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2. The appellant/accused is in jail. The appeal was fixed for final hearing as per order dated 01.02.2018.

3. Facts leading to the institution of the present appeal, in short, are as under:-

A. The victim girl aged 9 years was residing alongwith her parents, her sister and brother at Morewadi, Ambajogai. On 17.09.2014 at about 07.00 am while the victim was returning to house from grocery shop of Vijay Pawar and reached in front of house of one Ambad, the accused Lakshmikant Nagorao Kulkarni came from her behind and on saying her of whose big size footwear she wore took her near to him and touched the breast of the victim and said her what (4) criapl148.17 is this, it would become big when she would enter into 5th standard and on saying her to allow him to touch her breast pressed the breast of the victim by both the hands. At that time while the victim was attempting to rescue from him as soon as accused saw one person coming, he left the victim. Then after the victim went to her house informed the incident to her mother (PW-3) in frightened condition. The mother of the victim told the incident to her husband the complainant (PW-2) when he returned to house. The complainant father of the victim confirmed incident from victim and tried to find out said person on the basis of description of said person given by the victim as fat, short, big berry with spect, but said person was not found. Then PW-2 traced out the said person and came to know that on 18.09.2014 the said person committed similar act with the daughter of his maid, due to which the father of the said victim girl had lodged complaint against the accused. Thereafter, the complainant went to Ambajogai (City) Police Station on 19.09.2014 and gave information about the incident which was reduced into writing by ASI Borse, on the basis of the same police registered crime No.194/2014 for the offences under Sections 354, (5) criapl148.17 354-A of the IPC, Sections 8,10 & 12 of the POCSO Act and Sections 3(w)(i), 3(2)(v)(a) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act against the accused and the investigation was commenced.

9. To hold that the prosecution has proved offence under Section 354 of the IPC, the prosecution has to establish that the accused outraged modesty of the victim girl by touching to her breast. To attract the offence under Section 354-A of the IPC the prosecution has to prove that the accused did the act of physical contact to the victim girl by touching to her breast and advances involving unwelcome and explicit sexual overtures. Moreover, to hold that the accused has committed the offence under Section 8 of the POCSO Act, the prosecution has to prove that he has committed ( 24 ) criapl148.17 sexual assault i.e. with sexual intent he touched breast of the victim girl which involves physical contact without penetration within the meaning of Section 7 of the POCSO Act on 17.09.2014 at about 07.00 am on the road of Vidyut Nagar, Morewadi, Ambajogai. Similarly, to hold that the accused has committed the offence punishable under Section 10 of the POCSO Act, the prosecution has to establish that the accused touched to breast of victim girl of 9 years old and also said her that seize of the breast would be increased after going to 5th class and thereby committed the offence of aggravated sexual assault on child below 12 years. As regards offence under Section 12 of the POCSO Act the prosecution has to prove that accused with sexual intent pointing finger to the breast of the victim girl uttered words that it would become big when she would go in 5th standard and followed her and committed sexual harassment to her. To prove these facts, the prosecution has mainly relied upon the evidence of the victim girl (PW-5), her mother (PW-

14. PW-3 mother of the victim has stated that on 17.09.2014 her daughter the victim went to her sister to return her saree and returned to home at about 08.30 am. She found the victim silent. After her husband went away, the victim told her that when she was returning from house of her maternal aunt alongwith her son Harsal, one person came from her backside and asked her of whom she wore big footwear and also further asked her in which standard she was studying. At that time she replied that she was in ( 29 ) criapl148.17 4th std. Then he came close to her and pointed towards her breast and asked what is that. He also told her that breast becomes big when she would enter in 5th std. He also touched her breast. He also caught hold her at that time, she attempted to escape from him. He left her as soon as he saw one person going from the road. Thereafter, she went to shop of Pawar. As said shop was closed, she went to Neha Grocery shop. She found that said person was talking in the laundry and she observed that she was returning from another road, at that time same person was chasing her. The victim gave description of the accused as recorded earlier. PW-3 stated that she narrated the incident to her husband (PW-2). Though PW-3 has been cross-examined at length nothing is found in favour of the accused. She has denied that accused does not remember what happened on that day at the relevant time. She stated that she does not know whether he is suffering from Polar disorder with manifacie disease. She has denied that nothing has happened as deposed by her about conduct of accused on 17.09.2014. She also denied that what is committed by the accused is not committed by him with his sound condition. Thus, nothing is found in favour of the accused in the cross-examination of ( 30 ) criapl148.17 PW-3 mother of the victim girl and she has corroborated the evidence of the victim girl on the material particulars of incident and her evidence is in the nature of previous statement made to her by the victim girl about the incident admissible under Section 157 of the Evidence Act.

18. Learned counsel appearing for the accused submitted that the prosecution has not proved that the alleged act attributed to the accused amounts to aggravated sexual assault within the meaning of Section 9 of the POCSO Act and therefore, finding of the trial Court that the prosecution has proved ( 33 ) criapl148.17 offence punishable under Section 10 of the POCSO Act is not correct. Section 9(m) of the POCSO Act says that whoever commits sexual assaults on a child below twelve years is aggravated sexual assault. Sexual assault is defined under Section 7 of the POCSO Act which says that 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. As referred earlier the victim girl was aged 10 years on the day of incident i.e. 17.09.2014, the said fact is not disputed by the accused. Thus, it is obvious that on the day of said incident the victim girl was below 12 years. As mentioned earlier, while referring the evidence of victim girl, she deposed that the accused has touched her breast and caught hold her. The said act of the accused amounts to sexual assault. Therefore, it can be very well said that the accused has committed sexual assault on the victim who is a child below 12 years of age and therefore, the said act of the accused amounts to aggravated sexual assault within the meaning of ( 34 ) criapl148.17 section 9 of the POCSO Act which is punishable under Section 10 of the POCSO Act. Therefore, the argument advanced by the learned counsel for the accused that the prosecution has not proved the offence under Section 10 of the POCSO Act or that the act alleged against the accused does not amount to aggravated sexual assault is not accepted.