Assault or criminal force to woman with intent to outrage her modesty (Section 354 of IPC)
The points requiring proof under Section 354 are:
1. That the person aggrieved was a woman.
2. That the accused assaulted or used criminal force to her.
3. That he did so intending to outrage her modesty or knowing that he was likely to do so.
The word ‘woman’ means the female human being of any age. It will be thus obvious that if assault is committed or criminal force used with the intention or knowledge specified in Section 354, the offender would be guilty, irrespective of the age of the female victim.
The IPC does not define ‘modesty’. According to Shorter Oxford English Dictionary, ‘modesty’ means “decorous in manner and conduct; not forward or lewd; shamefaced”. Modesty is defined as the quality of being modest, and in relation to woman “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”.
As per Webster’s New International Dictionary, ‘modest’ means ‘observing the proprieties free from familiarity, indecency, or lewdness’.
The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354.
As mere words do not amount to an assault, it would seem to follow that a mere making of an indecent proposal, unaccompanied by any gesture or preparation is not sufficient to constitute the offence of indecent assault, though the case would be very difficult if, while making the proposal, the accused pulled the woman by the arm.
Acts which are outrageous to morality would be naturally deemed outrageous to the modesty of woman, such as taking indecent liberties with a female (such as touching her breasts, stripping her naked, or the like, and attempts at sexual intercourse), when they do not amount to something more.
‘Modesty’ has some relation to the sense of propriety of behaviour in relation to the woman against whom the offence is said to have been committed. In addition, therefore, to the intention or the knowledge of the accused person of which the section speaks, there must be not merely the physical act of the accused, that is, assault or the use of the criminal force, but a subjective element so far as the woman against whom the assault is committed or criminal force used. This result appears to follow in consequence of the use of the words ‘outrage her modesty’ in Section 354 of the Code and the concept of modesty as given above.
In Raju Paudurang Mahale V, State of Maharashtra [2004 Cr.LJ 1441 (SC)], it has been observed that ‘modesty’ in Section 354 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge that modesty is likely to be outraged is sufficient to constitute the offence without a deliberate intention of having such outrage alone for its object.
The ultimate test for ascertaining whether modesty has been outraged or whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman.
When any act done to or in presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of Section 354. Modesty is the attribute of female sex and she possesses it from her very birth.
The act of indecent assault depends upon the customs and habits of the people no less than upon the age of the woman. So an act which would be an outrage on the modesty of one woman would be thought nothing of by another. A kiss that would be highly resented by a lady might be no affront to the mind of another.
For instance uplifting the veil of a pardah woman would be justly regarded as a highly indecent act grossly outrageous to her modesty, but it will pass unnoticed in the case of a European. Then there are occasions when an act could be considered as comparatively less outrageous than on other occasions.
For instance, the licences tolerated by some people at the festival of Holi, and on the occasion of marriage, are not to be taken as examples of the acts tolerated on ordinary occasions. The acts here punished may consist of what is technically an ‘assault’ or they may even amount to the use of criminal force.
In Aman Kumar ê State of Haryana [2004 Cr.LJ 1399 (SC)], it was observed that the essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive.
The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and the knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object.
The reaction of the woman is very relevant to judging as to whether an assault to her amounts to outraging her modesty, but its absence is not always decisive. It is, therefore, not always necessary to ascertain that the woman, against whom an indecent assault or criminal force used, realized the effect of, or reacted to, such an assault or force to hold the person guilty under Section 354.
The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under Section 354.
In State of Punjab v. Major Singh [AIR 1967 SC 637], it was observed that in so far as the girl of the age of 7Óã months is concerned, she is physically incapable of having any sense of modesty or propriety of behaviour. Her body is immature, and her sexual powers are dormant. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex.
In Ankariya v. State of MP [1991 Cr.LJ 751], the accused was alleged to have loosened the cord of the petticoat of the prosecutrix and was about to sit on her waist when she cried out for her husband, the act of the accused would constitute not an attempt to commit rape but only preparation for the same.
The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her. It was held that the offence against the accused would, therefore, be one under Section 354 IPC assault or use of criminal force to woman with intent of outrage her modesty and not under Section 376, IPC.
In State of Maharashtra v. Manohar [1994 Cr.LJ 2536 (Bom.)], a woman came out early in the morning to get water from the village well. The accused caught her hand and forcefully pulled her towards him to take her to a nearby place. She resisted and raised alarm. Her bangles were broken and she was injured. The accused was found guilty of the offence under Section 354 and was convicted accordingly.
In Jai Chand v. State [1990 Cr.LJ 2039 (Del.)], the accused forcibly laid the prosecutrix on bed and broke the string of her pyjama and tore her underwear but did not undress himself, the offence fell under Section 354 and the offence of attempt to commit rape was not made out.
In Rupart DeoI Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 = AIR 1996 SC 309], the Supreme Court held that where the accused, a superior rank police officer slapped the back of the complainant, an IAS Officer, in a party in a public place, having regard to sequence of events his act prima facie amounted to outraging the modesty of the lady IAS Officer.
The Supreme Court held that, “the ultimate test for ascertaining whether the modesty has been outraged is, in the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman”, and viewed the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior, was not only an affront to the normal sense of feminine decency, but also an affront to the dignity of lady – whether there are any sexual overtones or not.
In Keshav Baliram Naik v. State of Maharashtra [1996 Cr.LJ 111 (Bom.)], the accused touched the hand of the blind prosecutrix and removed the quilt with which she was covering herself and put his hand on her ‘middi’, the conviction of the accused for attempt to commit rape was set aside but conviction under Section 354 was confirmed.
Section 354 of the Code is equally applicable to the unfortunate women, who lead immoral lives. For, they can be no more subjected to the unbridled lust of other persons than respectable women and if a person takes indecent liberties with them, he will be as much punishable as if he had outraged the modesty of virtuous woman. But, in the case of such women, the question would be whether what was done was not done by leave and licence.
This offence is cognizable, and a warrant should ordinarily issue in the first instance. It is non-bailable but non-compoundable and is triable by the Court of Session.