J & K HC: Daughter in law making allegation against her father in law that he has outraged her modesty-relevance of this allegation in deciding anticipatory bail application

Learned counsel for the petitioner has contended that the petitioner is aged 74 years and at this age it is improbable that he would have launch sexual assault upon none else than his own daughter-in-law. It has been submitted that the fact of the matter is that the husband of the prosecutrix, who happens to be the son of the petitioner, has passed away, whereafter the prosecutrix has re-married and she at the behest of her husband wants to have a share in the property of the petitioner. The learned counsel has submitted that already there is a civil litigation going on between the parties and the petitioner has filed a Suit for permanent prohibitory injunction against the prosecutrix and her husband before the Court of Sub-Judge, Nowshera in order to protect his possession over the land owned by him in village Hanjana ThakraTehsil Nowshera District Rajouri regarding which the prosecutrix and her husband are making persistent attempts make forcible entry. Copy of the interim order passed by the learned Sub Judge, Nowshera has also been placed on record.

{Para 4}

5. Learned counsel for the petitioner has also contended that it is improbable that the petitioner would sexually assault his daughter-in- law, that too, in presence of his wife. He has further submitted that the prosecutrix while making her statement under Section 164-A Cr.P.C., during investigation of the case, has introduced a new story by stating that after the death of her husband the petitioner had committed forcible sexual assault upon her on two occasions, which allegation does not find mention in the FIR lodged by her, which was registered on the directions of the learned Magistrate.

6. On the basis of aforesaid facts, learned counsel for the petitioner has contended that the impugned criminal prosecution launched by the prosecutrix against the petitioner is nothing but a device to wreak vengeance upon the petitioner and his wife so as to coerce them to set apart a share of their property in her favour.

7. Having heard learned counsel for the petitioner and having perused the documents place on record, it appears that there is prima facie merit in the submissions made by the learned counsel for the petitioner, as such, a case of grant of interim indulgence is made out in favour of the petitioner.

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU

Bail App No. 109/2025 and CRMM No. 349/2025

Decided On: 25.04.2025

Mohd. Ayub Vs. Union Territory of J&K

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/0372/2025.

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Bombay HC: Advocate Casting Aspersions On Woman's Character Upon Instructions From Client Is Discharging His Duty, Not Insulting Her Modesty

 Reliance is placed upon the decision in the case of Navin Parekh vs. Madhubala Shridhar Sharma & Ors. MANU/MH/0883/1992 : 1992 Mh.L.J. 1409, in the backdrop that the lawyer had forwarded certain letters on behalf of his client where it was alleged that he had acted in highly unprofessional and unethical manner and he was sought to be prosecuted for alleged defamation, since the words used in the letter were per se defamatory. It is in these facts, it was held that where a party on the basis of sufficient material arrives at a conclusion and states its case and the contemplated course of action in the legal correspondence, it would be wholly inappropriate to allege that an offence of defamation is committed. Justice M.F.Saldanha held that, "in the case of an Advocate where express malice is absent, a Court having due regard to public policy would be extremely cautious of depriving him of the protection of Exception 9 to Section 499 Indian Penal Code. The Trial Magistrates would be well advised to be doubly cautious while entertaining complaints against legal practitioners because the law does confer on them certain privileges which are necessary for the conduct of their professional duties. It is, therefore, only in that class of cases where those privileges have been virtually abused alone, the process should be issued. The obligation of making out a case that the accused, who is an advocate had not acted in good faith and that he had acted maliciously is, therefore, a condition precedent and in absence of this necessary ingredient, the prosecution cannot be sustained." {Para 21}

24. In any case, since we find that there was no intention on part of the Petitioner to insult her modesty, as he was only discharging his duty of defending his clients in the remand proceedings and even if he had cast aspersions upon her character, since they were based on the instructions received from his clients, which has reference in the complaint made on-line and its receipt in the police station is not denied, we deem it appropriate to extend the privilege of an Advocate to the present Petitioner and moreso, what we find is, the statement is not unconnected to the case, as it is the case of his client that by using the pressure tactics, they were being coerced to pay the money.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 3858 of 2024

Decided On: 09.12.2024

Ratnadeep Ram Patil Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre and Manjusha Ajay Deshpande, JJ.

Author: Bharati H. Dangre, J.

 Citation: 2024:BHC-AS:48668-DB, MANU/MH/7471/2024.

Read full Judgment here: Click here.

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Bombay HC: Offence of outraging modesty of a lady depends on intention or knowledge of accused and feeling of woman

From bare reading of the Section, which is identically worded as Section 509 of IPC, the essential ingredients noted are as below :-

i. Intention to insult the modesty of a woman;

ii. The insult must be caused by :

a. uttering any words, or making any sound

b. or gesture.

c. or exhibiting any object

intending that such word or sound shall be heard or that the gesture or object shall be seen by such woman, or

iii. Intruding upon the privacy of such a woman.

The aforesaid provision comprise of three pivotal components for establishing an offence; firstly, the presence of an intention to insult the modesty of a woman; secondly, the manner in which this insult is perpetrated and thirdly, though independently, an intrusion on her privacy, where it is not restricted to utterance or gesture, as it is not qualified by any prescribed manner.

15. In Major Singh (supra), while answering the question whether the Respondent who caused injury to the private parts of a female child of seven and half months is guilty under Section 354 of the Penal Code, an offence of outraging the modesty of a woman, which involves assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, Chief Justice A.K. Sarkar, opined that the offence does not depend on the reaction of the woman subjected to the assault or use of criminal force, as the Section contemplate that the act has to be done "intending to outrage or knowing it to be likely that he will thereby outrage her modesty" and this intention or knowledge is the ingredient of the offence and not the woman's feeling.

In no uncertain terms, the necessary ingredients of the said offence were carved out in the following words :-

"It would follow that if the intention or knowledge was not proved, proof of the fact that the woman felt that her modesty had been outraged would not satisfy the necessary ingredient of the offence. Likewise, if the intention or knowledge was proved, the fact that the woman did not feel that her modesty had been outraged would be irrelevant, for the necessary ingredient would then have been proved. The sense of modesty in all women is of course not the same; it varies from woman to woman. In many cases, the woman's sense of modesty would not be known to others. If the test of the offence was the reaction of the woman, then it would have to be proved that the offender knew the standard of the modesty of the woman concerned, as otherwise, it could not be proved that he had intended to outrage "her" modesty...."

 IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 3858 of 2024

Decided On: 09.12.2024

Ratnadeep Ram Patil Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Bharati H. Dangre and Manjusha Ajay Deshpande, JJ.

Author: Bharati H. Dangre, J.

 Citation: 2024:BHC-AS:48668-DB, MANU/MH/7471/2024.

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How to appreciate evidence of a victim of sexual assault while considering bail application of accused?

There cannot be a straight jacket formula as to how a

woman will react to an act of outrage by a male, since all

women are borne into diffierent circumstances in life, go

through different things and faces, experience and react

differently and necessarily each woman would turn out to be

different from the other. The concept of consent of the victim

or as to at what stage the consent was revoked and the act of

physical indulgence was attempted to be restrained is a matter

of trial. The long lived notion as expressed in the words of

Warren Buffet - “If a lady says No, she means may be” or in

the expression of Rich Santos for Marie Claire - “Most of us

guys have been there; the night ends, we invite the girls come

home with us. When a girl says no, we launch into our second

and third attempts. Sadly, these attemps are filled with

incentives such as promise of guitar playing, of 'fabulas

chicken tenders at the dinner by my place' or even promises:

'I will definitely call on the next day' etc; I have taken girls

home after long discussions, changing Nos to Yeses” are the

old hat tricks and the issue as to whether the girl really

consented freely for a physical indulgence with her is to be

searched by applying the new standards of modern life and the

present social scenario. The freedom guaranteed to a woman to

continue with her bodily integrity and autonomy, free from

sexual violence are the emerging concepts which will have to be

traversed during the course of a trial. This can all be

established during the course of the trial by evaluating the

version of the victim in the backdrop of the psychological

framework, which would be expounded through a trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

LD VC DIST BAIL APPLICATION NO.48 OF 2020

WITH

INTERIM APPLICATION NO.1 OF 2020

Jitin Mothukiri  Vs.  The State of Maharashtra 

CORAM: BHARATI DANGRE, J.

DATED : 21st JULY 2020

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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 court should quash prosecution for offence of outraging modesty of woman on basis of Crude settlement?

The allegations levelled against petitioner are of outraging the
modesty of a woman. The incident in question has not been explained.
Trial Court’s order of 9th February, 2018 simply records that settlement
has been arrived at between the parties. Such crude settlements are not
acceptable, as it will send a wrong signal to the society.
This court is of the considered opinion that it is not a fit case to
quash the F.I.R. in question on the basis of such crude settlement.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: January 15, 2019
 CRL.M.C. 174/2019

VINAY KUMAR Vs GOVT OF NCT OF DELHI

CORAM:
MR. JUSTICE SUNIL GAUR

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Whether Writing of letter to woman intending to insult her modesty can be construed as making gesture U/S 509 IPC?

That is why even a verbal attack on a woman, a gesture and other acts stated in Section 509 I.P.C. were brought under the said Section. It is clear from a reading of Section 509 I.P.C. that by introducing the said provision, legislature intended that any sort of aggression into a woman's modesty whether by any word, deed or act should be deterred, as evident from the title to the Section itself. Thus, the acts which are done intending to insult the modesty of a woman which may not necessarily involve even any physical advances are also brought within the sweep of a separate provision viz., Section 509 I.P.C.

20. In such circumstances, can it be for a moment presumed that the legislature intended that a person who writes a letter to a woman with the intention to insult her modesty should go unpunished? If such a person, instead of uttering the insulting words, puts in writing all what he determines to utter against a woman and sends it to her, intending to insult her modesty, will any court be justified in holding that the legislature expected such person to escape safely? was it the intention of the legislature that such a culprit must go unhurt only because he used his pen and not his tongue, to insult the victim? After suffering all the trauma, when a woman comes before court with the best proof for the assault or violence made on her modesty by producing the letter, can the court refuse to look into the same on the ground that the legislature never intended to bring cases involving writings within the purview of Section 509 I.P.C.?

21. I find it extremely difficult to reach a conclusion which will defeat the very object of Section 509 I.P.C. There can be little doubt that the legislature would not have intended that a person who insults the modesty of a woman by his writings must be kept out of the province of Section 509 I.P.C. In a country like India, legislature would not have ever intended that a person who expresses his attitude or intention to insult modesty of a woman by sending a letter should be absolved from criminal liability. I am of view that the very object of the provision will be defeated if a contrary view is taken. Thus, while interpreting the meaning of the relevant expression in Section 509 I.P.C. in the light of the relevant rules of interpretation, I find that 'writing of letter' to a woman, intending to insult her modesty can be construed as 'making a gesture' under Section 509 I.P.C. I feel quite confident to hold that Indian legislature's intention will not be contrary to what I have already concluded.

22. So, if the court finds that a person writes a letter to woman and that the offender intends that such letter is seen or read by such woman and he also intends thereby to insult her modesty, an offence under Section 509 I.P.C. will be clearly attracted. Charge-sheet in this case itself reveals that the Petitioner allegedly wrote insulting and obscene letters to the victim-woman. It is also clear from the records that such letters were sent to her in the name-address so that the letters will be seen and read by the victim. It further appears from the contents of those letters that prima facie, intention of the author of the letters was to insult the modesty of the woman who receives the letter. Such intention can be discerned from the nature of the language, tone and tenor of the writing.

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 9717 of 2002

Decided On: 16.02.2005

M.M. Haries Vs. State of Kerala

Hon'ble Judges/Coram:
K. Hema, J.

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Whether criminal prosecution for outraging of modesty can be quashed if victim is not cited as witness?

It is also submitted by learned Counsel for Petitioner that the person to whom letters were addressed is not cited as a witness by the prosecution and hence the offences alleged cannot be established. Therefore, it is further submitted that continuance of the proceedings would be of no use for the prosecution and it will only result in hardship to the Petitioner. I am not persuaded to quash the charge on this ground also because there is no bar under law in examining a witness who is not cited as a witness in the witness list The question whether examination of the victim is required or not can be considered at the appropriate stage by the court below but the non-inclusion of the victim in the witness list alone is no ground at all to quash the charge. In any view of the matter, this is not a fit case to quash the charge at the threshold.

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 9717 of 2002

Decided On: 16.02.2005

M.M. Haries Vs. State of Kerala

Hon'ble Judges/Coram:

K. Hema, J.

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How to appreciate evidence in case of outraging of modesty of woman?

This Court has no hesitation upon perusal of the statements recorded before the Court below that the statements by the prosecution witnesses are reliable because there is no major contradiction in their statements. The relevant details which should come out to satisfy the ingredients punishable underSection 354-A (2) of IPC are clearly visible. It is established that the applicant demanded sexual favour from the prosecutrix. Further, upon consideration of the fact that such indecent acts are usually committed at a secluded places, as the demand is very personal in nature, the contention about absence of any independent witness has no value and the discussion about reliability of interested/partisan witness answers the contention regarding absence of independent witness.

Madhya Pradesh High Court

Ajay @ Bachan vs The State Of Madhya Pradesh Thr on 17 August, 2017

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Whether offence U/S 509 of IPC is made out against accused even if obscene words are not heard by victim?

Learned   counsel   for   the   appellant   was   at   pains   to
argue that, as PW2 Priyanka Raorane had not heard the obscene
remark hurled at her by the accused, the accused is not liable for
conviction for the offence punishable under Section 509 of the
IPC,   and   at   the   most,   he   can   be   convicted   for   the   offence

punishable under Section 294 of the IPC.  Section 509 of the IPC
reads thus :
509. Word, gesture or act intended to insult
the   modesty   of   a   woman  —   Whoever,
intending to insult the modesty of any woman,
utters any word, makes any sound or gesture,
or   exhibits   any   object,   intending   that   such
word  or sound  shall  be  heard,  or that  such
gesture or object shall be seen, by such woman,
or intrudes upon the privacy of such woman,
shall   be   punished   with   simple   imprisonment
for a term which may extend to one year, or
with fine, or with both.
Evidence of PW1 Akshay establishes what were utterances of the
accused addressed to PW2 Priyanka Raorane, though she might
not have heard the same.  At the cost of repetition, it needs to be
put   on   record   that,   the   accused,   upon   seeing   PW2   Priyanka
Raorane, uttered  “kya ball hai.”   These utterances are obscene
remarks on breast of PW2 Priyanka Raorane.   Therefore, such
utterances are undoubtedly intending to insulting the modesty of
PW2 Priyanka Raorane.   Section 509 of the IPC provides that

utterances intending to insult the modesty of woman should be
with   an   intention   that   such   words   or   sound   shall   be   heard.
Section  509  of the IPC  does not  provide that such  utterances
should   be   heard   by   the   subject.     Hearing   such   utterances   by
anybody would amount to the offence punishable under Section
509 of the IPC.  Hence, no infirmity can be found in the order of
conviction of the accused for the offence punishable under Section
509 of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.791 OF 2012

DIVAKAR BHAIRAVNATH YADAV @ ROCKY  V/s. THE STATE OF MAHARASHTRA 

CORAM : A. M. BADAR
DATE : 17th NOVEMBER 2016 &
18th NOVEMBER 2016.
Citation: 2017 ALLMR(CRI)941

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When offence under SC &ST Atrocities Act is not made in case of outraging of modesty of woman?

Prosecutrix-Khilmatbai (PW-1) deposed in her statement that

when she was going to the handpump for fetching water at about

6.00 AM, appellant Bodhanram came there and caught hold of

her hands and dragged her towards his house. When she was

trying to get herself free, at that time her husband came there

and warned him to leave the hands of his wife then the accused/

appellant assaulted him with a stick and fled away from the spot.

The prosecutrix in her deposition has stated that she knows the

accused very well and the accused belongs to Gond caste but

afterwards she stated that the accused belongs to Lohar caste. It

is pertinent to mention this fact here that the prosecutrix in her

entire deposition before the Court has no where stated that the

Accused/Appellant had committed the offence only because she

belongs to Scheduled Tribe category. She has stated in para 15

of her deposition that there has been a compromise with the

Accused/Appellant and she does not want any action to be taken

against the Accused/Appellant. 11. Dashrath (PW-2) husband of the prosecutrix has also stated that

he belongs to Gond community. He had seen the Appellant

catching hold of the hand of the prosecturix and dragging her.

When he objected to do so the accused/ appellant assaulted him

with a stick. He deposed in his deposition, in para 15 of his

deposition has clearly stated that the quarrel took place between

them was not because of the reason that they belonged to

Scheduled Tribe but it was an ordinary quarrel. He has further

stated that when the prosecturix tried to intervene in the quarrel

between him and the Appellant/Accused, the Appellant/Accused

did not caught hold the hand of prosecutrix with any malafide

intention but only said that being a woman, why she was

intervening in a fight between two males.

12. Jhingobai (PW-3) has stated in her statement that the accused/

appellant caught hold the hands of the prosecutrix and dragged

her. However, Tulsai (PW-7) and Shiv prasad (PW-8) have not

supported the case of the prosecution.

14. The prosecution did not produce any caste certificate of the

complainant/prosecutrix. The prosecution has also not proved

that the appellant was aware of the fact that the complainant

belongs to scheduled tribe community. The evidence of the

complainant is full of contradictions and not supported by

independent witnesses.

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No. 1295 of 1998

Dated: 07 .10.2016

Bodhi Ram 

V

State of Madhya Pradesh 

(Delivered on 7th October, 2016)

Citation: 2017 CRLJ 143 Chhatis

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How to frame charge in case of outraging of modesty of woman?

 We express our dis-satisfaction with the language employed in framing the above-noted charge. We also record our disapproval for use of expression "molested" in the charge. The penal provision contained in Section 354 IPC, as noted above, pertains to an offence which is described in law as "assault or criminal force to woman with intent to outrage her modesty". As noted earlier, Section 211 (2) Cr.P.C. mandates that "if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only".

62. We are conscious that, in general parlance, the word "molest" (of which the word "molested" is the past tense) is also understood to convey "sexual assault or abuse". But, as the following definition of the expression (see Shorter Oxford English Dictionary 6th edition, page No. 1817) would show, it includes possibility of its use in the context of non-sexual harassment as well and does not invariably connote assault or use of criminal force against a woman with intent to outrage her modesty:

―1. Cause trouble to; vex, annoy, inconvenience.

2. Interfere or meddle with (a person or (formerly) a thing) harmfully or with hostile intent. xxx Sexually assault or abuse (a person, esp. A woman or child)‖

63. We may also note here the provision contained in Section 215 Cr.P.C. which deals with the effect of errors in framing the charge. Even a bare reading of the provision makes it abundantly clear that for an error in charge to be treated as "material" so as to vitiate the judicial proceedings, it must be showed that the accused was thereby misled and this has "occasioned a failure of justice".

IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 9th December, 2016
 CRL.A. 538/2016

GAYA PRASAD PAL @ MUKESH  V STATE 

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE R.K.GAUBA
Citation: 2017 ALLMR(CRI)JOURNAL1

Read full judgment here: Click here

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Whether accused can be held guilty for abetment of suicide if he has outraged modesty of lady victim?

Looking to the clear evidence available that the victim
ran inside and committed suicide, the question before me is
whether it could be said that the prosecution proved abetment to
commit suicide.
19. In this regard, the learned counsel for the appellant
referred to the case of M. Mohan Vs. State Represented by

the Deputy Superintendent of Police, reported in AIR 2011
SC 1238 to submit that, for abetment to commit suicide, there
has to be a clear mens rea to commit the offence of abetting the
victim to commit suicide. Reliance was also placed on the
judgment in the matter of Gangula Mohan Reddy Vs. State of
A.P. reported in AIR 2010 SC 327 and it has been argued that,
for abetment, instigating or intentional aiding the person to
commit the act of suicide has to be established. Paras 18, 20
and 21 of the judgment need to be reproduced.
"18. In the instant case, the deceased was
undoubtedly hypersensitive to ordinary
petulance, discord and differences which happen
in our day-to-day life. Human sensitivity of
each individual differs from the other. Different
people behave differently in the same situation.

20. Abetment involves a mental process of
instigating a person or intentionally aiding a
person in doing of a thing. Without a positive
act on the part of the accused to instigate or aid
in committing suicide, conviction cannot be
sustained.
21. The intention of the Legislature and the
ratio of the cases decided by this Court is clear
that in order to convict a person under Section
306, IPC there has to be a clear mens rea to
commit the offence. It also requires an active
act or direct act which led the deceased to
commit suicide seeing no option and this act
must have been intended to push the deceased
into such a position that he committed suicide."

20. Keeping the above observations of the Hon'ble
Supreme Court in view, it would be now necessary to see
whether in the present matter abetment to commit suicide could
be said to be established. In the present matter, no doubt there
is evidence that the victim was assaulted and dragged outside
the house and there was attempt to push up her sari and there
was outrage of modesty. However, question is whether by such
act it could be said that the acts amounted to abetment to
commit suicide. No doubt there is also evidence that when the
victim ran inside and closed the door, the accused persons
continued to be there giving threat. But then, the evidence of
P.Ws.2 and 3 shows that, before the present incident there was
no quarrel between the parties and their relations were not
strained. The cross-examination of P.W.2 Syed Imam shows that
the relations between them and accused were cordial prior to the
incident and they never quarreled. P.W.3 Jubedabee stated that
the relations between her, P.W.2 Syed Imam and the accused
were cordial and that it was true that before the incident there
was no quarrel between the complainant and the accused. Thus,
although there is evidence that these prosecution witnesses had
trouble due to the liquor business of the accused persons and the
victim had even complained to one Deorao Khandare, before the

incident there were no strained relations as such. Thus, merely
because the incident of house-trespass, assault and outraging
modesty took place, that by itself cannot be calculated as
abetment to commit suicide. There is no material to show that
the intention of the accused persons was that the victim should
commit suicide. There is no material to show that they instigated
her to commit suicide or assisted or helped her. It was also not
a situation where circumstances were so created that the victim
had no other option than to commit suicide. It appears that, the
victim was over sensitive and at the spur of moment reacted in a
manner which may not have been expected by anybody. The
evidence shows that, even after the victim went inside, for some
time the accused were there outside, and the family could not
enter. It shows that, the victim had not, even while rushing
inside the house, indicated anything that she will commit such
act. Had that been so, the family would have made a hue and
cry and reacted faster.
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.836 OF 2015
Vikrant @ Vikki s/o Kashinath Khandare,

V
State of Maharashtra

CORAM: A.I.S. CHEEMA, J.
DATED: 10th August, 2016.

Citation:2016 ALLMR(CRI)4604

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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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GUJARAT HC SAYS, PEEING IN PUBLIC MAY BE INDECENT, BUT CAN’T BE SAID TO OUTRAGING WOMAN'S MODESTY

 In an unusual case that came before it for hearing, Gujarat high court observed that unrinating in the open may be an indecent act but it certainly does not amount to outraging the modesty of a woman.With this comment, Justice JB Pardiwala dropped Section 354 of the IPC against one Shyam Sundar Dhobi and a lawyer, Chetan Gore, from Vadodara. A tea vendor, Us haben Ode, had accused Dhobi of attempting to outrage her modesty by urinating near her tea stall in Vadi area of Vadodara.

The court, however, said that peeing in the open on a public road even during a physical emergency is an indecent act but it does not cause harm in any manner and is not an attempt to outrage the modesty of a woman as had been alleged by the tea vendor.The incident took place in June last year when Dhobi went to visit his advocate, Gore, in hospital.The lawyer's mother was hospitalized for treatment of a cardiac ailment. Dhobi came, parked his bike near the tea stall, and urin ated there on the road. The tea vendor took exception to Dhobi's action. Within no time, arguments between the two resulted in a squabble as supporters from both the sides thronged the spot.

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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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How to appreciation of evidence when Modesty of women is outraged by her brother in law?

The incident transpired at 1.00 a.m on 21st October, 2007 when 

respondent No.2 was sleeping with her minor child in the kitchen. Her husband was out of the house. She felt that some one had put a hand on her person. She woke-up, she saw that it was her brother-in-law, the 

applicant herein. He was not having his clothes on his person. He was in 

her bed. When she started shouting ,he pressed her mouth. He was sitting on her body. Somehow she rescued herself. She called her mother-in-law. Rather than helping her, her mother-in-law told her that her husband was 

going to leave her and she should assume that her brother-in-law was her husband. There was strained relations between the complainant and her family members. Her husband was having an affair with another lady. He 

used to come once in a week to the house. Only her father-in-law was a good person. Hence her mother-in-law did not come to her assistance. She tried to run away outside the house when her brother-in-law and mother-in-law caught her and her mother-in-law poured kerosene on her and both of them beat her. Somehow she ran away from there and went to the house of her sister to narrate the incident. 

5. This is the substance of the complaint. Such evidence can be given 

only by the victim herself. There is no other to see, depose or corroborate such evidence. There have been certain divorce proceedings between the 

complainant and her husband. The complainant was living in the same house with her child. The family members would naturally not help her if such an incident transpired. She has been cross examined at length. 

However no descrepancies are pointed out in her evidence. No other can 

depose on her behalf. It was contended that there was no independent witness. There would be none under such circumstances. Only her little 

son was present with her. The incident happened after midnight. Hence the neighbours would be asleep. She was not allowed to shout when she tried to shout because the applicant herein closed her mouth. He would 

overpower her. The learned Magistrate has rightly observed that 

multiplication of witnesses is unnecessary and such evidence needs no corroboration of any sort. He has further correctly observed that no women would take recourse to such type of incident to falsely implicate 

anyone by putting her character at stake.

Bombay High Court

C vs The State Of Maharashtra on 10 June, 2013

Bench: R. S. Dalvi

Citation ; 2013 CR L J(NOC)563 bombay

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Whether benefit of Probation of Offenders Act, 1958 should be given to accused in case of outraging modesty of women?

 In the instant case, as the Appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the Appellant behaved like a road side Romeo, we do not think it is a fit case where the benefit of the Act 1958 should be given to the Appellant.1

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1623 of 2013 (Arising out of SLP (Crl.) No. 2817 of 2013)

Decided On: 04.10.2013

 Ajahar Ali Vs  State Of West Bengal

Respondent: State of West Bengal

Hon'ble Judges/Coram:B.S. Chauhan and S.A. Bobde, JJ.

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