Ipc - Outraging the Modesty of Women

INTRODUCTION

Modesty is not only an ornament, but also a guard to virtue« Crimes against women be it female infanticide, child marriage, pedophilia, sexual harassment, dowry deaths, physical abuse, etc follow them as a constant scare from cradle to grave. We might just believe that position of women in our country has improved, especially in bigger states, but that is nothing other than a myth. We might have progressed but what¶s what¶s the point in boasting boasting of our growth growth -story if it hasn¶t taught us to respect the modesty of women? Women still find it hard to gain respect and security at home, leave alone outside. Work places have issues like sexual harassment imbedded in the work culture, when it comes to female employees. Public transport still gives the entire female population using it, a time of hell.

She

is failed to be accorded with the respect she is

entitled to claim, as a human being. WHY

STRIP

WOMEN

OF MODESTY?

Women are so often, literally and metaphorically, stripped of their dignity that they most often just refuse to stand up on their own for themselves. Take the recent Mangalore pub assault episode, which took place on January 24, 2009 , when the activists of  Sri Rama Sena barged into a pub and violently beat

up the girls girls present there in the name of preserving preserving Indian culture. These self -styled activists claim they were trying to uphold the moral culture of our society. How is subjecting women to humiliation and violence moral? morals of this group?

 And

 And

just who is policing the

how can I forget to mention the shameful role played by

the media. Not one of the media persons tried to help the victims - they ran after  them with their cameras as they were being thrashed and chased and recorded everything everything faithfully faithfully . Take other incidents like that of  terror against Christian women (especially nuns) in Orissa and Karnataka; or the previous incidents of  against women in northeast

violence

(many of which were acts of rape and

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harassment committed by f alse

 Army

officers), and well why go far take the case of a

sting operation against Uma Khurana in Delhi where after the sting

was telecast on a national news channel a mob stripped the innocent school teacher. Women are being forced to run with shattered and tattered pieces of clothes on streets, and it¶s really shameful that people watch as mere spectators.

OUTRAGING THE MODESTY OF

WOMEN:

IN THE EYES OF

LAW Before proceeding further let us go through Section 354 of Indian Penal Code. It is a gender specific section protecting the modesty of a woman. It states that: "Whoever assaults or 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 may extend  to two years, or with fine, or with both".

ESSENTIAL INGREDIENTS  An

offence under this section has following essentials ingredients: i. ii. iii.

That the assault must be on a woman. That the accused must have used criminal force on her. That such an assault or insult was intended to outrage (or knowing it to be likely to outrage) the modesty of such woman.

ANYALYSIS OF THE INGREDIENTS MODESTY: In the ordinary language ´modestµ means freedom from conceit or  vanity or propriety in dress, speech and conduct. It relates to the decency of  women.1 ³Modesty" is nowhere defined in the Indian Penal Code, however it means "womanly propriety of behavior, scrupulous chastity of thought, speech and  conduct (in men or women) reserve or sense of shame proceeding from

1

B.M. Gandhi, Indian Penal Code, Eastern Book Co ., Delhi, 2006, p.517.

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instinctive aversion to impure or coarse suggestions"  (Oxford English Dictionary,1933 Edn.). The word ´outrageµ has affinity with extremely rude, violent, injurious or insulting act on one hand and it is concerned with guilt, culpability, criminality and deviation from decency on the part of person committing assault or using criminal force on a woman.2

IS AGE OF GIRL A RELEVANT FACTOR? NO, says the Supreme Court. The scope of this section is wide enough to include a female of any age, young or old as defined by section 10 of IPC. Thus, an assault can be committed on any woman irrespective of her age. 3 STATE OF PUNJAB V.

1967 SC

MAJOR SING H4

In this case, the accused (Major  Singh) has caused injuries to the vagina of a 7½ months old child by fingering. He walks into the room where the baby is sleeping at 9-30 p.m.and switches off the light. He strips himself naked below the waist and kneels over her. In this indecent posture he gives vent to his unnatural lust, and in the process ruptures the hymen and causes a tear 3/4" long inside her vagina. He flees when the mother enters the room and puts on the light´. Now the question before Hon¶ble Justices of  Supreme Court was whether a person who caused injury to private parts of female child of seven and half months is guilty under Section 354 of offence of outraging modesty of women? HELD:

The majority view was in the affirmative. Justice Bachawat with a

serious concern and conviction added that: 

The essence of a woman's modesty is her  sex. The modesty of a n adult f e male is wr it large on her  body.

2

Gandhi, p.517. K.D.Gaur, The Indian Penal Code, Universal law Publishing Co. Delhi 2008. 4 AIR 1967 SC 63. 3

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

 Young

or  old, inte lligent or  imbec ile, awake or  sleeping, the woman

possesses modesty capable of being ou tr aged. Whoever  uses cr iminal force to her  with intent to outr age her  modesty commits an off ence

punishable under  Section 354 . 

The culpable intention of the accused is the cr ux of the matter.



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

may be an idiot, she may be

under the spell of anesthesia, she may be sleeping, she may be unable t o appreciate the significance of the act; nevertheless, the offender is punishable under the section. 

A

f e male of  tender  age stands on a some wha t diff erent footing. 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, f r om her  very birth she possesses the modesty which is the attr ibute of her  sex . 

Section

10 of IPC explains that ³woman´ denotes a female human being of 

any age. The expression ³woman´ is used in

Section

354 in conformity with

this explanation. In view of the judgment of the majority the accused was held guilty u/s 354 IPC and he is awarded rigorous imprisonment for a term of two years and a fine of Rs. 1,000/and in default, rigorous imprisonment for a period of six months.

ASSAULT OR CRIMINAL FORCE:

To establish an offence u/s 354

I.P.C. the prosecution must also prove that the accused subjected the victim to assault as defined in section 351 or to criminal force as defined in

Section

350,

I.P.C5

CRIMINAL FORCE [S.350]: Whoever intentionally uses force to any person, without that persons 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

5

Rattanlal & Dhirajlal, The Indain Penal Code, Wadhwa and Co., Nagpur, 2006, p.1827

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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.

FORCE [S.349] :

 A

person is said to use force to another:

(1). If he causes motion, change of motion or cessation of motion to that other, or  (2). If he causes to any substance such motion, or change of motion or cessation

of motion as brings that substance into contact, (a). With any part of that other¶s body, or  (b). With anything that other is wearing or carrying, or  (c). With anything so situated that such contact affects that other¶s

sense

of feelings. (3). The causing, changing or cessation of motion may be: (a). By his own bodily power. (b). By disposing any substance in such a manner, that the motion or 

change or cessation of motion takes place without any further act on his part, or on the part of any other person. (c). By inducing any animal to move or to change its motion or to cease to

move.

ASSAULT [S.351]:

Whoever makes any gestures, or any preparation

intending or knowing it to be likely that such gestures or preparation will cause any person present to apprehend that he who makes that gestures or preparation is about to use criminal force to that person, is said to commit an assault. Explanation ± mere words do not amount to an assault. But the words which a

person uses may give to his gestures or preparation such a meaning as may make those gestures or preparation amount to assault. Thus, the use of assault or criminal force is an essential ingredient to attract this section.

Section

354 I.P.C. is an aggravated form of assault.

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RAJU PANDURANG MA HALE V.

2004 SC

6

STATE OF MA HARASTRA

In this case, the

Supreme

Court held the accused, who brought the victim to the

house of co-accused on false pretext, conf ined he r in the house, brought liquor  which she was forced to drink and was disrobed and took her nude photographs, guilty u/s 354 of IPC as there acts were affront on the normal sense of feminine decency and capable of shocking the sense of decency of a woman.

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INTENTION IS THE GIST OF THE OFFENCE: So

far as the offence u/s 354, IPC is concerned, intention to outrage the modesty of 

the women or knowledge that the act of the accused would result in outraging her  modesty is the gravamen of the offence. 8

RUPAN DEOL BAJAJ

1996

V.

SC 9

KAN WAR PAL SINGH GILL  At

a dinner party on July 18, 1988 Mr. K.P.S. Gill, the then DGP of the state of 

Punjab came and stood in front of Mrs. Bajaj, a senior I AS officer so close that her  legs were about four inches from her knees. He then asked her µto get up immediately¶ and come along with him and on her objection slapped her on the posterior in the full presence of all the guests. The FIR filed by the victim was however quashed by the high court on the ground that matter allegations made in FIR did not disclose the cognizab le offence as these were unnatural and improbable and harm caused to complainant was trifling and

6

AIR 2004 SC 1677. PSA Pillai, Criminal Law, Lexis Nexis Butterworth s Wadhwa, Nagpur, 2008, p.920. 8 Rattanlal & Dhirajlal, p.1820 9 AIR 1996 SC 309 7

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attracted the provisions of  decision filed

SLP

S.95

IPC. The complainant being aggrieved by this

in Supreme Court.

Now the moot question before the Court was whether the accused liable u/s 354 IPC.? HELD:

The court on the basis of the dictionary meaning of 'modesty' and the

interpretation given to that word by this Court in Major  Singh's case held that: 

The ultimate test for  ascertaining whether  modesty has be en outr aged is the action of  the off ender  such as could be perceived as one which is capable of shocking the sense of decency of a woma n.



Slapping

a woman on the posterior in full public glare "would amount to

outraging her modesty for  it was not only an aff r ont to the nor mal sense of  f e minine decency but al so an aff ro   nt to the dignity of the lady." 

It

is undoubtedly correct tha t if intention or  knowledge is one of  the

ingre dients of any off ence , it has got to be proved like other ingre dients for 

convicting a person. But, it is al so equally tr ue that those ingredients being states of mind may not be pr oved by direct evidence and may

have to be inf erred f r om the attending c ircumstances of a given case. 

The sequence of events which have been detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr. Gill, which considered together, persuaded the Court to hold that he had the requisite culpable intention. Even if it was presumed that he had no such intention he was attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society.

Thus, the court allowing the appeal of the petitioner held the accused liable u/s 354 .

OUTRAGING MODESTY BY

WOMAN

ON

WOMAN:

The offence u/s 354 IPC can be committed by any man or a woman with necessary intent or knowledge. The pronoun µhe¶ used in the expression ³that he will thereby

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outrage her modesty´ must therefore be taken under section 8, IPC as importing a male or female. 10

OUTRAGING MODESTY ON CONSENT OF

WOMAN:

It is however important to note that the accused can not be convicted to outrage the modesty of a woman if assault to her emanates from or with her consent.

INTER-REALTION:

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Attempt to Rape [376/511] & Outraging the Modesty [354]

In between a complete rape and attempt to commit rape there is a grey area covered by section 354 IPC, assault or criminal force to outrage the modesty or indecent assault. The dividing line between attempt to rape and indecent assault is not only thin but also practically invisible. 12 In order to amount to an attempt to commit an offence, the act of the accused must have proceeded beyond the stage of  preparation. If the act of the accused does not constitute anything beyond preparation and falls short of attempt, ha may escape the liability under section 376/511, IPC and may be liable to be convicted only for an offence amounting to outraging the modesty. 13

TAKESHWAR SA HU V.

2006 SC

STATE OF BI HAR14

In the instant case Takeshwar  Sahu forcibly took a 12 year old girl with intent to have sexual intercourse.

She

was rescued before he could do anything to outrage her 

modesty. Held:

The Trial Court and the High Court convicted the accused under section

376/511 IPC. But the

Supreme

Court setting aside the judgment of Trial court and

10

Girdhar Gopal v. State [AIR 1953 M.B. 147] Sate of M.P. v. Sheo Dayal 12 Rattanlal & Dhirajlal, p.2634 13 Ibid, 1822. 14 AIR 2006 SC 598. 11

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High Court held that the conviction of the appellant u/s 376/511 IPC is wholly unsustainable. The important ingredient of the offence u/s 375 punishable u/s 376 is penetration which is altogether missing in the instant case. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. in the absence of any attempt to penetrate, the conviction under 

Section

376/511 IPC is wholly illegal and

unsustainable. However, the

Supreme

Court held that the appellant is clearly guilty u/s 354 IPC. In

this significant ruling, the 

Supreme

Court has observed that :

The modesty of a gir l is outr aged the moment a man touches her  body with cr iminal intention. "The ultimate test for ascertaining whether the

modesty of a woman has been outraged, assaulted or insulted is when the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman." 

The wor d µmodesty¶ is to be interprete d as an attr ibute associated with f e male human be ing a s a class . It is a virtue which attaches to a female

human being on account of her sex. Hence, he committed the offence of kidnap under  Section 366 of the IPC and by touching her, outraged her modesty as contemplated under 

Section

354. "It is a

different matter that the accused failed at the stage of preparation of committing the offence itself," the Bench held and modified the sentence to five-year imprisonment.

PUNISHMENT: If the offence under section 354 IPC is established, the accused is punishable with imprisonment of either description up to 2 years, or fine or both.

15

PROCEDURE: The offence under 

Section

354 IPC is cognizable, bailable, not compoundable,

triable by any Judicial Magistrate as summons case. 15

16

K.D.Gaur, p.551.

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CONCLUSION: Women have been conferred with special grace by nature which she is required to protect. Outraging the modesty of women apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity. The physical scars may heal over the time, but the scars on the psyche and the trauma caused by the assault may well alter the personality of the woman. It puts a question mark on what has long been established: that the right to life under   Article 21 is not a right to mere vegetative existence, but to a life with dignity and a decent standard of  living. Therefore, the courts are expected to try and decide cases of sexual crime against women with utmost sensitivity, sternly and severely. Thus, the demand for  more stringent laws, better policing, more ef fective courts, and greater vigilance becomes most essential in the circumstances.

16

Ratanlal & Dhirajlal, p.1827

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