When pressing the breast of a minor girl will not amount to sexual assault as per the POCSO Act?

  Now the question for consideration of this court is,

whether the ‘pressing of breast’ and ‘attempt to remove salwar’

would fall within the definition of ‘sexual assault’ as defined

under Section 7 and punishable under Section 8 of the POCSO

Act. For better appreciation of evidence, it would be necessary to

look into the definition of ‘sexual assault’, which is reproduced

below:

7. Sexual assault – Whoever, with sexual intent

touches the vagina, penis, anus or breast of the

child or makes the child touch the vagina, penis,

anus or breast of such person or any other person,

or does any other Act with sexual intent which

involves physical contact without penetration, is

said to commit sexual assault.

As per this definition, the offence involves the following

necessary ingredients :

(i) Act must have been committed with sexual

intent.

(ii) Act must involve touching the vagina, penis,

anus, or breast of the child.

or

making the child touch the vagina, penis, anus or

breast of such person or any other person.

or

doing any other act with sexual intent which

involves physical contact without penetration.

17. The appellant/ accused is convicted for the offence of

‘sexual assault’. As per the definition of ‘sexual assault’, a ‘physical contact with sexual intent without penetration’ is an essential ingredient of the offence. 

18. Evidently, it is not the case of the prosecution that

the appellant removed her top and pressed her breast. The

punishment provided for offence of ‘sexual assault’ is imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine. Considering the stringent nature of punishment provided

for the offence, in the opinion of this Court, stricter proof and

serious allegations are required. The act of pressing of breast

of the child aged 12 years, in the absence of any specific detail

as to whether the top was removed or whether he inserted his

hand inside top and pressed her breast, would not fall in the

definition of ‘sexual assault’. It would certainly fall within the

definition of the offence under Section 354 of the Indian Penal

Code.

25. The learned APP read out Section 7 of the POCSO

Act, which defines sexual assault and submitted that the act

which has been proved by the prosecution “pressing of breast”

comes within the definition of sexual assault under Section 7 of

the POCSO Act.

26. It is not possible to accept this submission for the

aforesaid reasons. Admittedly, it is not the case of the

prosecution that the appellant removed her top and pressed

her breast. As such, there is no direct physical contact i.e. skin

to skin with sexual intent without penetration.

27. In view of the above discussion, this Court holds that

the appellant is acquitted under Section 8 of the POCSO Act

and convicted under minor offence u/s 354 of IPC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH

CRIMINAL APPEAL NO. 161 OF 2020

Satish  Bandu Ragde, Vs  The State of Maharashtra

CORAM : PUSHPA V. GANEDIWALA, J.

Dated: JANUARY 19, 2021.

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Whether husband can be prosecuted for outraging modesty of wife?

 Further, under section 354 reference is made to "any woman" suggesting that a person may be held guilty of outraging the modesty of any woman including the one who is his wife. Some specific instances are, however, to be examined before arriving at the conclusion that a husband may be held guilty of outraging the modesty of his wife. These are:

(I) If the husband expresses his affection towards his wife in public in an unkind manner such conduct will (a) amount to an indecent behaviour; (b) be against 'public morality'; and (c ) amount to an outrage under section 354.

(ii) In case the husband and wife are alone, it may be essential that some liberty be permitted to the spouses with regard to certain acts which are a necessary part of the conjugal relationship. Certain overtures or acts of affection and love in private by the husband, which may not be acceptable to the wife in public, will have to be conceded as not amounting to outrage under the provision.

(iii) Highly personal acts of love and affection by the husband which may or may not be liked by the wife, if done in public, may go against public morality and fall under section 354 as all its essential ingredients are present in such a situation.

(iv) Such personal acts done by the husband as are not acceptable to the wife even in private and also not approved by society, should also fall under the scope of section 354. Today no woman or society would approve of perverted sexual acts as being a legitimate part of the spousal relation.

63. As stated above, If between the two spouses one spouse wants healthy and normal sexual relations and the other is desirous of having perverted sexual relations such as cunnilingus and fellatio as alleged by the wife in the present case then normal sexual relations between the spouses which form basis of a happy marital life would be floundered. On the bedrocks of sexual aversion on the part of the spouse who is normal and not deviant

64. It is conceivable that in case the husband assaults or uses criminal force against her wife the act will amount to an outrage under section 354, irrespective of the fact whether it was done with or without her consent or in the absence of a third party. The question of husband's knowledge, intention or her developed sense under the modern set up would become irrelevant and a deliberate outrageous conduct of the husband is indefensible. It would thus seem to follow that a husband may be held guilty of an offence even under section 354 if the victim is a woman who is his wife.

65. In construing section 354, it is irrelevant to consider the age, physical condition or subjective attitude of the wife against whom the assault has been committed or criminal force is used. The word woman under the IPC denotes a female human being of any age (S. 10, IPC). The earlier interpretation in Soka v. Emperor (AIR 1933 Cal. 142) that the protection of the provision is available to women who are old enough to feel the sense of modesty and whose sense of modesty is suffi- ciently developed, is no longer acceptable. In earlier cases where assault was committed or criminal force used against girls of tender age, conviction of the accused rested mainly on behaviour of the victim. In Girdhar Gopal v. State (1953) 54 Cri.L.J. 1964 (M.B.) the accused confined the victim, a girl of six years in a room and asked her to remove her clothes. She refused to do so and shouted for help. The act of the applicant in confining the girl, making her lie on a bed and then sitting on her and becoming naked was held as amounting to use of criminal force with the intention or knowledge that the girl's modesty would be outraged. The court was apparently of the opinion that since the girl shouted for help, she had had her sense of modesty developed. In another case, Emperor v. Tatia Mahadev (1912) 13 Cr. L.J. 858 (Bom.) the accused took a girl, six years old, to his room and made her to lie down and he lay on her. The girl screamed and ran away. The magistrate took the view that the girl being only six years old was too young to have any sense of modesty developed. The High Court negatived the view in the following words:

"It seems to us that there are many answers to this view of the learned Magistrate's. One sufficient answer may be found in the proved facts of this particular case that the girl screamed and ran away when the accused began his assault upon her. (Ibid)"

Since the outrage was felt by the victim, and she screamed and ran away, the court had seemingly no difficulty in convicting the accused under section 354 of IPC.

66. The question whether any reaction of the victim as also her age are decisive or not for determining the guilt under section 354 were resolved by the Supreme Court in State of Punjab v. Major Singh (supra). In this case the accused caused injury to the vagina of a seven and half months old child by fingering. The court held that the provision does not require that the outrage must be felt by the victim. If such an interpretation is given to the provision as would require that to punish a person, the victim must be having a developed sense of modesty, "it would leave out of the purview of the section assaults not only on the girls of tender age but on even grown up woman when such a woman is sleeping and did not wake up or is under anaesthesia or stupor or is an idiot."1 It was held that the legislature did not intend that the outrage to be an offence must be felt by the victim. Bachawat J. observed:

"A female of tender age stands on a somewhat different footing. Her body is immature and her sexual powers are dormant. In this case the victim is a baby seven and half months old. She has not yet developed a sense of shame and has not awareness of sex. Nevertheless, from, her very birth she possesses the modesty which is the attribute of her sex. (Id. At 68)"

67. 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 realise that it is offensive to her senses. There is no reason for confining the protection afforded by section 354 only to the wives who have attained enough understanding to comprehend that the act complained of was intended to corrupt their morals or offensive to propriety of womanly behaviour. The result is that under section 354 age of the wife or her reaction is not a decisive factor in determining the question whether her modesty was outraged or not. This approach would suggest thus that women have modesty irrespective of their age and understanding of it. Modesty is an inherent characteristic of womanhood independent of any individual's personality.

Gujarat High Court

Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April, 2018

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Whether Mere knowledge that modesty of a woman is likely to be outraged is sufficient to attract S 354 IPC ?

 In order to constitute the offence under Section 354 of

the IPC, mere knowledge that the modesty of a woman is likely

to be outraged is sufficient without any deliberate intention of

having such outrage alone for its object. There is no abstract

conception of modesty that can apply to all cases. A careful

approach has to be adopted by the court while dealing with a

case alleging outrage of modesty. The essential ingredients of

the offence under Section 354 IPC are as under:

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on

 her; and

(iii) that the criminal force must have been used on the

 woman intending thereby to outrage her modesty.

23) This Court, in Vidyadharan vs. State of Kerala (2004)

1 SCC 215, held as under

“10. Intention is not the sole criterion of the offence

punishable under Section 354 IPC, and it can be committed

by a person assaulting or using criminal force to any woman,

if he knows that by such act the modesty of the woman is

likely to be affected. Knowledge and intention are essentially

things of the mind and cannot be demonstrated like physical

objects. The existence of intention or knowledge has to be

culled out from various circumstances in which and upon

whom the alleged offence is alleged to have been committed.

A victim of molestation and indignation is in the same

position as an injured witness and her testimony should

receive the same weight …..”

24) It is undoubtedly correct that if intention or knowledge is

one of the ingredients of any offence, it has got to be proved

like other ingredients for convicting a person. But, it is also

equally true that those ingredients being state of mind may

not be proved by direct evidence and may have to be inferred

from the attending circumstances of a given case. The

sequence of events which we have detailed earlier indicates

that the appellant-accused had the requisite culpable

intention.

25) This Court, in Tarkeshwar Sahu vs. State of Bihar,

(2006) 8 SCC 560, held as under:-

“39. So far as the offence under Section 354 IPC is concerned,

intention to outrage the modesty of a woman or knowledge that

the act of the accused would result in outraging her modesty is

the gravamen of the offence.

40. 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. Modesty is an attribute associated with female human

beings as a class. It is a virtue which attaches to a female owing

to her sex.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 2126 OF 2010

S.P.S. Rathore V C.B.I. & Anr.

Dated:SEPTEMBER 23, 2016.
Citation:AIR 2016 SC 4486,2017 CRLJ 537

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What is basic concept of outraging modesty of woman?

Coming to the question as to whether Sections 354 and 376 of the IPC have any application, it is to be noted that the provision of Section 354 makes penal assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of the offence under Section 354 IPC are as under: 
(a) That the assault must be on a woman. 
(b) That the accused must have used criminal force on her. 
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty. 

What constitutes an outrage to female modesty is nowhere defined in IPC. 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. Modesty in this Section 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, 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 any deliberate intention having such outrage alone for its object. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows: 
"Decorous in manner and conduct; 
not forward or lower; Shame-fast; 
Scrupulously chast."
ALLAHABAD HIGH COURT
CRIMINAL APPEAL No. - 285 of 2011
Jag Mohan S/O Ram Lal Vs State Of U.P. 
Order Date :-09.06.2016 
Hon'ble Dr. Vijay Laxmi,J. 

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Whether prosecution U/S 354 of IPC can be stopped U/S 258 of CRPC for want of sanction U/S 197 of CRPC?

The learned Sessions Judge has also considered factual aspect
on merit. The complainant has made allegations that while snatching a
muster roll from her hand the accused intentionally touched her breast
and her right hand. I do not want to go into the merits and I restrain
myself to assessing the deposition of the complainant and
contradictions therein, if any, as the matter is still pending before the
learned Magistrate. I only hold that act alleged cannot be considered as
the act done in the discharge of the official duty. The allegations made
are unconnected with the function or the job or the duty of the
respondent/accused. A view taken by the learned Sessions Judge is
therefore not correct, but the findings given by the learned Magistrate
while rejecting the application under Section 258 on the ground that
sanction under Section 197 is required are correct and therefore I am
inclined to set aside the order passed by he learned Sessions Judge
and uphold the order passed by the learned Magistrate. 
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPEAL NO.29 OF 2012

State through Public Prosecutor V/s Shri Ulhas Kadam,

 CORAM : MRS.MRIDULA BHATKAR, J.
 DATE: 25th FEBRUARY, 2014
Citation;2016 CRLJ(NOC)68 Bom

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Whether court should give benefit of Probation of Offenders Act, 1958 to accused convicted for offence U/S 354 of IPC?

 Now we move to the question of sentence vis-à-vis the benefit

granted under the Probation of Offenders Act, 1958. In Azhar Ali

Vs. State of West Bengal, (2013) 10 SCC 31, this Court while

dealing with the question of applicability of 1958 Act to an offence

under Section 354 of IPC, found as follows:

“12. In the instant case, as the appellant has committed a

heinous crime and with the social conditions prevailing in the

society, the modesty of a women has to be strongly guarded

and as the appellant behaved like a roadside Romeo, we do not

think it is a fit case where the benefit of the 1958 Act should

be given to the Appellant.”

 In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9

SCC 681, this Court was dealing with probation of offenders in case

of offence of attempt to commit rape. The finding of this Court in

the said judgment is relevant for all the offences against the women,

which is as follows:

“6. According to us, the offence of an attempt to commit

rape is a serious offence, as ultimately if translated into

the act leads to an assault on the most valuable

possession of a woman i.e. character, reputation,

dignity and honour. In a traditional and conservative

country like India, any attempt to misbehave or sexually

assault a woman is one of the most depraved acts. The

Act (Probation of Offenders Act, 1958) is intended to

reform the persons who can be reformed and would

cease to be a nuisance in the society. But the discretion

to exercise the jurisdiction under Section 4 (of the

Probation of Offenders Act, 1958) is hedged with a

condition about the nature of the offence and the

character of the offender.”

In above case although this Court did not interfere with the benefit

of probation granted by the High Court due to peculiar facts of the

case however it did not approve the reasoning given by the High

Court.

 In the present case the accused is not a minor, rather he has

committed an offence against a minor girl who is helpless. Further,

it is clear from the evidence on record that he ran away only when

the prosecutrix screamed and PW3 came to the place of incident,

which goes on to show that the accused could have had worse

intentions. The offence is heinous in nature and there is no reason

for granting benefit of probation in this case. The Trial Court has

not given any special consideration to the character of the accused

apart from the fact that this was the first conviction of the accused.

We find this is far from sufficient to grant probation in an offence

like outraging the modesty of a woman.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 561 OF 2009

STATE OF RAJASTHAN Vs  SRI CHAND 

Bench: Pinaki Chandra Ghose, Uday Umesh Lalit

Citation; 2015 (4) Crimes 257 SC

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Whether woman can outrage Modesty of woman?

 The argument of Mr. Gupta is that as the Penal Code does not make the act of assault or use of criminal force to any man with intent "to outrage his modesty" an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1). In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section. In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge. For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having. The pronoun "he" used in the expression "that he will thereby outrage her modesty" must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that : under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman's modesty will be outraged, and be punished for the offence. Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.

Madhya Pradesh High Court

Girdhar Gopal vs State on 18 December, 1952

Equivalent citations: 1953 CriLJ 964

Dixit, J.

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