JUDGMENT : Pankaj Purohit, J. This Criminal Appeal is preferred against the judgment and order dated 12/17.07.2018 passed by learned Special Judge, POCSO/FTC, Additional Sessions Judge, Dehradun, in Special Sessions Trial No. 58 of 2016 “State Vs. Noor Hasan”, whereby, the said Court convicted the appellant under Section 376 IPC and under Section 3/4 of POCSO Act, 2012 but sentenced him only under Section 4 of POCSO Act and directed him to undergo rigorous imprisonment for a period of 12 years with a fine of Rs. 40,000/-, and in case of default he was directed to undergo one year’s additional rigorous imprisonment. 2. Facts necessary to decide the controversy, briefly stated, are that as per the case of the prosecution, an FIR was lodged against the appellant-accused in Police Station – Rishikesh, District Dehradun by informant PW2 - Shanti Devi, grandmother of the victim, with the allegations that her granddaughter, who was 10 years old, stayed with her. According to the informant, 10-12 days before 05.04.2013, when her granddaughter was watching television at home, appellant came to her house and tried to sexually assault her granddaughter. On that day, the victim could not tell the story to her grandmother, but, on 05.04.2013, she revealed the entire story to her grandmother. On the basis of aforesaid FIR, chick was registered in Police Station Rishikesh. An FIR No. 09 of 2013 (Ex. Ka-9) was registered under section 376, 511 IPC against the appellant Noor Hasan on 05.04.2013 at 15:30 hours. 3. Investigation ensued; victim was medically examined and her statement under Section 164 Cr.P.C. (Ex.ka-3) was recorded on 12.04.2013 by Judicial Magistrate, Rishikesh. After investigation, the charge-sheet was submitted against the appellant and the cognizance was taken. Charges were framed by learned Special Judge, POCSO against the appellant under Sections 376/511 IPC as well as under Section 3/4 of the POCSO Act. The appellant denied the charges and claimed to be tried. 4. The prosecution, in order to establish the case, has examined as many as six witnesses in order to substantiate its case, namely PW-1 the victim, PW-2 Smt. Shanti Devi grandmother of victim and informant, PW-3 Shri Kalam Singh, scribe of FIR, PW- 4 Dr. Richa Thapliyal, PW-5 S.I. Yogesh Chandra, Investigating Officer and PW-6 Constable 44 Jyoti. 5. 4. The prosecution, in order to establish the case, has examined as many as six witnesses in order to substantiate its case, namely PW-1 the victim, PW-2 Smt. Shanti Devi grandmother of victim and informant, PW-3 Shri Kalam Singh, scribe of FIR, PW- 4 Dr. Richa Thapliyal, PW-5 S.I. Yogesh Chandra, Investigating Officer and PW-6 Constable 44 Jyoti. 5. After recording the evidence of prosecution witness, statements of the appellant-accused were recorded under section 313 Cr.P.C. In his defence, he stated that he did not commit the crime and he was innocent. In defence evidence, he produced DW-1 Ashok Thapa and DW-2 Harish. 6. The trial Court after examining the evidence of the prosecution witnesses and perusal of the documentary evidence came to the conclusion that the prosecution succeeded in proving the charges against the appellant-accused beyond all reasonable doubt, and convicted and sentenced the appellant as mentioned in para 1 of this judgment. 7. Before proceeding any further, it would be apt to narrate the oral testimony of prosecution witnesses, in brief. 8. The victim, who was examined as PW1 in the Court, was put to test by the court in order to judge her competency. After perusal of reply given by her, the court came to the conclusion that she was competent to testify. Accordingly, her evidence was recorded. PW1 has deposed that the appellant-accused, who was their neighbour, used to often visit their house to meet her grandmother for some work. About three years ago, when she was in Class-III or IV, her grandmother was not at home and her uncle was making tea and she was watching television at home. Appellant came from behind, covered her mouth, held her hands and put his hand inside her underwear. After few days, when he again came to their house, the victim, being enraged, narrated the entire story to her grandmother. Her statement under Section 164 Cr.P.C. was also recorded whereon Ex. Ka-1 was marked. 9. PW2- Shanti Devi is the grandmother of the victim. According to her, on the date of the incident, her grand-daughter was 5-6 years old. On that day, when she went to get fodder for cattle, the victim was watching television. Her statement under Section 164 Cr.P.C. was also recorded whereon Ex. Ka-1 was marked. 9. PW2- Shanti Devi is the grandmother of the victim. According to her, on the date of the incident, her grand-daughter was 5-6 years old. On that day, when she went to get fodder for cattle, the victim was watching television. Meanwhile appellant, their neighbour, came and caught her and put his hand inside her underwear and tried to persuade on the pretext of giving her a gaming mobile and also made the victim sit on his lap. Meanwhile, her younger son came and the appellant fled away. On the next day, the victim narrated the entire story to her and then she lodged the report which is Ex. Ka-2. 10. PW3- Kalam Singh is the brother of PW2-Shanti Devi. On 05.04.2013, he was told by his sister about the misdeeds committed by the appellant. Then he took his sister and victim to P.S. Shyampur where the report Ext.Ka- 2 was lodged. 11. PW4 Dr. R.Thapliyal, has medically examined the victim and prepared the medical report Ext.Ka-3. The medical officer opined that “no definite opinion regarding rape can be given”. 12. PW4 has also proved the pathology report of the victim as Ex.Ka-4. In the report, it was noted that “no spermatozoa were seen”. 13. PW5-S.I. Y.C. Pandey is the I.O. of the case. He has deposed about conducting investigation and on completion of same, submission of charge-sheet Ex.Ka-8 in the Court. 14. PW6 Head Constable Jyoti is a formal police witness who has proved about taking the victim for medical examination. 15. Thereafter, statement of appellant-accused was recorded u/s 313 Cr.P.C. in which he denied the allegations. DW1 Ashok Thapa and DW2 Harish were examined on his behalf. 16. We have heard learned counsel for the parties and made perusal of entire oral and documentary evidence available on record. 17. The appellant defence witnesses DW-1 Ashok Thapa and DW-2Harish were examined to substantiate the defence version that the PW-2 Shanti Devi hae to pay Rs. 3.5 Lakhs to the appellant - Noor Hasan and when the appellant- Noor Hasan asked the money, he was falsely implicated. DW-1 Ashok Thapa deposed that appellant made him acquainted with Munna Singh @ Dharm Singh ( husband of Shanti Devi) for purchasing a land and the deal was finalized for Rs. 4 Lakhs. He gave in advance Rs. 3.5 Lakhs to the appellant - Noor Hasan and when the appellant- Noor Hasan asked the money, he was falsely implicated. DW-1 Ashok Thapa deposed that appellant made him acquainted with Munna Singh @ Dharm Singh ( husband of Shanti Devi) for purchasing a land and the deal was finalized for Rs. 4 Lakhs. He gave in advance Rs. 1 Lakh on 04.01.2010 to the appellant- Noor Hasan at the time of execution of agreement to sale. On 30.06.2010 Dharm Singh died; DW-1 Ashok Thapa asked the appellant either to get the sale –deed executed or to repay the money advanced. But neither the land was sold to him nor did repay the money. DW-2 Harish, was the witness of agreement to sale between DW-1 and Dharm Singh. Dharm Singh was the husband of Shanti Devi-PW2. 18. Heard Mr. Lokendra Dobhal learned counsel for the appellant and Mr. J.S. Virk, learned Deputy Advocate General for the State. 19. Although a vehement attempt was made by the learned counsel for the appellant to impress upon this Court that he was falsely implicated due to some money transaction between the appellant and PW-2 Shanti Devi- informant, but when this Court did not found the argument convincing and acceptable in view of the defence put up the appellant, the counsel for the appellant limited his argument to this effect that the appellant has wrongly been convicted under section 376 IPC and 3/4 of the POCSO Act and was wrongly awarded the sentence recorded by the learned court below. He strenuously submitted after referring the evidence on record that the offence alleged against the appellant can only travel to the extent of “ Sexual Assault” as defined under section 6 of the POCSO Act. He also submitted that the charge was framed against the appellant under section 376/511 IPC and section 3/4 of the POCSO Act but he was wrongly convicted under section 376 IPC and section 3/4 of the POCSO Act. According to the learned counsel for the appellant the conviction and sentence recorded by the learned Sessions Judge POCSO needs to be set aside and modified to under section 9/10 of the POCSO Act. 20. Per contra, the learned Deputy Advocate General Mr. J.S. Virk supported the judgment and conviction recorded by the learned Special Judge (POCSO)/FTC, Additional Sessions Judge, Dehradun. 20. Per contra, the learned Deputy Advocate General Mr. J.S. Virk supported the judgment and conviction recorded by the learned Special Judge (POCSO)/FTC, Additional Sessions Judge, Dehradun. He would submit that the evidence of PW-1 the victim would bring home the charges proved against the appellant and no interference is warranted in the impugned judgment and conviction and sentence so awarded. 21. Since the learned counsel for the appellant argued that the conviction and sentence deserves to be modified instead of a clean acquittal, it is imperative upon this Court to venture into the argument advanced by the learned counsel for the appellant. 22. In order to appreciate the argument the learned counsel for the appellant, a keen look into the relevant provision of the law is required and accordingly section 375 IPC and section 3 and 7 of the POCSO Act are quoted herein below:- “[375. Rape.- A man is said to commit “rape” if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1.- For the purposes of this section, “ vagina” shall also include labia majora. Explanation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Explanation 1.- A medical procedure or intervention shall not constitute rape. Explanation 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] “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. 7. Sexual Assault. 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.” 23. In order to appreciate the submissions made by the learned counsel for the appellant that the offence against the appellant can only travel upto to the limit of sexual assault and would not fall within the penetrative sexual assault as defined under the POCSO Act as well as under the definition of rape under section 375 IPC, deeper scrutiny of the evidence on record is required. 24. The statement of the victim was recorded by the learned Judicial Magistrate, Rishikesh under section 164 Cr.P.C. on 12.04.2013 and on material particulars she stated “ rHkh uwj glu us eq>s idM+ fy;k vkSj esjh itkeh ds vUnj gkFk Mky fn;k rFkk esjk eaqg ncksp fy;kA fQj mlus viuh isaUV dh pSu [kksyh vkSj viuh is'kkc okyh txg esjh itkeh ij yxk nhA esjs pkpk jlksbZ esa [kkWls rks blus eq>s,dne NksM+ fn;kA “She examined as PW-1 before the learned trial court, wherein, she stated” uwj glu vUnj vk x;kA eSa uhps fxjh xqfM+;k mBk jgh Fkh rc,dne ls ihNs ls blus esjk eqWg nck fn;k vkSj gkFk idM+ fy;k vkSj esjh v.Mj fo;j esa gkFk Mkydj xyr gjdr dhA** 25. If we appreciate the evidence available on record in the light of the definition of penetrative sexual assault, sexual assault and rape, we find force in the submissions of the learned counsel for the appellant that the offence committed by the appellant-accused can only reach to the offence of sexual assault. By pushing his hand into the pajama or underwear would only facilitate a touch to the private parts mentioned in under section 7 of the POCSO Act with sexual intent. The victim even did not stated that the appellant touched her private parts. From the statement or evidence brought on record it cannot be said that there was any allegation of penetration into vagina, mouth, urethra or anus of the victim. We have also examined the medical examination report Ext. The victim even did not stated that the appellant touched her private parts. From the statement or evidence brought on record it cannot be said that there was any allegation of penetration into vagina, mouth, urethra or anus of the victim. We have also examined the medical examination report Ext. Ka-3 which also belies the theory of penetration as there were no sign of inflammation seen on the examination of private parts and hymen was also found intact. In view of the matter, the argument advanced on behalf of the appellant-accused find favour with this Court and we are of the considered opinion that the appellant-accused was wrongly convicted under section 376 IPC and section 3/4 of the POCSO Act and was awarded the sentenced as referred in para no.-1 of this judgment. 26. From the above discussion we are of the opinion that the judgment impugned deserves to be interfered with, the conviction and sentence of the appellant under section 376 IPC and section 3/4 of the POCSO Act is hereby quashed. The appellant deserves to be convicted under section 9 (m)/10 of the POCSO Act for the reason that the victim is a child below 12 years of age, for an offence of aggravated sexual assault. 27. The appellant-accused is convicted under section 9(m) and 10 of the POCSO Act and is sentenced for seven years rigorous imprisonment and a fine of Rs. 30,000/- out of which Rs. 25,000/- shall be paid to the victim and in default of payment of fine, the appellant shall undergo an additional six months simple imprisonment. 28. The criminal appeal is partly allowed, the conviction and sentence are modified accordingly and the appellant-accused is in jail. He shall serve the sentence awarded by this Court. 29. Let the lower court records of the case be sent back for necessary action.