused has preferred the present appeal by way of challenging the same. 5. At the outset of hearing, the learned advocate Mr. Pratik Barot submits that since the accused has already undergone sentence of about four years and manner in which the incident alleged to have occurred and the findings recorded by the learned trial Court, he would not like to claim clear acquittal so far as his conviction is concerned though he has a very arguable case so far as the punishment aspect is concerned. 6. Learned advocate Mr. Barot submitted that the punishment should be in commensurate with the offence alleged to have been committed and proved during the course of trial. Learned advocate Mr. Barot submitted that the learned trial Court after evaluating all the evidence on record clearly recorded that there was no penetration and consequently, therefore the offence of rape as made punishable under Section 376 was not made out. Though, the learned trial Court believed that the accused had committed the offence punishable under Section 10 of the Prevention of Children from Sexual Offences Act, 2012 and believed that there was an aggravated sexual assault over the infant though the doctor who examined soon after the incident within two hours from the occurrence had neither noted any external injury over her person nor even internal injuries and even her hymen was found intact. There was merely swelling over and around the parts of the vaginal. Even though, the samples were sent for the analysis of Forensic Science Laboratory, no such short of corroborative piece of evidence is available so as to link the present accused that he had even committed any sexual act on any part of the body linking the accused in crime in question and in that view of the matter, he submitted that in view of such sort of evidence on record and since the victim is aged about three years, the purpose would be served if the sentence may be brought down to the minimum prescribed to the extent of five years. 7. On the other hand, learned Additional Public Prosecutor Ms. Hansa Punani, strongly opposed for reduction of any sentence and she further submitted that the victim is an infant aged about three years no mercy be shown to the appellant-accused. 8. This Court has gone through the entire record and proceedings. As the victim was aged about three years, she could not be examined but the record and proceedings clearly indicates that within two hours from the time of alleged incident, the victim was taken to the hospital, the doctor who had examined the victim has vividly described in his deposition. Dr. Ashwin Ramanbhai Patel, vividly described wherein he clearly narrated that there was no injury over person of victim on any outer part of body or even inner part of the body including genital part except there was swelling over the part of the vaginal though her hymen was found to be intact. 9. In view of the above factual scenario, the learned trial Court has rightly convicted the accused relying upon Section 9, under Section 10 of the Prevention of Children from Sexual Offences Act, 2012 but so far as the punishment aspect is concerned, as discussed above, the person who was in jail and made to suffer sentence imposed by the learned Trial Court is reduced to five years from seven years under Section 10 of the POCSO Act, while maintaining the other directions as regards to the sentence and fine imposed upon him, it would serve the purpose. 10. 10. As a result, the appeal stands allowed in part while maintaining the conviction, the impugned judgment and order of conviction and sentence dated 21.9.2016 recorded by the learned Additional Sessions Judge, Valsad in POCSO Case No.17 of 2015 is modified to the extend that the sentence imposed upon by the learned trial Court under Section 10 of the POCSO Act is reduced to five years from seven years and rest of the directions and order as regards to the punishment shall remain unaltered. The appeal is allowed to the aforesaid extent and stands disposed of accordingly. 11. Record and proceedings, if any, be sent back to the concerned lower Court, forthwith.