JUDGMENT (Prayer: Appeal filed under Section 374(2) of the Code of Criminal Procedure,1973, against the judgment of conviction and sentence dated 05.10.2016 by the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, Ariyalur District, in Spl.S.C.No.15 of 2016.) 1. This Criminal Appeal is filed by the sole accused in Spl.S.C.No.15 of 2016 on the file of the learned Sessions Judge, Fast Track Mahila Court, Ariyalur, Ariyalur District, in and by which, the appellant/accused was convicted for an offence punishable under Section 6 of the Protection of Children from Sexual Assault Act, 2012 (POCSO Act) and was sentenced to undergo rigorous imprisonment for 10 (Ten) years and to pay a fine of Rs.1,000/- (Rupees One Thousand only) and in default of payment of fine, to undergo simple imprisonment for 6 (six) months. 2. P.W.1 is the mother of the victim child aged about 10 years. The child is also a mentally retarded and she cannot speak even though she can hear. On 01.06.2016, at about 10.00 a.m., the victim child was playing at the rear side of the house of one Mathiazhagan which was unoccupied. When P.W.1 was in the opposite house washing clothes suddenly heard the child crying and wailing and immediately, when she rushed inside the said house of Mathiazhagan, she found the appellant had removed the clothes of the child and was lying on the top of the child. On seeing P.W.1, the appellant stood up and ran way and P.W.2 gave him a chase and followed him upto his house and there was a quarrel and he hit P.W.2 is the allegation. 3. After registering the case in Crime No.144 of 2016 for offence under Sections 3, 4, 5(k) and 5 (m) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act,), P.W.18 took up the case for investigation and laid a final report proposing the appellant/accused as guilty for the offence under Sections 3 & 4, 5 (k) (m) of POCSO Act r/w 6 of the POCSO Act. On considering the materials on record, the trial court framed a single charge that on 01.06.2016 at about 10.00 a.m. the appellant/accused had made the victim child to lay down on the floor and committed penetrative sexual assault and hence, he had committed an offence punishable under Section 6 of the POCSO Act. Upon questioning, the appellant/accused denied the charge and stood trial. 4. Upon questioning, the appellant/accused denied the charge and stood trial. 4. The prosecution in order to prove the charge, examined the mother of the victim as P.W.1 and the father of the victim as P.W.2 and the other witnesses being P.Ws.3 to 8 and marked Ex.Ex.P.1 to P.11. Upon questioning about the material evidence and the incriminating circumstances on record, the appellant/accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence and therefore, the trial court proceeded to hear the submissions of the learned Special Public Prosecutor appearing on behalf of the prosecuting agency and the learned counsel appearing on behalf of the defence and found the appellant/accused guilty of the charge and accordingly, punished him under Section 6 of the POCSO Act as stated supra. 5. Heard the learned counsel appearing for the appellant/accused and the learned Government Advocate (Criminal Side) appearing on behalf of the respondent/State and perused the material records of this case. 6. The learned counsel appearing for the appellant/accused considering the fact that the appellant/accused is confined in prison for more than six years and one month from date of filing of the FIR, i.e., from 01.06.2016 onwards, would straightaway make his submissions on the provision for which the appellant/accused can be convicted. He would submit that this is a case where the victim child was not examined by the prosecution. He would further submit that even the evidence of P.W.1 the mother of the child, is not to the effect that the child was totally mentally retarded and the child is in a position to understand things and, therefore, non examination of the child in this case is a serious omission on behalf of the prosecution. Therefore, the learned Government Advocate (Criminal Side) would submit that in the absence of any description from the child, the only evidence on record relating to the act committed by the appellant/accused is the evidence of P.W.1, even leaving out the cross examination of P.W.1, the chief examination of P.W.1 is as follows:- Therefore, P.W.1's deposition which is the only evidence in this case also does not specifically speak of any penetrative sexual assault. This apart, the evidence of P.W.11, the Doctor, who examined the child in chief examination is as follows:- 7. This apart, the evidence of P.W.11, the Doctor, who examined the child in chief examination is as follows:- 7. The learned counsel would therefore submit that here in this case unambiguous evidence is that the appellant/accused was committing sexual assault on the child, but, there is not even an iota of positive evidence to suggest penetrative sexual assault . In that view of the matter, the learned counsel would submit that the conviction for offence under Section 6 of the POCSO Act is unwarranted. 8. The learned Government Advocate (Criminal Side) would on the other hand submit that the victim is a mentally retarded child and therefore, the act of the appellant/accused comes under section 5 (k) of the POCSO Act and since the child is also less than 12 years of age, Section 5 (m) of the POCSO Act is also attracted and the prosecution has duly produced the certificate of mentally retardation as well as the birth certificate of the child to prove its case and therefore, the trial court has rightly convicted the appellant/accused under Section 6 of the POCSO Act. When this court questioned about the actual act committed the appellant/accused, the learned Government Advocate (Criminal Side) would submit that even if the evidence of P.W.1 does not specifically state about any act coming within the definition of penetrative sexual assault under Section 3 of the POCSO Act, still, the sexual assault committed by the appellant/accused would fall within the definition of Sections 9(k) & 9 (m) of the POCSO Act and therefore, the offence would be punishable for a term not less than 5 years but, upto 7 years under POCSO Act. Considering the nature of the evidence in this case, the learned Government Advocate would submit that even then, the appellant/accused should be punished for the maximum imprisonment awardable under Sections 9(k) & 9 (m) of the POCSO Act i.e., imprisonment for 7 years. He would further submit that as far as the allegations regarding the previous enmity is concerned, just because there are some enmity between the neighbours, evidence of P.W.1 cannot be discarded and it cannot be presumed to be a false evidence and therefore, he would submit that the said contention is without any merits. 9. I have considered the rival submissions made on either side and also perused the material records of this case. 10. 9. I have considered the rival submissions made on either side and also perused the material records of this case. 10. As contested by the learned counsel for the appellant, it is the bounden duty of the prosecution to discharge its initial onus when it is specifically alleged that the appellant/accused had committed penetrative sexual assault. P.W.1's evidence does not specifically say so. It was also not clarified by the court or by the prosecuting agency. P.W.1 has generally stated that after making the child lying down, the appellant/accused was committing the act. But, considering the evidence of P.W.11, the doctor, the age of the victim child, the manner in which the offence is said to have happened, it is clear that the act committed by the appellant/accused is an aggravated sexual assault and therefore, the appellant/accused is liable to be convicted for offence punishable under Section 10 of the POCSO Act. Considering the fact that the victim child is mentally retarded , this is not a case for imposition of the minimum sentence of 5 years. The maximum punishment is 7 years. The appellant/accused has now undergone imprisonment for 6 years, 2 months and 1 day. Therefore, I am of the view that the same can be imposed as punishment on the appellant/accused. 11. Considering the fact that the victim is a mentally retarded child, the trial court has directed the District Legal Services Authority to assess and award compensation to the victim for rehabilitation and welfare of the child. In that view of the matter, the District Legal Services Authority, Nammakal District is directed to issue notice forthwith, if not so far issued, to P.W.1, the mother of the victim Child namely, Latha W/o Murugan, Thenkatchi Perumal Natham, Kizha Theru, Udayarpalayam Taluk, Ariyalur District and upon such notice, P.W.1 shall apply in due form and the case shall considered for award of compensation under the applicable victim compensation scheme and maximum permissible compensation can be awarded and paid out to the child. In view thereof, this Criminal Appeal is partly allowed and the conviction of the appellant/accused for the offence punishable under Section 6 of the POCSO Act, 2012 and the sentence thereof to undergo rigorous imprisonment for Ten years and to pay a fine of Rs.1,000/- are set aside and modified as one under Section 9(k) and (m) of the POCSO Act r/w 10 of the POCSO Act and the appellant is sentenced to rigorous imprisonment for the period already under gone by him so far (6 years, 2 months and 1 day) and the appellant/accused shall pay a fine of Rs.1,000/- (so far no fine has been paid by the appellant) and in default to undergo simple imprisonment for a further period of three months. The appellant/accused is directed to be released forthwith, if fine amount is paid and if his detention is not required in connection with any other case.