Touching Minor’s Private Parts Not Rape or Penetrative Sexual Assault: SC

The Supreme Court has said a man cannot be convicted of rape and penetrative sexual assault, when the allegation is only of touching the private organs of the minor girl.

A bench of Justices Ahsanuddin Amanullah and Joymalya Bagchi modified the conviction of appellant, Laxman Jangde, from the offences under Section 376 AB of the IPC and under Section 6 of the POCSO Act, to those under Section 354 of the IPC and under Section 10 of the POCSO Act.

"From the said reading of all the statements which have common thread, the direct allegation is of touching the private parts of the victim and also at the same time, the appellant touching his private organs. In such view of the matter, we find that the conviction recorded under Section 376 AB of the IPC and under Section 6 of the POCSO Act, cannot be sustained,'' the bench said.

The appeal was directed against the judgment of January 28, 2025, passed by the Chhattisgarh High Court, by which the conviction and sentence imposed on the appellant by the Trial Court by its judgment of July 30, 2022 under Section 376 AB of the IPC and also, under Section 6 of the Protection of Children from Sexual Offences Act, 2012 had been upheld.

In view of the provision of Section 42 of the POCSO Act, which provides for alternate punishment, the sentencing was done only under Section 6 of the POCSO Act, by which the appellant was sentenced to undergo 20 years of rigorous imprisonment, along with a fine of Rs 50,000.

The appellant's counsel submitted that from the FIR, the subsequent statement of the victim recorded under Section 164 of the Code of Criminal Procedure, and the deposition of the victim-girl before the court during trial, it was clear that the offence under Section 376 AB as well as under Section 6 of the POCSO Act, was not proved.

He said the allegation was that the appellant had touched the private parts of the victim and put his hand on his sexual organs. Thus, the said allegation, which had been reiterated, both before the court in a statement recorded under Section 164 of the CrPC as also during trial, would clearly did not bring the behaviour under the purview of Section 376 AB of the IPC and also, under Section 6 of the POCSO Act since there had not been actual rape committed on the victim as there was no penetration.

He said Section 6 of the POCSO Act would also not be attracted because there was no penetrative sexual assault. At the worst, it could be a case under Section 354 of the IPC and under Section 9(m) of the POCSO Act.

Accordingly, the counsel submitted that the court could consider this vital aspect especially, in the background that the appellant had already spent five and a half years in prison.

The state counsel, on the contrary, contended that the appellant, having committed such offences, too, with a girl under 12 years of age, needed no sympathy and neither the conviction nor the sentence required any interference.

Having considered the matter in depth, the bench said, "We find substance in the submission of counsel for the appellant. A plain reading of the evidence and other materials on record reveal that the offence made out from such allegations do not satisfy the ingredients of either Section 375 of the IPC or Section 3(c) of the POCSO Act. Thus, to that extent, the conviction cannot be sustained".

Court opined that what had come right from the beginning by way of complaint or the FIR, subsequent deposition of the victim as also the other witnesses, the so-called act of the appellant would come under the purview of Section 354 of the IPC and Section 9(m) of the POCSO Act.

The bench held that the presumption by the Trial Court, as upheld by the High Cour,t that there was penetrative sexual assault, could not be sustained for a simple reason that it was neither supported by the medical report nor by the statement of the victim herself on three different occasions as also, that of the mother of the victim.

Accordingly, court modified the sentence of the appellant to that of five years rigorous imprisonment under Section 354 of the IPC and seven years under Section 10 of the POCSO Act.

Court retained the fine amount of Rs.50,000, which should be paid to the victim as compensation within two months.

Case Title: Laxman Jangde Vs State of Chhattisgarh

Judgment Date: September 10, 2025

Bench: Justices Ahsanuddin Amanullah and Joymalya Bagchi