Author: Sumedha Ray


Section 354[1]defines assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both. This is a non-bailable, cognizable offence and triable by any Magistrate. This is a non-compoundable offence.

If an offence is cognizable, police have the authority to arrest the accused without an arrest warrant and to start an investigation with or without the permission of a court. Otherwise, police do not have the authority to arrest the accused without a warrant and an investigation cannot be initiated without a court order.

If an offence is bailable, police have the authority to release the accused on bail on getting the defined surety amount along with a duly filled bail bond at the concerned police station. Otherwise, an arrested person has to apply for bail before a magistrate or court.
If an offence is compoundable, a compromise can be done between the accused and the victim, and a trial can be avoided. Otherwise, no compromise is allowed between the accused and the victim except under certain circumstances, where the High Court or The Supreme Court has the authority for quashing the matter.

Detailed Review of Sec 354, Indian Penal Code

Section 354 punishes an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge that it is likely that he will thereby outrage her modesty. The section says that whoever assaults or uses criminal force to any woman with the intention of outraging her modesty with the knowledge that it is likely that he will thereby outrage her modesty, shall be punished with simple or rigorous imprisonment for a term extending up to 2 years or with fine or with both. There must be either an assault or use of criminal force against a woman who according to Section 10 of The Indian Penal Code[2] is a female human being of any age. The offender must either intend to outrage her modesty of the woman or must know that he is thereby likely to outrage her modesty. In State vs Major Singh[3], the Supreme Court while holding the accused 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 the essential ingredient of this Section. 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 a woman who is sleeping at that moment. She might be in deep sleep or for that matter under the spell of anaesthesia 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 laid on top of her and there was no resistance whatsoever by her nor did she make any hue and cry of the situation, his conviction under this Section was set aside as she was held to be consenting party, and there was no evidence of rape and thus 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 marries woman to have traces of semen in their clothes.

Where some laborers, 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 laid 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[4] 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 18 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[5] read with Section 511[6] of the Code.

Where the deceased in her dying declaration stated that the accused persons had entered the 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 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[7] of the Code.

Judicial Overview

In Mrs RupanDeol Bajaj vs. K.P.S. Gill[8] there was an alleged act of top most official State Police in slapping a senior lady officer on her posterior in presence of a gathering of elite people of the society. In fact the situation amounted to outraging her modesty of the lady officer. There was nothing in the FIR that the alleged act was committed accidentally or by mistake. The allegations in the FIR made out offences under Sections 354 and 509[9] 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 vs. State (Admin UT Chandigarh)[10], 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 went that the slapping would embarrass her. The Supreme Court observed that the 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 2 lakhs ordered to be paid to her by way of compensation and that this amount may be given to any woman’s organization 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 Shiv Shanker vs. State of Uttar Pradesh[11], 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. He was held guilty of murder but not awarded death sentence but imprisonment for life.

In Ram Pratap vs. State of Rajasthan[12], 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[13].

The prosecutrix nowhere was stated to have disclosed the incident before the prosecution witnesses. The statements of bot those prosecution witnesses were discarded as hearsay. The medical report did not support the prosecution’s 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[14] to that under Section 35 4 of the Code.

In Narayan vs. State of Madhya Pradesh[15], 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 as stated by her without any evidence by the prosecution cannot in local parlance mean commission of sexual intercourse.

In State of Karnataka vs. Rangaswamy[16], 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 or 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 vs. State of Haryana[17], 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 Pandurang Sitaram Bliagwat vs. State of Maharashtra[18], the Supreme Court observed that the approach that ordinarily 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 Section 376 and 354, Indian Penal Code have been found to have been falsely advanced.

In Ram Kripalvs State of Madhya Pradesh[19], 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.

Section 354 is still a very controversial part of law since it is very difficult to decide when it is being misused and when it should actually be applicable to punish the wrongdoer. “Modesty is not only an ornament but also a guard to virtue.” We may think that the position of women has changed in our society, especially in metropolitan cities, but that is nothing but a myth. We might have progressed but what’s the point in boasting of our growth-story if it hasn’t taught us to respect the modesty of women?

[1] Section 354, Indian Penal Code, 1860.

[2] Section 10, Indian Penal Code, 1860.

[3] AIR 1967 SC 63.

[4] Section 8, The Indian Penal Code, 1860.

[5] Section 376, The Indian Penal Code, 1860.

[6] Section 511, The Indian Penal Code, 1860.

[7] Section 306, The Indian Penal Code, 1860.

[8]1996 AIR 309, 1995 SCC (6) 194.

[9] Section 509, The Indian Penal Code, 1860.

[10]Appeal (crl.)  1032 of 1998.

[11]CRIMINAL APPEAL No. – 295 of 2013.

[12]2002 CriLJ 1430, 2000 (4) WLC 384.

[13] Section 452, The Indian Penal Code, 1860

[14] Section 376, The Indian Penal code, 1860.

[15]2008 CriLJ 1657, 2008 (2) MPHT 138.

[16]AIR 1992 Kant 337, ILR 1992 KAR 1483, 1992 (3) KarLJ 89

[17]Appeal (crl.)  1016 of 1997.

[18]Appeal (crl.)  1513 of 2004.

[19]CRIMINAL APPEAL NO. 1866 OF 1996.

About the Author: Sumedha is a fourth-year law student at Symbiosis Law School, Pune.

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