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12. PW2 is the victim girl. She has deposed that when herself and her sister were playing infront of the house, Paramesha came. By offering the chocolate he took her to the house of Murugesha and a wooden cot was there in the house. He made her to lie on the cot and disrobed her. Thereafter he pressed her breast and penetrated sexually and there was a pain on her private part. After sometime she worn her clothes and came to her house and while going accused gave her Rs.2.00/- to purchase chocolate. When she came out of the house of accused her sister asked her why she was weeping. On that she explained what has been done to her by the accused.

17. Keeping in view the above said proposition of law, if the evidence of PW2 is perused it discloses the fact that when herself and PW3 were playing in front of their house accused took her to his rented house, made her to lie on the cot and disrobed her. Thereafter he touched her vagina pressed her breast and he laid down on her. She has further deposed that she has been sexually assaulted. Thereafter, she worn the clothes and came out. At that time PW3 saw PW2. PW3 has also corroborated the evidence of PW2. During the course of cross examination, though she has admitted the fact before the Magistrate that she has deposed as per the say of the mother about the nature of the acts which accused has done on her. Even as could be seen from the statement of the victim recorded under Section 161 of Cr.P.C., she has clearly deposed that after taking her to the house, accused removed his pant and pressed her chest and thereafter he slept on her. She has specifically stated that a penetrative sexual assault has been committed on her. This evidence of PW2 is not corroborated with the evidence of PW6 and Ex.P4. In Ex.P4 the Doctor who examined the victim has opined that there are no recent evidence to suggest that sexual intercourse has been taken place. Under such circumstances, the contention of the learned counsel for the appellant/accused that there is no material evidence to convict the accused for the alleged offences is not acceptable. But however, there is some force in the contention of the learned counsel for the accused that there is no penetrative sexual assault. When there is no penetrative sexual assault as contended by the prosecution, then the provisions of Section 376 of IPC and Section 5(m) of the Act are not attracted. For the purpose of brevity I quote Section 375 of IPC which reads as under:

20. In that light, the conviction and sentence passed by the trial Court for the offence punishable under Section 366A, 376 (2)(j) of IPC and Section 5(m) of the Act is not correct. But however, there is evidence to show that the accused/appellant has sexually assaulted minor PW2- the victim, and in that light Section 7 of the Act is going to be attracted. For the purpose of brevity I quote Section 7 of the Act which reads as under:

"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."

21. As could be seen from the above said Section, if any person sexually assaults and involves physically in contact, without penetration, then he is said to have committed a sexual assault and the said act must be with sexual intention. By going through the evidence of PW2 it clearly goes to show that the accused has touched her vagina, pressed her breast and also he disrobed the victim, removed his clothes and laid on her. That itself is sufficient to attract the provisions of Section 7 of the Act. The trial Court without looking into the said fact has wrongly convicted the accused under Section 376 (2)(j) of IPC and Section 5(m) of the Act. In that light the judgment of the trial Court requires to be modified. But there is evidence to show that accused eloped minor PW-2 from lawful custody of the guardian and committed the offence under Section 7 of the Act.