Touching Is Not Rape Unless There Is Penetration: Supreme Court Warns Against Presumptive Misapplication of POCSO and Rape Provisions

“No Medical or Testimonial Evidence of Penetration – Courts Cannot Assume What Law Requires to Be Proved”: Supreme Court of India set aside the conviction of the appellant under Section 376AB IPC and Section 6 of the POCSO Act, after finding that the core legal requirement of penetration was entirely absent. The Court ruled that the act of touching a child's private parts, while unquestionably criminal and condemnable, does not constitute rape or penetrative sexual assault under the established legal framework.

The Bench of Justice Ahsanuddin Amanullah and Justice Joymalya Bagchi categorically held:

“The presumption by the Trial Court as upheld by the High Court that there was penetrative sexual assault, cannot be sustained for the simple reason that the same is neither supported by the medical report nor by the statement of the victim herself on three different occasions.”

The Supreme Court thus modified the conviction to Section 354 IPC (assault or criminal force to outrage modesty) and Section 10 of the POCSO Act (aggravated sexual assault), emphasizing that judicial interpretation must be grounded in evidence, not inference.

“When the Law Demands Proof of Penetration, It Must Be Established – Not Implied from Outrage”: Supreme Court Defends Statutory Precision in Child Sexual Offence Cases

The appellant, Laxman Jangde, had been sentenced to 20 years rigorous imprisonment for the alleged offence of raping a child under 12 years of age. Both the Trial Court and the High Court of Chhattisgarh found him guilty under Section 376AB IPC and Section 6 POCSO, relying on the victim’s statements about inappropriate touching and the accused touching his own genitals in front of the child.

However, the Supreme Court made a clear and consequential legal distinction between “touching” and “penetration”, stating:

“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.”

Further, the Court criticized the interpretive overreach by the lower courts:

“From the reading of all the three statements which have common thread, the direct allegation is of touching the private parts of the victim… The conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act, cannot be sustained.”

The Court reproduced the full text of Section 375 IPC and Section 3(c) of POCSO, reinforcing that penetration—whether by body part or object—is a sine qua non for a conviction of rape or penetrative assault.

“Not Every Heinous Act Is Rape – Criminal Force With Sexual Intent Must Be Punished, But Accurately”: Supreme Court Upholds Legal Clarity Over Emotion

While modifying the conviction, the Court made it clear that acts of sexual violence against children—even when not rising to the level of penetration—still constitute grave offences. It concluded:

“What has come right from the beginning by way of complaint/FIR, subsequent deposition of the victim as also, the other witnesses… will come under the purview of Section 354 of the IPC and Section 9(m) of the POCSO Act.”

Accordingly, the Supreme Court convicted the appellant under Section 354 IPC and Section 10 of the POCSO Act, and reduced the sentence to 7 years, with the directions that the sentences under both sections shall run concurrently.

However, the Court upheld the ₹50,000 fine and directed that it be paid to the child victim as compensation within two months.

“Trial Courts Must Not Criminalize Beyond Statute – Presumption Cannot Substitute Proof”: A Supreme Court Warning on Judicial Restraint

The judgment reasserts the Supreme Court’s consistent line that criminal liability must strictly conform to the legal definitions and evidentiary thresholds. The bench cautioned that a conviction for rape or penetrative sexual assault cannot rest on moral outrage or assumptions, no matter how serious the allegations appear.

“The courts below travelled beyond the scope of the complaint and evidence in convicting the appellant for penetrative assault.”

This decision sends a strong signal to trial and appellate courts to adhere faithfully to the statutory ingredients of offences under IPC and POCSO, and not to allow judicial presumption to replace the prosecutorial burden of proof.

Conviction for Rape Reversed, Re-Sentenced for Sexual Assault

Ultimately, the Supreme Court modified the judgment as follows:

“We modify the conviction of the appellant to that under Section 354 of the IPC and under Section 10 of the POCSO Act. Accordingly, the sentence also stands modified to that of R.I. of five years under Section 354 of the IPC and seven years under Section 10 of the POCSO Act, to run concurrently.”

The appeal was allowed to the extent indicated, and all pending applications were disposed of.

Date of Decision: 10 September 2025