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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. In State v. Major Singh the accused walked into a room where a female child of seven and a half months was sleeping.

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He stripped himself naked below his waist and kneeled over the child and fingured 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 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 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, or under the spell of anaesthesia, or sleeping, or unable to appreciate the significance of the act; nevertheless, the offender is punishable under this section. Where the accused dragged a woman in, made her naked forcibly and committed some acts, but there was no proof of rape, he was held guilty under section 354.Where a school teacher took a school girl inside a classroom and lay on top of her and there was no resistance whatsover by her nor did she make any hue and cry of the matter, his conviction under this section was set aside as she was held to be a consenting party, and there being no evidence of rape he could not be held guilty of the same either. Where a married woman accused two men of having raped her in her own room after she was dragged by them in the room, but there were no traces of semen in their clothes even though traces of semen were found in her clothes, it was held that the men were guilty under section 354 but not of rape because of the absence of traces of semen in their clothes while it was not unusual for a married woman to have traces of semen in her clothes.

Where some labourers, including a woman, who were taken to a police station to do certain work which they did, asked for their wages, they were beaten and the woman was also stripped bare and thrashed, it was held, inter alia, that an offence under this section was committed. Pulling a woman by the arm along with a request for sexual intercourse is an offence under section 354. Where the accused took a six year old female child into a room, made her to lie down and himself lay over her and the girl screamed and ran away, this section was held to be attracted. Where the accused touched the belly of a woman in a bus, in the absence of the proof of the requisite intention or knowledge this was held to be a mere accident where this section did not apply. Where the accused caught hold of a woman with a view to rape her but she picked up an axe and inflicted a blow on him after which he escaped, it was held that he was guilty under this section for the indecent assault. The accused after taking off a girl’s clothes threw her on the ground. He then sat beside her, did not do anything further and also said nothing to her. It was held that he had committed the offence under this section.

The Madhya Pradesh High Court is of the opinion that the word ‘he’ used in section 354 includes ‘she’ also vide section 8 of the Indian Penal Code, 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 intention or knowledge as referred to in the section. Where the accused stripped a girl of eighteen to twenty years of age nearly naked and lay over her and her cries attracted the people to come to her rescue, it was held that the accused was not liable under this section but was guilty of an attempted rape under section 376 read with section 511 of the Code. But where the accused loosened the strings of the petticoat of a woman and was about to sit on her when she cried for help and was rescued, it was held that the accused had not attempted to commit rape but was guilty under section 354 of the Code. Where the deceased in her dying declaration stated that the accused persons had entered her room, caught hold of her and asked her to allow them to have sex with her, and when she refused they threatened to defame and rape her, but they did not commit sexual intercourse, and one hour after this incident the deceased committed suicide by burning, it was held that the accused were guilty under section 354 and not under section 306 of the Code.

In Damodar Beliera v. State of Orissa where the accused persons were alleged to have removed the ‘Saree’ 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 sections 354/34 and not under sections 376, 511 read with section 34 of the Code. In Mrs.

Rupan Deol Bajaj v. K. P. S. Gill 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), 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. The Supreme Court observed that knowledge can be attributed that he was fully aware that touching the body of the prosecutrix at that place and time would amount to outraging her modesty. The incident happened in 1988 and the accused had completed the period of probation. There was no occasion for any complaint or violation of any of the terms of the bond. At this juncture any other punishment is not proper.

The complainant has informed that she has no intention of withdrawing rupees two lacs ordered to be paid to her by way of compensation and that this amount may be given to any woman’s organisation engaged in doing service for the cause of women. The amount is lying with the Punjab and Haryana High Court and its chief justice will use that amount as deemed fit. In Prenianidhi Singh v. State of Orissa, there was an allegation that the accused had forceful sexual intercourse with the prosecutrix and further that he tried to commit the same act from her backside. Her evidence, however said that her clothes were not removed or opened. Moreover, the accused was said to have spent himself and left the prosecutrix before doing anything more to her. The Orissa High Court held that the said acts do not amount to either rape or unnatural offence but instead amount to indecent assault under section 354 of the Code. In Ram Pratap v.

State of Rajasthan 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.

The Court also held that since the trespass was for an offence under section 354, he was also guilty under section 451 and not under section 452 of the Code. In Shiv Shanker v. State of Uttar Pradesh, the Supreme Court ruled that the act of the accused catching hold of the victim and making her fall down not amount to attempt to commit rape but amounts to assault or criminal force used to outrage modesty of the victim. Being unsuccessful in his efforts, he gave knife blows causing death of the victim. He was held guilty of murder but not awarded death sentence but imprisonment for life.

In Narayan v. State of Madhya Pradesh, the prosecutrix in a rape case against the accused nowhere stated about removal of her clothes. The Madhya Pradesh High Court held that the words ‘ulta kam kiya’ as stated by her without any evidence by the prosecution cannot in local parlance mean commission of sexual intercourse. The prosecutrix nowhere was stated to have disclosed the incident before the prosecution witnesses. The statements of both those prosecution witnesses were discarded as hearsay. The medical report did not support the prosecutions case. No marks of external injury or hurt were found to corroborate the story of her having been dragged for 100-200 paces. The charge was thus altered from one under section 376 to that under section 354 of the Code.

In State of Karnataka v. Rangaswamy, the accused allegedly raped a poor villager on her refusal to withdraw complaint lodged by her husband with the police against them. The evidence of the prosecution was not supported by the prosecution witness nor by the medical evidence. The crucial evidence in the form of the victim’s clothes was also missing.

The Karnataka High Court refused to interfere with the accused’s acquittal. However, considering the victim’s statement that her clothes were pulled off and she was sexually assaulted and was also bitten, the accused was convicted under sections 354 and 323/34 of the Code. The Court went on to make a very important observation which needs to be looked into and acted upon urgently.

The Court said that the non-professional attitude and malpractices by doctors, particularly in the public hospitals, result in acquittals in 94% of such cases in the State of Karnataka. Therefore, while appealing conscience of the members of the medical profession, the High Court directed the State Government to immediately formulate adequate safeguards to ensure full stop to these illegalities. In Aman Kumar v. State of Haryana the Supreme Court has held that pulling a woman and removing her dress with the request for sexual intercourse constitutes outraging modesty of the woman and not attempt to commit rape since the knowledge that modesty of the woman would be outraged is sufficient for the guilt of the accused. In Vidyadharan v. Stale of Kerala the Supreme Court observed that section 3(l)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which deals assaults or use of force on any woman belonging to Scheduled Caste or Scheduled Tribe with intent to dishonour or outrage her modesty is an aggravated form of the offence in section 354 of the Indian Penal Code. The only difference between the two is the caste or tribe of the victim. The other difference is that in section 3(l)(xi) of the Act ‘dishonour’ of such victim is also made an offence.

In Pandurang Sitaram Bliagwat v. State of Maharashtra the Supreme Court observed that the approach that ordinarily a lady would not ‘put her character at stake’ may not be wrong but this cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete with decisions where charges under sections 376 and 354, Indian Penal Code have been found to have been falsely advanced. In Ram Kripal v. State of Madhya Pradesh 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. 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. The test to determine modesty has been outraged or not is whether action of the offender is such as could be perceived as one which is capable of shocking sense of decency of a woman. In State of Himachal Pradesh v.

Prein Singh, the accused teacher was alleged to have sexually ravished the prosecutrix and had outraged modesty of not only the prosecutrix but several other girl students of the school. However, on reading of evidence of the prosecutrix a case of rape was found to be not established. The Supreme Court convicted the accused under sections 354 and 506 of the Act of the Code.

The offence under section 354 is cognizable, bailable and non-compoundable, and is triable by any magistrate.


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