Allegation Was of Touching, Not Penetration: Supreme Court Sets Aside Rape Conviction, Downgrades to Outraging Modesty Under IPC and POCSO

In a significant ruling Supreme Court of India held that "ingredients of penetrative sexual assault under Section 3(c) of POCSO and Section 375 IPC were not made out" against the appellant, who had been convicted of raping a girl under 12 years of age. The Court set aside his conviction under Section 376AB of IPC and Section 6 of the POCSO Act, replacing it with a lesser conviction under Section 354 IPC and Section 10 of the POCSO Act, in view of the absence of penetration in the alleged assault.

The judgment, delivered by a Bench comprising Justice Ahsanuddin Amanullah and Justice Joymalya Bagchi challenging the Chhattisgarh High Court's judgment dated 28.01.2025 which had upheld a 20-year sentence for the appellant under POCSO’s most stringent provisions.

“The Act of Touching Private Parts May Be Perverse, But Not Rape”: Court Clarifies Applicability of Section 3(c) POCSO and Section 375 IPC

The central question before the Court was whether the act attributed to the appellant—touching the private parts of the child victim without penetration—constituted rape or penetrative sexual assault under the law. After an in-depth examination of the evidence, particularly the victim’s consistent statements under Section 164 CrPC, and the absence of medical confirmation of penetration, the Court made a categorical finding:

“The so-called act of the appellant will come under the purview of Section 354 of the IPC and Section 9(m) of the POCSO Act. The conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act, cannot be sustained.”

The Court noted that the allegation was consistently limited to touching of private parts and mutual exposure, without any allegation or evidence of penetration, as defined under Section 375 IPC or Section 3(c) of POCSO.

“Penetration Not Established; Conviction Under Section 376AB IPC Unsustainable”: Supreme Court Relies on Victim's Consistent Testimony

Reproducing the statutory language of Section 375 IPC and Section 3(c) of the POCSO Act, the Court underscored that penetration, even slight, is a sine qua non for convicting under rape provisions. The Court was categorical:

"A plain reading of the evidence and other materials on record reveal that the offence made out from such allegation do not satisfy the ingredients of either Section 375 of the IPC or Section 3(c) of the POCSO Act."

Accordingly, the Court refused to uphold the presumption drawn by the trial and high courts regarding penetration, observing that:

"Such presumption… is neither supported by the medical report nor by the statement of the victim herself on three different occasions."

“Offence Falls Within Section 354 IPC and Section 9(m) POCSO”: Supreme Court Clarifies Scope of Non-Penetrative Assault

Based on the nature of the conduct described—touching with sexual intent—the Court held that the act, though criminal and reprehensible, fell under:

• Section 354 IPC (assault with intent to outrage modesty), and

• Section 9(m) read with Section 7 of the POCSO Act, which defines aggravated sexual assault on a child below 12 years.

The judgment thus reaffirmed the distinction between penetrative and non-penetrative sexual offences under the POCSO regime.

"The alleged act amounts to aggravated sexual assault under Section 9(m), not penetrative sexual assault," the Court clarified.

“Conviction Modified; Sentence Reduced to 7 Years and 5 Years Respectively”: Supreme Court Balances Legal Principle and Punitive Intent

Consequent to the modification in conviction, the Supreme Court reduced the appellant’s sentence from 20 years to 7 years under Section 10 of POCSO and 5 years under Section 354 IPC, to run concurrently.

However, the Court retained the ₹50,000 fine imposed by the lower courts as compensation to the victim, ordering its payment within two months.

"As far as the fine amount is concerned, the same is retained as ₹50,000 and should be paid to the victim as compensation within two months from today," the Court ordered.

The Court noted that the appellant had already spent over five and a half years in custody and factored this into its sentencing approach.

A Judicial Reminder on Precision in Criminal Categorisation Under POCSO

This ruling serves as an essential reminder of the judicial duty to calibrate punishment strictly in accordance with statutory definitions, especially under stringent laws like POCSO. While reiterating that crimes against children must be dealt with firmly, the Court emphasised that absence of evidence of penetration must prevent a miscarriage of justice through over-conviction.

The Supreme Court has once again asserted that sentiment cannot substitute for statutory precision, especially in cases where enhanced punishments under child protection laws carry mandatory minimums and long incarceration terms.

Date of Decision: 10th September 2025