GREY AREAS UNDER SECTION 354 INDIAN PENAL

CODE

Law of Crimes I – CAT II

SYNOPSIS

SUMBITTED TO-

JULIAN SEAL PASARI SUMBITTED BY-

SHRUTI GUPTA

SEMESTER III-B

719

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

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 “Modesty is not only an ornament, but also a guard to virtue”

INTRODUCTION TO SECTION 354 IPC

Section 354, IPC, has been enacted with a view to protect a woman against indecent assault. The
object of the provisions as contained in Section 354 IPC is to protect a woman against indecent
behavior of others which is offensive to morality. In fact, these offences are as much in the
interest of the woman as in the interest of public morality and decent behavior. These offences
are not only offences against individual but against public morals and society as well. This
section punishes an assault on, or use of criminal force to, a woman with the intention of
outraging her modesty or with the knowledge that it is likely that he will thereby outrage her
modesty. ‘Outraging the Modesty of a Woman’ is a phrase which is open ended and could be
interpreted depending upon different facts & circumstances and the understanding of the
interpreter, because what can be termed as modesty for one woman, need not necessarily be the
same for the some other woman. In the absence of an extensive definition of ‘modesty’ and
‘intension of outraging’, courts have displayed a patriarchal mindset in dealing with the victim,
Although, there are instances where this section provides an edge to a woman who wants to
settle her personal score or is ambitious. The alleged was arrested for a offence under section 354
on a false complaint, that the accused caught hold of her hand and threatened to pull her sari, the
accused underwent torture and termed as mentally ill whereas later was proved innocent and set
free1. Therefore, there is a need to understand the intricacies of the section and its ambit. The
offence under this section is cognizable, bailable, compoundable with permission of the Court,
pending and triable by any Magistrate.

UNDERSTANDING – ‘INTENDING TO OUTRAGE’

There must be either an assault or use of criminal force against a woman who according to
section 10 of the Indian Penal Code is a female human being of any age. The offender must
either intend to outrage the modesty of the woman, or must know that he is thereby likely to
outrage her modesty. Aman Kumar v. State of Haryana2, the court tried to define the term

1
M.A. Nayyem Farooqui v. State of Andhra Pradesh, 1998(1) ALD 103
2
AIR 2004 SC 1497

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‘outraging the modesty of woman’, saying that 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 as
woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the
offence. Where the accused persons were alleged to have removed the ‘Sari’ of the victim but
had run away on seeing some persons and there was no material showing that the accused were
determined to have sexual intercourse in all events, it was held that they were guilty under
Section 3543.

In Mrs. Rupan Deol Bajaj v. K. P. S. Gill4 there was an alleged act of top most official of the
State Police in slapping a senior lady officer on her posterior in presence of a gathering of elite of
the society. In fact the situation amounted to outraging the modesty of the lady officer. There
was nothing in the FIR that the alleged act was committed accidentally or by mistake or it was a
slip. The allegations in the FIR made out offences under sections 354 and 509 of the Code. It was
held by the Supreme Court that the offence relating to modesty of a woman not being trivial
section 95 of the Code was not attracted, and that quashing of the FIR and the complaint by the
High Court was illegal especially in absence of the finding that allegations made in the FIR were
absurd and inherently impossible. In Kanwar Pal S. Gill v. Stale (Admn. U.T. Chandigarh)5, the
accused gently slapped on the posterior of the prosecutrix in presence of some guests. It is
proved that he used criminal force with intent to outrage the modesty of the complainant and that
he knew fully well that the slapping would embarrass her.

In Ram Pratap v. State of Rajasthan6 the accused was alleged to have entered the victim’s house
when she was alone and misbehaved with her by making her lie down on a cot. There was no
preparation to commit rape or undressing by him. The Rajasthan High Court held him guilty
under section 354.

Therefore, any act with the slightest of intension to insult or impart the feeling of uncomfortable
surrounding on the part of the accused could result in the conviction under Section 354.

3
Damodar Beliera v. State of Orissa. AIR 1957 SC 233
4
1995 SCC (6) 194
5
1995 SCC (Cri) 1059
6
1997 (2) WLC 760

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EXTENSIVE DEFINITION OF MODESTY

It would seem to follow that modesty is considered to be an attribute of every female since her
birth and an outrage against a wife will be punishable irrespective of the fact that she is of a
tender age or developed enough understanding so as to appreciate the nature of the act, or to
realize that it is offensive to her senses. Modesty is an inherent characteristic of womanhood
independent of any individual’s personality. Outraging a woman's modesty as mentioned in
Section 354 will apply to crimes against women that stop short of penetration and the accused is
not convicted for rape.

The term ‘modesty’ in the dictionary has been defined as the quality of being modest, decency,
etc. the word decent means that which is not obscene , reasonably good, fair confirming to
approved social standards, kind, respectable.7 Catching hold of a woman by her arm and
dragging her may also amount to an outrage irrespective of the fact that the act is done in the
presence of others or not.8 Throwing her on the ground is outrageous9 as the act as unkind and
indecent. The Madhya Pradesh High Court10 if of the opinion that the word ‘he’ used in section
354 includes ‘she also vide section 8 of the IPC and therefore, under this section a man as well as
a woman can be convicted of assaulting or using criminal force to a woman with the intension or
knowledge as referred to in the section. The offence under Sec. 354 of IPC can be considered to
be committed by the woman accused then only intention to commit the crime is not sole
criterion. The offence under this Section can also be committed by any woman assaulting or
using criminal force on any woman if HE knows that the act is likely to affect the modesty of a
woman11.

In State v. Major Singh12 the accused walked into a room where a female child of seven and a
half months was sleeping. He stripped himself naked below his waist and kneeled over the child
and fingered her vagina, ruptured her hymen and caused a tear in her vagina. The Supreme Court
while holding him guilty under section 354 observed that when any act done to or in the presence

7
Webster’s New World Dictionary
8
Fakir v. Emperor, (1928) Cri. L.J. 749 (Lahore)
9
Nuna V. Emperor, (1912) Cri L.J. 469 (Punjab)
10
Ramkripal S/O Shyamlal Chamakar v. State of Madhya Pradesh, AIR 2004 SC 1677
11
Sailendra Nath Hati Vs Aswini Mukherjee, 1988, CrLJ 343 Cal
12
1966 SCR (2) 286

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of a woman is clearly suggestive of sex according to the common notions of mankind that act
will fall within this section. The essence of a woman’s modesty is her sex. The culpable intention
or knowledge of the accused is the crux of the matter.

THE CONTROVERSIES AND NEBULOUSNESS AROUND THE WORD – WOMEN

The earlier interpretation in Soka v. emperor13 that protection of the provision is available to
women who are old enough to feel the sense of modesty and whose sense of modesty is
sufficiently developed is no longer acceptable.

In landmark case State of Punjab v. Major Singh14, with majority 2:1, the accused was held
guilty under S. 354 IPC, and there was an attempt to define at what age woman could constitute
modesty. The Judge Sarkar, CJ, interpreted that an act done with the intension or knowledge that
it was likely to outrage the woman’s modesty be considered along with female’s reaction.
Females of all age do not possess modesty which can be outraged and dismissed the appeal. The
second judge Mudholkar, quotes ‘modesty as not referring to a particular woman but to the
accepted notions of womanly behavior and society. Whether female has capacity to understand
or not is immaterial, allowed the appeal and held conviction under section 354. As per the third
judge Bacbawat, J. the expression “woman denotes a female human being of any age.

In Girdhar Gopal v. State15, the applicant who is Pujari took a nine year old girl to his home
under the pretext of giving “Prasad”, made her lie on the bed, put a covering on her and then sat
upon her. He then became naked and asked the girl to remove her clothes. Later the girl’s brother
and neighbor rescued her. The accused was found guilty under section 354 of IPC and was
sentenced to one year imprisonment. In Ram Kripal v. State of Madhya Pradesh16 the Supreme
Court observed that modesty in section 354 of the Code is an attribute associated with female
human being as a class. It is a virtue which attaches to a female owing to her sex. Therefore
woman of any age, an infant, a child or an adult is protected under the provision of this section.

13
AIR 1933 Cal 142
14
1966 SCR (2) 286
15
1953 CriLJ 964
16
AIR 2004 SC 1677

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REFINING THE LAW

The state of Andhra Pradesh however took an initiative in 1991 by following substitution for
section 354 –‘Whoever assaults or uses criminal force to a 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 five years but which
may extend to seven years and is liable for fine: Provided that the court, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either
description for a term which may be less than five years, but which shall not be less than 2
years.17 Increasing the punishment creates the greater the effect of deterrence in the mind of the
accused and therefore a probability of non-commencement of the offence.

CONCLUSION

The judicial decision making is done in the ‘laboratories’ of the lower court, which have two
options: fall back on traditional rules of practice, or make a rather uneducated guess as to how to
proceed in a new direction. The first course halts the evolution of practice and legal doctrine, the
second leads to inevitably to inconsistency in decisions. The dilemma in both the situations
becomes more awkward in the absence of a liberal and expansive definition of ‘modesty’ and
‘intension of outraging’, under section 354. The law needs to be precise and crystal clear in its
definition, as the modern society heavily relies on law. The law should not fail to achieve the
goals enshrined in the constitution for the emancipation of woman in India and should fully
protect her from sexual predators or else woman justice will be fragile myth.

17
Andhra Pradesh Act of 1991, Section 2