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FINDINGS ON FACTS

20. We have gone through the evidence of the prosecutrix (PW-2) very carefully. She has stood by her version in the FIR (Ex. PW-6/A) based on her complaint (Ex. PW-2/A). In May 2013, she was a child less than 14 years‟ old, living as a step-daughter of the appellant in the one room tenancy taken out in the house of PW-1. Her evidence as also the explanation offered by the appellant in his statement under Section 313 Cr. PC reveals that she had been living as a step-daughter with the appellant and her mother (PW-3) from the time of infancy, soon after death of her father, the mother having entered into the second marriage. She confirmed that the appellant had throughout treated her as a daughter but had started making improper advances from the time she had turned 11 (which would be the time she was reaching puberty). Noticeably, when asked by the defence counsel to elaborate, the prosecutrix during her cross- examination spoke about the appellant being in the habit of touching her breasts and private part. A girl of age of eleven is generally endowed by nature with the capacity to make a distinction between an affectionate parental touch and an inappropriate touch. It is the inappropriate nature of the physical contact to which the appellant would subject her which is described by her as "chhedkhani". Pertinent to mention here, this is the narration of improper advances made by the appellant over the period as was also given by the prosecutrix to PW-16, a representative of the NGO whose services had been roped in by PW-4, and set out in detail in her report (Ex. PW- 16/A).

24. For the foregoing reasons, we find no merit in the challenge by the appellant to the findings on facts returned by the learned trial judge in the impugned judgment. It has been proved beyond the pale of any doubt that the appellant had subjected the prosecutrix (PW-2), who was living with him as his step-daughter, on several occasions from sometime 2009 onwards to improper touch, the contact made being with her breast and private parts and, thus, clearly with the intention, or knowledge of likelihood, of outraging her modesty, such touch and contact in the given facts and circumstances being use of criminal force. These facts constitute the offence punishable under Section 354 IPC, with which the appellant was charged.

Section 7 of POCSO Act "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.‖

34. The acts involving "physical contact" by touching "with sexual intent", the vagina or breast of a child are covered within the mischief of the offence of "sexual assault" defined in Section 7 of the POCSO Act. These very acts, under the general criminal law, have all along been treated as assault or use of criminal force (as the case may be) against a woman (which expression denotes, per Section 10 Cr.P.C., "a female human being of any age") from which the intention to outrage, or knowledge of likelihood of thereby outraging, her modesty may be drawn so as to attract the penal provision under Section 354 IPC.