The article is authored by Anshika Agarwal, from Vivekananda Institute of Professional Studies, GGSIPU. The article analyses Section 354 of the Penal Code and the components forming its essence. The author explains the trends observed in the evolution of the Section by the reasoning provided by the Supreme Courts in some of its landmark judgements.
Crime as defined in the Black’s Law Dictionary refers to such commission or omission which defies a public law that commands or forbids such an act. The intention, also called mens rea or the guilty mind, forms an important component in the commission of such an act. It is the conscious or a deliberate decision, on the part of the offender, to get engaged in such an act. Criminal intent, as per the Black’s Law Dictionary can hence, be defined as the “state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime.” The law demands the prosecution to prove beyond a reasonable doubt that there existed a guilty mind that coincided with the actus reus or the wrongful act of the accused.
The offence of assault and criminal force against a woman, created by Section 354 of the Indian Penal Code, 1860, makes “intention” its crux. The intention to outrage the modesty of a woman is the driving force behind the commission of the offence. The word “modesty”, as perceived under the section, refers to the universally accepted womanly behaviour or the standard womanly notions and behaviour.
Section 354 of the Indian Penal Code
The section says, “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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.”
The offence laid down by the section is cognizable and non-bailable in nature with the prescribed period of imprisonment and fine, triable by the Magistrate.
Analysis of the Section
The key components required to be established by the prosecution in order to attract the offence envisaged under the section includes:
The aggrieved must be a woman
The section explicitly provides that the person offended should be a woman. The word “woman” denotes a female human being of any age. The act of assault or the use of criminal force on any man with the intention or the knowledge of “outraging his modesty” is not made an offence under the Penal Code. This was challenged in the case of Girdhar Gopal v. State as a violation of Article 14 and Article 15, wherein the constitutional validity of section 354 was questioned.
The judgement referred to the case of Raning Rawat v. State of Saurashtra, which interpreted the scope of Article 14 and included permitted reasonable classification for the purposes of legislation laying down the test for permissible classification. The Supreme Court in the case of Ranning Rawat pointed out that the Legislature, by its wisdom, may make certain classifications. It may treat men differently from women in regard to modesty thereby making assault or use of criminal force with intent to outrage the modesty punishable only when it is committed to women. The provisions of the impugned section hence cannot be said to violate Article 14.
The offence under the impugned section is committed only when there is an assault or the use of criminal force against a woman with an intention to outrage her modesty. The Bench in Girdhar Gopal’s case observed that the offence under the section can be committed by a woman as equally and effectively as a man. The Bench further said that the pronoun “he” in the section has to be read in consonance with the definition provided by Section 8, wherein “he” denotes any person whether male or female. Thus, the section operates equally upon all persons and does not exempt women from punishment.
There was an assault or use of criminal force against the aggrieved
The burden of proof lies on prosecution to prove that the act of the accused constituted an assault or criminal force as defined in the sections 351 and 350 of the Penal Code respectively.
Section 350 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 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.”
Thus, a close perusal of the section implies that an intentional use of force or any gesture apprehending the person concerned forms the gist in the commission of these offences.
The accused did so with an intention or the knowledge that he is likely to outrage the modesty of the aggrieved
The two chief aspects of the section are:
Intention and knowledge as the crux
The words used in the section clearly denote that the intention or knowledge forms the chief ingredient of the offence. It, therefore, becomes pertinent to prove that such intention or knowledge existed on the part of the accused. Mere proof of the fact that the woman felt that her modesty had been outraged would not satisfy the necessary ingredient of the offence. The word “modesty” is subjective in nature and the sense of modesty varies from woman to woman. Thus, the reaction of the woman to the act of the accused becomes irrelevant and is not regarded as the test of the offence.
The intention and knowledge of the accused forms his course states of mind. They cannot be determined by direct evidence. They have to be ascertained looking at the circumstances of each case. It should be kept in mind that whether a reasonable man looking at the circumstances of the case will think that the act of the offender was intended to or was known to be likely to outrage the modesty of a woman.
In the landmark case of State of Punjab v. Major Singh, the question was raised whether the act of the accused causing injury to the private parts of a minor female constituted the offence of outraging her modesty. The Supreme Court laid the test of determining the outrage in respect of the prudence of a reasonable man. If such a man thinks that the act committed is sufficient enough to tarnish the modesty of a woman then such an act would attract the provisions of the impugned Section.
The words “outrage her modesty” when read in concurrence with “intending to or knowing it to be likely that he will” indicates that the modesty of the woman concerned should be based on the intention or the knowledge of the accused and not on the reaction of the woman.
The interpretation of the word “modesty”
The objective of the section is to protect the interests of women and to conform to public morality and decent behaviour. The word “modesty” has to be viewed as an attribute of a human female irrespective of the fact whether the female has developed sufficient understanding to realise the detrimental nature of the act concerned.
In the case of Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh, a question was raised whether Mr. Gill by slapping Mrs. Bajaj on her posterior in the presence of a crowd constituted the offence of outraging her modesty. The Supreme Court, herein defined modesty in relation to woman according to Oxford English Dictionary (1993 Edition) as “womanly propriety of behaviour; scrupulous chastity of thought, speech and “conduct”; reserve or sense of shame proceeding from indistinctive a version to impure or coarse suggestions”.
The majority opinion of Justice Mudholkar and Justice Bachawat stated that the acts in question of blemishing a woman’s modesty would be judged in accordance with the common notions of mankind. These “common notions’ ‘ are in accordance with societal standards. The term “modesty” was interpreted in the light of Major Singh’s judgement. It was hence concluded that in order to constitute the offence of outraging modesty, the act of the offender should be capable of shocking the sense of decency of woman.
The Court, on applying the test laid to the facts of the case, held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to “outraging of her modesty” for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady.
Case laws scrutinizing culpable intention as the crux of outraging the modesty of a woman
In the case of Raju Pandurang Mahale v. State of Maharashtra, the Supreme Court inferred the essence of the woman’s modesty as her sex. The judgement defined “modesty” as “an attribute associated with female human beings as a class and a virtue which attaches to a female owing to her sex”. Since the word “modesty” has not been defined in the Indian Penal Code, the judgement quoted the definition as in Shorter Oxford Dictionary ) in relation to a woman.
Herein, the Court in answering the question as to whether the offender’s act of pulling a woman, removing her saree, coupled with a request for sexual intercourse constituted the offence under section 354, opined that the culpable intention forming the crux of the matter, it can be concluded that the act of the offender reflected his guilty intention. The Court applied the test laid in Major Singh’s judgement and held that the act of the accused was sufficient to violate the normal sense of female decency and thus amounted to “outrage at her modesty”.
In another case of Ankariya v. State of Madhya Pradesh, the question was raised that whether the act of the offender of loosening the cords of the petticoat of the prosecution and making further sexual advancements towards her constituted the offence of outraging her modesty under Section 354 or the offence to commit rape as under Section 375.
The Court herein made a point of distinction between the two sections saying that there should be an act on the part of the offender reflecting his intentions of having sexual connection with the victim in order to constitute the offence under Section 375. It was therefore held that the act of the accused was punishable under section 354. The intentions were sufficient enough to violate the feminine decency and outrage “her” modesty.
The culpable intention and knowledge, being state of minds have been proved as an essential ingredient in the impugned section. The several judgements have analysed the circumstances of the case instead of relying on the direct evidence to ascertain the course of mind of the offender. The intention to be ascertained should be in relation to outraging the modesty of women. Since, the Penal Code provides with no specific definition of the phrase “outrage her modesty” the Courts interpreted the definitions given by Merriam Webster, Oxford English Dictionary, and others to bring clarity in order to administer justice.
The modesty being a subjective term may differ from woman to woman. What may be modest for one may not be modest for another. Hence, in order to avoid discrepancies, the Courts laid certain tests and principles for determining such an outrage. The definitions and the test have to be applied in concurrence in order to determine the act of the accused.
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