By Paromita Maitra
Published On: February 20, 2022 at 10:00 IST
Introduction
Violence against women is more prevalent than visible in India. We believe that marriage is not anymore, an economic trap, divorce is easier, and single parents and abortions are widely accepted and understood.
India has seen female Prime Ministers, and there are women who play an important role in the media. The woman has grown up, but has moved to the next page of the book.
But we find a specific man who hasn’t changed. This situation began to change when the nation recognized the sociological equality to women and punished the accused who done crimes against them, providing them a strong ground.
Offences against human body
Section 354 Assault or criminal force to women with intent to outrage her Modesty Under Indian Penal Code[1]:
Whoever uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term, which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
To get a conviction under Section 354, the prosecution must show not only that the accused assaulted or used illegal force against the woman, but also that he did so with the intention or knowledge that it would insult her modesty.
However, the intention to offend a woman’s modesty is not the only criteria for the crime. It can be committed by a person who assaults or uses unlawful force on a lady if he knows that his behaviour will threaten her modesty.
The presence of motive or knowledge, which are basically mental phenomena, must be gathered from the numerous circumstances in when and on whom the accused offence was allegedly committed.
However, there is no clear definition of what constitutes an insult to a woman’s modesty. It is a virtue associated to a woman due to her sex. It can be described as the quality of being modest and in relation to womanly decency of action, strict purity of thinking, language, and action; reserve or sense of humiliation resulting from filthy or vulgar suggestions.
The offence under this section is cognizable and non-bailable, with a prescribed time of imprisonment and fine to be determined by the Magistrate.
Essentials of the Section
The essential components required to be established by the prosecution in order to attract the offence envisaged under the section includes:
- The person who has been mistreated must be a woman:
The section specifies that the individual who has been aggrieved must be a woman. Under the Penal Code, assaulting or using illegal force on a male with the purpose or knowing of “Outraging his modesty” is not considered a crime.
Girdhar Gopal vs State, 18 December, 1952[2]
This was challenged as a violation of Articles 14 and 15, and the constitutional legitimacy of Section 354 was questioned.
- The aggrieved party was assaulted or subjected to criminal force:
The prosecution bears the burden of proof in proving that the accused’s actions constituted assault or criminal force, as defined in Sections 351 and 350 of the Penal Code, respectively.
Section 350 [3]defines criminal force as, “Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
Section 351[4] defines assault as, “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.”
- The accused did so with the intent or knowledge that he was likely to offend the modesty of the aggrieved:
The Section’s two main features are Intent and knowledge:
The words given in the Section make it apparent that the main factor in the crime is intent or knowledge.
As a result, it is necessary to establish that the accused had such a purpose or knowledge. The mere fact that the woman believed her modesty had been trampled would not suffice as proof of the offence’s essential feature. The meaning of the word “Modesty” is subjective, and it differs from woman to woman.
As a result, the woman’s reaction to the accused’s act is rendered irrelevant and is no longer considered a test of the crime. The accused’s intention and knowledge determine his mental states. Direct evidence cannot be used to determine them.
They must be determined based on the specific facts of each instance. It is important to remember that a reasonable man considering the circumstances of the case would believe that the offender’s act was intended to or was known to be likely to violate a woman’s modesty.
Analysis of the word “Modesty’’
The Section’s goal is to defend women’s interests while also adhering to public morals and acceptable behaviour.
Regardless of whether the female has grown sufficient understanding to recognise the harmful nature of the act in question, the word “modesty” must be understood as an attribute of a human female.
State of Punjab vs Major Singh, 1967[5]
In this case, the Supreme Court Observed:
• The Supreme Court has ruled that the reaction of the woman in question is not a criterion for establishing an offence under Section 354.
• Major Singh, the accused in this case, had fingered a seven-and-a-half-month-old infant girl’s vagina, causing injuries. At 9.30 p.m., he entered the room where the child was sleeping, undressed himself of his clothes below the waist, bent over her, and did indecent acts of unnatural lust on her private part, rupturing her hymen and causing a 3/4-inch tear within her vagina. It was argued in his favour before the lower court.
• Since Section 354 stipulates that the criminal must have been convicted of a crime, the courts have ruled that the offender must have been convicted her modesty enraged and, in this example, because the infant in question lacked sufficient sex instinct her modesty was not infringed upon in any way.
• The Supreme Court, however, rejected this argument, despite the fact that it had been accepted by lower courts.
• The accused was found guilty under Section 354, Indian Penal Code, by the court and the accused and was sentenced to two years rigorous imprisonment and a fine of Rs 500, or in default of the payment of fine an additional period of six month’s rigorous imprisonment
Assault or Criminal Force with intent to outrage women’s modesty
Ram Das Vs State of West Bengal, 1954-[6]
In this case, the Supreme Court Observed:
- The accused was charged with violating Section 354 of the Indian Penal Code. The evidence against him was that he boarded a train cabin at night in which two females and their male companions were seated.
- He removed his trousers, which he was wearing under his underwear. Following that, there was a heated exchange of words and a quarrel between him and the other group, during which he shoved one of the women. He was said to have been looking at those women “With lustful eyes” before removing his trousers. The accused was found not guilty by the Supreme Court.
- It was found that a man’s act of removing his trousers at night before lying down on his bed cannot be used to infer criminal intent to offend a female’s modesty because it is a natural preparation act towards becoming relaxed on a journey.
- In the absence of evidence, it was also denied to read the suspect’s aim to offend the modesty of the women in his “Staring with hungry eyes” at them, because such an impression is more mental than real.
- The court found that no one may be held liable in the lack of direct and unambiguous proof of his intent to offend a woman’s modesty or of his knowledge that his behaviour was likely to offend modesty.
- The Orissa high court further declared that simply placing a hand on a woman’s stomach in public does not constitute an act of outraging modesty of the woman under Section 354.
- It is necessary to convict him under Section 354 of the Indian Penal Code. To establish that his conduct of stroking the woman’s belly was purposeful and with criminal intent, an act of tugging a woman, removing her dress, and requesting sexual intercourse amounts to outraging the lady’s modesty, as the act demonstrates his resolve and desire.
- The woman’s reaction is crucial in determining whether or not an assault on her modesty has outraged her, but it is not always significant.
- To hold a person is guilty under Section 354 of the Indian Penal Code, it is not necessarily required to prove that the woman who was subjected to an aggravated sexual assault or criminal force understood or reacted to the assault or force.
Raju Pandurang Mahale vs. State of Maharashtra,2004-[7]
In this case, the Supreme Court Observed:
- The accused, who brought the victim to the co-accused’s house on a false excuse, confined her there, brought alcohol which she was forced to consume, stripped naked her, and took naked photos of her, was found guilty under Section 354 of the Indian Penal Code because his actions were “An affront to the normal sense of feminine decency” and “capable of shocking decency of a woman.”
- However, the use of criminal force that results in a woman’s outraging modesty might range from simply holding her hand to any terrible form of sexual assault that isn’t penile penetration or an attempt to do so, or an unnatural offence.
- The differentiating line between the two is very small. Nonetheless, outraging a woman’s modesty is not the same as attempting to commit rape. In the latter, the accused must take some action to demonstrate that he was about to penetrate her.
Conclusion
In the disputed Section, the guilty purpose and knowledge, both of which are states of mind, have been proven to be important ingredients. Several decisions have examined the circumstances of the case rather than relying on direct evidence to determine the offender’s intent. The intent to be determined should be in connection to offending women’s modesty.
Because there is no clear definition of the word “outrage her modesty” in the Penal Code, the Courts interpreted Merriam Webster’s, Oxford English Dictionary’s, and other definitions to offer clarity in order to administer justice.
Because modesty is a subjective phrase, it can vary from one woman to the next. What one person considers modesty may not be considered modesty by another.
As a result, the Courts established certain procedures and rules for evaluating such an outrage in order to avoid disparities. In order to determine the accused’s act, the definitions and the test must be employed in combination.
Edited by: Tanvi Mahajan, Publisher, Law Insider
References
Book
Criminal Law,PSA Pillai’s,14th Edition
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