JUDGMENT : R.P. Dholaria, J. 1. The present appeal has been filed by the appellant-accused under Section 374 of the Criminal Procedure Code, 1973, against the judgment and order dated 16.02.2017 passed by learned 2nd Additional Sessions Judge/Special Judge, Anand in Special (POCSO) Case No. 13 of 2015, whereby the appellant-accused was convicted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code (herein after referred to as "IPC" for short) and under Section 6 read with Section 5(m) of the POCSO Act. By the impugned judgment, under Section 363 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of three years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 366 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of four years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 376 of the IPC, the appellant was sentenced to undergo simple imprisonment for a period of seven years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed and under Section 6 read with Section 5(m) of the POCSO Act, the appellant was sentenced to undergo simple imprisonment for a period of ten years and ordered to pay Rs. 5,000/- fine and in default of payment of fine, simple imprisonment for a period of three months was imposed. All the sentences were ordered to run concurrently. 2. The case of the prosecution in short is that on 14.01.2015, since it was festival of Uttarayan and while the complainant-mother of the victim was in company of her husband who was present in the house and her children were playing outside the house; at around 4:00 p.m., one of her son namely Kartik rushed to her informing her that the victim is forcibly made to accompany one person. Soon thereafter, parents of the victim and other relatives went in search of the victim and at around 5:00 p.m., two of her relatives brought the victim and as people residing nearby the scene of offence ran after the person, he was soon caught hold of which later on revealed that it was none other than the present appellant-org. accused, resulting into the present appellant taken to police custody and when the victim was asked about as to what has happened to her, she disclosed the entire incident as to how she was made to accompany the appellant under pretext and the mode and manner in which she was subjected to forceful sexual intercourse by the appellant. Thereafter, an FIR came to be registered with Petlad Town Police Station by the mother of the victim. 2.1. Investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.2. After filing of closing purshis by the prosecution, further statement of accused person under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.3. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellant-accused. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 16.02.2017 passed by learned 2nd Additional Sessions Judge/Special Judge, Anand in Special (POCSO) Case No. 13 of 2015, the appellant-accused has preferred the present appeal before this Court. 3. At the outset of hearing, learned advocate Mr. Pratik Barot appearing for the appellant pointed out that learned trial court wrongly convicted the appellant-accused under Section 6 read with Section 5(m) of the POCSO Act and instead of that, he could have been tried for the offence punishable under Section 10 read with Section 9(m) of the POCSO Act, since, the Doctor who examined the victim has not at all corroborated the version of the prosecutrix-victim and clearly opined that her hymen was found intact and there was no penetration. 4. 4. On the other hand, Ms. Hansa Punani, learned APP pointed out that this is a special statute enacted for protection of children from the offences of sexual assault and for such sort of harassment, etc., special provision has been made and the offence is well defined in various provisions of law and that has been rightly taken into consideration by the learned trial court and the learned trial court has rightly convicted the appellant-accused for the offence punishable under Section 5(m) read with Section 6 of the POCSO Act, which calls for no interference. 5. In order to decide the aforesaid controversy involved in the present case, this Court deems it appropriate to deal with precise factual scenario and material evidence on record. The precise factual scenario of the prosecution case could be stated that on 14.01.2015, the people of nearby vicinity were flying kites in-front of victim's house. At that juncture, the appellant-accused came in with a proposal that the victim should accompany him for buying kites and he also told the victim that he would marry her and thereafter, her mouth was pressed and his penis was also inserted in her mouth and thereafter, he even lead her to lie down and slept over her and penetrated his penis into her vagina and thereby committed the offence punishable as stated above. 6. The victim deposed the above facts in her examination in chief as stated above. 7. P.W. 5-Dr. Bhattacharya, who had examined the victim on the same day, deposed that at that time, the victim herself gave the same history before him, but upon her physical examination, her hymen was found intact. No external or internal injury was found over her person and according to his opinion, there was a case of sexual assault, but there was no penetration. 8. In view of aforesaid nature of evidence on record, though the appellant-accused came to be charged for the offence punishable under Section 6 read with Section 5(m) of the POCSO Act and resultantly, he was also found guilty by the learned trial court under the said provision of law. In order to decide the aforesaid controversy Sections 3 to 10 of the POCSO Act are reproduced herein: "3. In order to decide the aforesaid controversy Sections 3 to 10 of the POCSO Act are reproduced herein: "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. 4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. 5. Aggravated Penetrative Sexual Assault-(a) Whoever, being a police officer, commits penetrative sexual assault on a child-- (i) within the limits of the police station or premises at which he is appointed; or (ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as, a police officer; or (b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child. (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the forces or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where the said person is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits penetrative sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or (g) whoever commits gang penetrative sexual assault on a child. (h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits penetrative sexual assault on a child, which-- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) in the case of female child, makes the child pregnant as a consequence of sexual assault; (iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or Infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or (l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or (m) whoever commits penetrative sexual assault on a child below twelve years; or (n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or (o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or (p) whoever being in a position of trust or authority of a child commits penetrative sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or (r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or (s) whoever commits penetrative sexual assault on a child in the course of communal or sectarian violence; or (t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault. 6. Punishment for aggravated penetrative sexual assault.- Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. 7. Sexual assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. 8. Punishment for sexual assault.- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. 9. 8. Punishment for sexual assault.- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. 9. Aggravated Sexual Assault.-(a) Whoever, being a police officer, commits sexual assault on a child-- (i) within the limits of the police station or premises where he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which appointed; or (iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as a police officer; or (b) whoever, being a member of the armed forces or security forces, commits sexual assault on a child-- (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the security or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where he is known or identified as a member of the security or armed forces; or (c) whoever being a public servant commits sexual assault on a child; or (d) whoever being on the management or on the staff of a jail, or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force commits sexual assault on a child being inmate of such jail or remand home or protection home or observation home or other place of custody or care and protection; or (e) whoever being on the management or staff of a hospital, whether Government or private, commits sexual assault on a child in that hospital; or (f) whoever being on the management or staff of an educational institution or religious institution, commits sexual assault on a child in that institution; or (g) whoever commits gang sexual assault on a child. Explanation.--when a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or (h) whoever commits sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or (i) whoever commits sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or (j) whoever commits sexual assault on a child, which-- (i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (I) of section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to perform regular tasks, temporarily or permanently; or (ii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; or (k) whoever, taking advantage of a child's mental or physical disability, commits sexual assault on the child; or (l) whoever commits sexual assault on the child more than once or repeatedly; or (m) whoever commits sexual assault on a child below twelve years; or (n) whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child; or (o) whoever, being in the ownership or management or staff, of any institution providing services to the child, commits sexual assault on the child in such institution; or (p) whoever, being in a position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or anywhere else; or (q) whoever commits sexual assault on a child knowing the child is pregnant; or (r) whoever commits sexual assault on a child and attempts to murder the child; or (s) whoever commits sexual assault on a child in the course of communal or sectarian violence; or (t) whoever commits sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or (u) whoever commits sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated sexual assault. 10. Punishment for aggravated sexual assault.- Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine." 9. This Court has considered the rival submissions came to be advanced by learned advocates appearing for the respective parties and also gone through the evidence of material witnesses as well as the provisions of law. On the overall evaluation of evidence on record, it appears that the oral evidence of witnesses as well as victim is not getting full corroboration from medical evidence and the medical evidence is clearly revealing that learned Doctor, who soon after the incident on the same day, examined the victim, had not found any external or internal injury over the person of the victim and her hymen was found to be intact, but he found signs of sexual assault over her person. In that view of the matter, learned trial court could have looked into the provisions of law and instead of applying Section 5(m) of the POCSO Act, Section 9(m) of the POCSO Act could have been applied in view of aforesaid evidence on record and the appellant-accused could have been found guilty for the offence punishable under Section 10 of the POCSO Act and resultantly, his convicted recorded under Section 376 of the IPC require to be quashed and set aside. 10. For the reasons recorded above, while maintaining conviction of the appellant-accused under Section 363 and 366 of the IPC, his conviction under Section 376 of the IPC stands quashed and set aside and his conviction so recorded by the learned trial court under Section 6 read with Section 5(m) of the POCSO Act, stands altered to Section 10 of the POCSO Act and the appellant-accused shall serve out the sentence of simple imprisonment for a period of five years. Rest of the judgment shall remain unaltered. The appellant shall be released from jail, after he serves out the sentence of five years, if he is no longer required in connection with any other offence. R & P be sent back to the learned trial court, forthwith. 11. In view of disposal of main appeal, Criminal Misc. Application No. 1 of 2019 would not survive and stands disposed of accordingly. Rule is discharged.