Outraging the modesty of women
Arvind Jain
“If society trivializes modesty, violence against women would result”.           (Simone de Beauvoir, in The ‘Second Sex’)
Hon'ble Justice Fazal Ali and Sabyasachi Mukharjee rightly confessed that “Sometimes the law which is meant to import justice and fair play to the citizens or people of the country is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it negatives their well established rights in law”. (Pratibha Rani vs. Suraj Kumar, AIR 1985 S.C. 628 at page 630)
The Hon’ble judges of the Supreme Court felt it inevitable to decide the issue “Let us reconstruct the scene. The time is 9-30 p.m. The respondent (Major Singh) walks into the room where the baby is sleeping and switches off the light. He strips himself naked below the waist and kneels over her. In this indecent posture he gives vent to his unnatural lust, and in the process ruptures the hymen and causes a tear 3/4" long inside her vagina. He flees when the mother enters the room and puts on the light”. (State of Punjab vs. Major Singh, AIR 1967 S.C.63)
Can’t we say without any fear or even at the risk of contempt that when the baby is sleeping…..law strips himself naked…..satisfy his (un) natural lust and justice(s) flees, when the babies cried? It's horrible to treat the women, as a sex object at any age.
‘Outrage’,’ Women’ and ‘Modesty’: in the eyes of law
Before proceeding further, let us go through the basic definition of ‘outrage’, ’women’ and modesty. Section 354 of the Indian Panel Code, 1860 has provided "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". And as per Section 10 of the I. P. C. “The word ‘woman’ denotes a female human being of any age”. Whereas "modesty" is not defined in the Indian Penal Code, however it means "womanly propriety of behavior, scrupulous chastity of thought, speech and conduct (in men or women) reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions"( Oxford English Dictionary,1933 Edn.)-
Historical precedents
For historical background you may see “Girdhar Gopal who was a Pujari of a mandir caught hold of young girl named Saroj (nine years old) took her to his house on the pretext of giving Prasad to her and when she was inside, he closed the door of room, made her lie on a bed, put a covering on her and then sat upon her, became naked and asked Saroj to removed all her clothes”. (AIR 1953 M.B. 157) “little girl of Five and a half years was playing with a boy of her age and the accused aged about 50 put his finger into her private parts and caused a mark on them”. (AIR 1933 Cal. 142) “The accused took a girl six year old to his room and made her lie down and he lay on her”. (1912(14) Bom L R 961) "The accused took off a girl’s clothes, threw her on the ground and then set down beside her”. (1912(116)PLR 1912). “The petitioner (Bhartu) Cought holds of her, threw her down, put sand in her mouth, got on her chest, and attempted to have intercourse with her”. (AIR 1933 Lahore 1002) “Then he (Sobha Ram) removed the ‘salwar’ of the girl and himself became naked before her. The girl got terrified at the sight of the accused’s male organ in erection and started shirking.” (1953 Cri.L.J. 1534, Pepsu). “The only evidence was that he removed his clothes and showed his private parts to the lady”. (1963(1)Cri. L.J. 391)
Let us not forget that these are mere brief trailers only. The real life stories of the ‘women’, who has been shamelessly ravished, tortured, insulted, humiliated, degraded and denied even handed justice for centuries, are buried so deep in the graveyards of the patriarchy in conspiracy with its legal-agents that it is next to impossible to unearth and expose the same to the human kind. When all are hand-in-glove, nobody dare to bare and open the cupboards containing the skeletons of self incriminating evidences. Deep rooted gender bias has found transparent expression in judgments with unwarranted and undue sympathy with the offenders while acquitting, reducing the sentence, giving benefit of doubt, releasing on Probation or imposing fine only.
Supreme Court on Trial
 Now before Hon’ble Justices of Supreme Court “the question is (was) whether the respondent (Major Singh) who Caused injury to the private parts of a female child of seven and half months is guilty under s. 354 of the Penal Code of the offence of outraging the modesty of a woman”. (State of Punjab vs. Major Singh, AIR 1967 S.C.63)
A.K. Sarkar ,the then Chief Justice of India, in his dissenting judgment, ‘too innocently’ replied “I do not think a reasonable man would say that a female child of seven and a half months is possessed of womanly modesty. If she had not, there could be no question of the respondent having intended to outrage her modesty or having known that his act was likely to have that result. I would for this reason answer the question in the negative.”(State of Punjab vs. Major Singh, AIR 1967 S.C.63 at page 65, Para 8)
With all due regards and reverence, what-so-ever I could understand is that A. K. Sarkar, the then Chief Justice of India, ‘do not think’ at all like ‘a reasonable man’, because he is not ‘a female child of seven and a half months’, who has been a victim of someone’s unnatural lust and ‘modesty’ is nowhere defined in the statutes or code of the patriarchal society. One may wonder that if this is the intellectual outlook, vision, perspective or sensitivity of the head of ‘judicial family’ of the Nation, it can be very well visualized about the other ‘sentinel of justices’! What an hour of pain and pity, sorrow and shame! Let us share the shame and blame equally.
Earlier in the above said case, a similar question was referred to the Full Bench comprising of Justice Mehar Singh, S.B.Capoor and Gurdev Singh of Punjab High Court “Whether the appellant (Major Singh) having fingered the private parts of Balvinder, a girl of 7 ½ months, causing injury to those parts, has or has not committed an offence under Section 354 of the Penal Code?”(Major Singh vs. State, AIR 1963 Punjab 443)
Justice Mehar Singh and Capoor (per majority) adroitly adumbrated that “so far the girl of the age of 7 ½ months is concerned, she is physically incapable of having any sense of modesty or propriety of behavior, and all that can be said is that if she was sufficiently grown-up to have developed such a sense, the act of the accused would have outraged her modesty. The scope of S. 354 cannot be extended in this sense and it is a misnomer to talk of sense of modesty in connection with an infant girl of the age of 7 ½ months.”
Legal-eagles sharply reacted “indubitably it is a ‘ridiculous, outrageous, preposterous and retrograde’ judgment in all respect- legally, ethically, morally and logically”. It seems that the majority was (mis)guided by the judgment in Emperor vs. Tatia Mahadev, wherein the accused took a girl six year old to his room and made her lie down and he lay on her. The Magistrate was apparently of the opinion that `the girl being only six years old was too young to have any sense of modesty developed’ and sentenced a fine of Rs. 60 only U/s. 352 of IPC but the Hon’ble Justice Batchelor and Justice Rao of Bombay High Court clarified that under section 10 of the IPC the word `women’ denotes a human being of any age and the girl Chandribai screamed and ran away when the accused began his assault on her. This is a clear indication that she felt her modesty to be outraged by the accused’s conduct. (14 Bom L R 961)
The majority was further (mis)directed by the precedent of Soko vs. Emperor, where the little girl of Five and a half years was playing with a boy of her age and the accused aged about 50 put his finger into her private parts and caused a mark on them. Justice Jack held that “it must be shown that the assault was made intending to outrage or knowing it to be likely to outrage the modesty of the girl. The conduct of the girl shows that in fact her modesty was not outraged. There is no suggestion that she had any hesitation in telling her mother exactly what had happened, it was therefore doubtful whether in fact the modesty of the girl was outraged and therefore the conviction ought not to have been under section 354 IPC”. (AIR 1933 Cal. 142)
Majority also adopted the same illogical path of ‘victim’s reaction’ and got (im)moral support from Girdhar Gopal Vs. State, wherein on the afternoon of 10-02-1951 at about 4.30 p.m, Girdhar Gopal who was a Pujari of a mandir caught hold of young girl named Saroj (nine years old) took her to his house on the pretext of giving Prasad to her and when she was inside, he closed the door of room, made her lie on a bed, put a covering on her and then sat upon her, became naked and asked Saroj to removed all her clothes. The girl shouted for help and was rescued by her brother and neighbors by forcibly opening the door. The learned counsel strongly relied upon the judgment in Soko vs. Emperor, but the Hon’ble Justice Dixit said “It is unnecessary to consider here whether a little girl of five years of age can be said to have developed a sense of modesty contemplated by Section 354, Penal Code. So far as the present case is concerned, it is clear that when the applicant asked Saroj to remove her clothes, she refused to do so and shouted. It cannot, therefore, be said that she had not developed any sense of modesty. To my mind, the act of the applicant in confining Saroj in a room, in making her lie on a bed and then sitting on her and becoming naked is clearly one amounting to use of criminal force with the intention or knowledge that the girl’s modesty will be outraged. The applicant has been rightly convicted under section 354 and 342, Penal Code. The appropriateness of the sentences awarded to him is amply made out”. (AIR 1953 M.B. 157)  
It can’t be said at all      
Sr. Advocate A.S. Chari raised much bigger questions, seriously cautioned and successfully avoided ‘miscarriage of justice’ by scholarly arguing from the platform of common-sense that “it speaks of outraging the modesty of a woman and at first blush seems to require that the outrage must be felt by the victim herself. But such an interpretation would leave out of the purview of the section assaults, not only on girls of tender age but on even grown up women when such a woman is sleeping and did not wake up or is under anesthesia or stupor or is an idiot. It may also perhaps, under certain Circumstances, exclude a case where the woman is of depraved moral character. Could it be said that the legislature intended that the doing of any act to or in the presence of any woman which according to the common notions of mankind is suggestive of sex, would be outside this section unless the woman herself felt that it outraged her modesty? Again, if the sole test to be   applied is the women’s reaction to particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman?” (State of Punjab vs. Major Singh, AIR 1967 S.C.63)
‘The essence of a woman's modesty is her sex’.
Justice Mudholkar unhesitatingly declared that “Under s. 354 IPC while the individual reaction of the victim to the act of the accused would be irrelevant, 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 must fall within the mischief of the section and would, constitute an offence under the section. Since the action of the accused (respondent) in interfering with and thereby causing injury to the vagina of the child, who was seven and half months old, was deliberate, he must be deemed to have intended to outrage her modesty”. (State of Punjab vs. Major Singh, AIR 1967 S.C.63)
Justice Bachawat with a serious concern and conviction added that “the essence of a woman's modesty is her sex. Even a female of tender age from her very birth possesses the modesty, which is the attribute of her sex. Under the section 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. The respondent is punishable for the offence under the section because, by his act he outraged and intended to outrage whatever modesty the little victim was possessed of”. (State of Punjab vs. Major Singh, AIR 1967 S.C.63)
It is worth mentioning here that Mr. Justice Robertson of Punjab Chief Court in Nuna vs. Emperor has held a long back that “where the accused took off a girl’s clothes, threw her on the ground and then set down beside her, he undoubtedly committed an offence under section 354 IPC and was not guilty of an attempt to commit rape”. The Judge remarked “I should have convicted and sentenced him to 2 years rigorous imprisonment under section 354, if I had tried the case originally myself. He has however being whipped, and in consideration of that I shall remit One year out of the two” (116 PLR 1912)
 “The culpable intention is a crux of the matter”
Five years later Hon’ble Justice Baharul Islam of High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura in Sadananda Borgohain vs. State Held that “One of the ingredients of the offence under section 354 is that the accused assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will there by outrage her modesty. If the intention of the accused to outrage the modesty is not proved and the victim is a consenting and voluntary party to the affair, the accused cannot be convicted under section 354”. (1972 Cri.L.J. 658)
In fact in the absence of a liberal and expansive definition of ‘modesty’ and ‘intention of outraging’, even Apex court have been trapped in the patriarchal mindset, containing myths about virginity and chastity and see modesty in the colors of moral virtues, while dealing with the age old cases of young/old male offenders. Modesty cannot be interpreted without understanding the social construct and space in which the women are placed and it has to be understood from their point of view, agony and humiliations.
Hon’ble Justice S. Shamsul Hasan of Patna High Court invented an another escape route in S. P. Mallik Vs. State and held that “merely by putting an hand by an accused on a belly of a female, by itself could not be construed to indicate that accused was using criminal force within the meaning of section 354 for the purpose of committing an offence or injury or annoyance”. The learned Judge took the shelter of the judgment of Supreme Court in State of Punjab Vs. Major Singh by quoting a single line that “the culpable intention of the accused is a crux of the matter” from the judgment. (1982Cri. L. J. 19)
‘Criminal force must have been used’
In Ramkripal S/o Shyamlal Charmakar vs State of Madhya Pradesh (Appeal where the victim had gone in the field near Makararbandh to bring green grass and after collecting the green grass she was on her way back to her home. The appellant came to her and proposed for sexual intercourse. The victim protested and told that she will inform her mother in respect thereof. The appellant induced her not to say so to her mother as he will provide Rs.10/- to her. The appellant felled her on the ground and removed her undergarment and ravished her. She was crying in pain and at this the appellant had stuffed her mouth by clothes. The genital of the appellant had penetrated in her genital which gave immense pain to her and, thereafter, the appellant left her. She saw blood oozing from her private part which has besmeared her undergarment”. (Crl.) 370 of 2007) Hon’ble Justice Dr. Arijit Pasayat & S.H. Kapadia of Supreme Court clarified the essential ingredients of offence under Section 354 IPC as follows:-
(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.               
‘Solitary evidence is not reliable’
Hon’ble Justice M. D. Bhatt of Madhya Pradesh High Court, took ‘shelter under the umbrella of corroboration’ in Bondal and Ors. Vs. State and held that “solitary evidence of Mst. Shanti Bai that her modesty was outraged inside Bondal‘s House by Bedram is not reliable, worth acceptance, in the absence of any other corroborative evidence. As earlier stated, PW10 Gyandas Kotwar does not corroborate her in this aspect of the matter. He has clearly deposed that Mst. Shanti Bai had not told anything either in the matter of attempted sexual intercourse or the outraging her modesty. Bedram hence, deserves to be acquitted of the o ffence under section 354 IPC” (1983 Cri.L.J. 607)
‘Adding insult to injury’
Perhaps it was forgotten that in the same year in Bharwada Bhoginbhai Hirjibhai
Vs State of Gujarat, the Hon’ble Supreme Court observed that "In the Indian setting,
 refusal to act on the testimony of a victim of sexual assault in the absence
 of Corroboration as a rule is adding insult to injury. Why should the evidence of the
girl or the woman who complains of rape or sexual molestation be
 viewed with the aid of spectacles fitted with lenses tinged with doubt,
 disbelief or suspicion? To do so is to justify the charge of male chauvinism
 in a male dominated society”. (1983 AIR (SC) 753)
‘He only made the girl naked and not exposed her private parts.’
Hon’ble Justice S. S. Diwan of Punjab & Haryana High Court in Rameshwar Vs. State of Haryana (1984 Cri. L. J. 786) wherein on 14 April 1980 at about midday Rameshwar entered the house of Balbir, in his neighborhood and caught hold of his wife Smt. Darshan and tried to open the string of ‘salwar’ to commit rape upon her, but she resist it. She picked up a ‘kulhari’, which was lying nearby and gave an injury on the upper limb of Rameshwar. The accused then made good his skill. It was held that “since there was no action on the part of the accused from which it could be inferred that the accused was determined to have sexual intercourse at all events, the accused could not be convicted under section 376 for to attempt to commit rape, but was guilty of committing an offence under section 354”.
Justice Diwan followed the Judgment in state of Madhya Pradesh Vs. Babulal, where the accused had caught hold of the girl and assaulted with a stick. He felled her down on the ground forcibly, snatched her ‘lugra’ and thereby made her naked. The cries of the girl attracted her uncle who came to the spot. On seeing him the accused ran away. It was held that the fact did not show that the accused was determined to have intercourse at all events, because as soon as he saw the uncle of the prosecutrix he ran away. Further he only made the girl naked. He did not expose nor attempted to expose her private parts. Therefore the accused is not guilty of an attempt to commit rape but under section 354 IPC” (AIR 1960 MP 155)
‘Court should be slow if not loathe’
Hon’ble Justice Ramaswamy of Andhra Pradesh High Court adopted a ‘midpath’ in Ippili Trinadha Rao Vs. State of Andhra Pradesh, Wherein the accused was found guilty under section 354 IPC for outraging the modesty of a teen aged girl, on the question of sentence it was held that “if the beneficial provision of the Probation of Offenders Act is extended to the offenders like one punishable under section 354 IPC  for outraging the modesty of a teen aged girl and of like offences on women would not only encourage further escalation of the crime, but also would become difficult to check or arrest the perpetration of those crimes and imperil the modesty of several innocent girls. Under those circumstances, the court has to be circumspect in extending the beneficial provision to the offences committed on the weaker section, viz. woman, if the commission of these crimes remain unchecked then it would threaten the social harmony and security of free movement of woman –folk and thereby danger to the security of society itself. Under those circumstances, I am of the view that court would be slow if not loathe to extend the benefit of the provisions of the Probation of Offenders Act to such type of Offences.” (1984Cri. L. J. 1254)     
Social accountability of the Court?
Hon’ble Justice V. V. Kamat of Bombay High Court rightly pointed out in the State of Maharastra Vs. Manohar @ Manya Kanhaiya Bairagi (1994 Cri.L.J. 2536) that in fact the principles laid down by the Supreme Court are to the effect that the body of a female of a tender age may be immature at a given point of time, but development of a sense of shame, an awareness of her sexual characteristics, although get postponed to a particular age, the court has to regard that from her very birth, she possesses the modesty, which is the attribute of her sex. These principles are well-settled and even then, in a short but cryptic order of acquittal, even though the prosecutrix is a young woman of 20 years of age, in spite of there being evidence of instantaneous resistance and shouts, the order is passed on a solitary reasoning that the accused-respondent did not possess the necessary intention of outraging the modesty of the prosecutrix. This is obviously a legally erroneous conviction.
But the Hon’ble Judge on the question of sentence said “I have given a careful consideration and in the process, I have to take into consideration that this is an event of 1985, for which this Court is considering the sentencing process in 1994. This does not call for the award of any substantive sentence as such; but, at any rate, the offence has to be dealt with an amount of deterrence and obligations of social accountability of the Court”. Despite a lengthy sermon on ‘deterrence’ the accused was sentenced to pay a fine of Rs. 5000/- only out of which Rs. 3000/- only were ordered to be paid to the complainant Kamlabai. Obviously! If fine is deposited by the accused.
Supreme Court : Sense of feminine decency
Hon’ble Justice Dr. A.S. Anand and M.K. Mukherjee of Supreme Court observed in Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill (1995 SCC (Cri) 1059 ) that “the allegation contained in the FIR constitute offences under section 354 and 509 IPC. The word`modesty’ has not been defined in the Indian Penal Code. From the dictionary meaning of `modesty’ and the interpretation given to that word by the Supreme Court in Major Singh case it appears that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one, which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it must be held that the alleged act of the respondent in slapping the appellant on her posterior amounted to “outraging of her modesty” for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady- “Sexual overtones” or not, notwithstanding”.
Mr. K.T.S Tulsi, Sr. Advocate for K.P.S. Gill strenuously urged that “even if it was assumed that Mr. Gill outraged the modesty of Mrs. Bajaj still no offence under Section 354 IPC could be said to have been committed by him for the other ingredient of the offence, namely, that he intended to do so was totally lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof. To buttress his contention he invited our attention to the following passage from the judgment of this Court in Hitendra Vishnu Thakur vs. State of Maharatra (1994 (4) SCC 602) (one of us, namely Anand J. was a party)”.
Let us define ‘Modesty’
 Hon’ble Judges observed “since the word `modesty’ has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct”. The word `modest’ in relation to woman is defined in the above dictionary as “decorous in manner and conduct: not forward or lewd; shame fast”. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.) the meaning of the word modesty is given as “womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman): reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.
‘Some leniency should be shown’- Why not?
Hon’ble Justice M.L. Singhal of Punjab & Haryana High Court rightly pointed out in Ram Mehar vs. State of Haryana (1998 Cri. L. J. 1999) that “here the accused was 45 years old while the victim was 22 years old. Finding her alone when she was returning to her house, he fell upon her like a vulture and lifted her and carried her to the ‘Bajra’ field, felled her on the ground and made every effort to gratify his lust on her by trying to open the string of her salwar. Had she not raised alarm and given sickle blows, he would have gratified his lust on her. The retributive theory is incongruous in an era of enlightenment. It is inadequate as a theory since it does not attempt to justify punishment by any beneficial results either to the society or to the person punished. It is, however, necessary to clear a common misunderstanding that the retributive theory justifies the death penalty. According to the retributivist, society has the right and the duty to vindicate the wrong done to it and it must impose a punishment which fits the crime. It does not mean returning of evil for evil but the righting of a wrong. It is, therefore, essential for the Court while awarding punishment to the offender to do justice to the society because the commission of a crime is a wrong done to the society. Award of punishment in some cases satisfies the wrong done to the society by the offender. Keeping in view the facts and circumstances of the case, I do not think appellant should be released on probation of good conduct. Keeping, however, in view that now the appellant has reached the age 55 or 60 years, I think some leniency should be shown to him in the matter of punishment. He is sentenced to undergo RI for one year and to pay fine of Rs. 1000/- and in default to undergo further RI for two months. Fine if realized shall be paid to Smt. Roshni prosecutrix as compensation”.
Though in  Madan Lal v. State of Jammu & Kashmir, the Hon’ble Supreme Court has clearly declared that “If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354, I.P.C. and not an attempt to commit rape under Section 376 read with 511, I.P.C.” (1998 AIR (SC) 386)
‘About 16 years have elapsed’…..long delay in justice!
Hon’ble Justice Sunil Kumar Garg of Rajasthan High Court point out in Shoukat Vs. The State of Rajasthan that “sentencing an accused person is a sensitive exercise of discretion and not routine or mechanical prescription acting on hunch. The question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate Court should not interfere, but in the present case, the fact that incident took place on 27-05-1985 and since then about 16 years have elapsed should also be kept in mind. Looking to the entire facts and circumstances of the case and keeping in mind the fact that incident took place on 27-05-1985 and now about 16 years have elapsed, the sentence of four years for the offence under Section 366 IPC today appears to be excessive one and on this count the accused appellant Shoukat is entitled to reduction in sentence of thus, in my considered opinion, if the accused appellant Shoukat is sentenced to undergo one year RI instead of four years RI for the offence under Section 366 IPC and six months RI instead of two years RI for the offence under Section 354 IPC, it would meet the ends of justice”. (2002Cri. L.J. 364)
‘It was but natural’……and ‘no marks of violence’!
in Raja Vs. State of Rajasthan the accused lifted the four year old girl Santhosh who was playing outside her residence and took her to lonely place where he became naked by taking out his male organ from the wearing clothes and attempted to insert his penis into private part of Km. Santhosh but ran away when parents of the girl reached at the spot. Hon’ble Justice A.S. Godara of Rajasthan High Court held that “the prosecution has failed to prove beyond reasonable manner of doubt that the appellant did succeed in commission of attempted rape by making himself naked and also lying or attempting to lie on Km. Santosh before he was challenged by the prosecution witnesses. Had he been naked and was sitting over Km. Santosh, it was but natural for him to have attempted to insert his penis into the vaginal part of Km. Santosh and looking to the age and condition of her parents, though the appellant could not have easily succeeded in inserting any part of his penis into the vaginal part of Km. Santosh but, in case, there was any attempt, as alleged, it was but natural that there would have been some marks of violence on the vaginal parts of Km. Santosh. There were none. Looking to the nature of the allegations, there is no difficulty in concluding that the appellant is liable for commission of offence of attempting to outrage modesty of Km. Santosh by forcibly lifting her in his arms and taking her to a lonely `bara’ of her father and either forcing or making her to lie on the ground before he could attempt to commit sexual intercourse on her”. (1998Cri.L.J. 1608)
Perhaps Justice Godara got additional inspiration from Hon'ble Justice S.C. Mahapatra of Supreme Court, who held in State of Orissa V/s. Beharia after deep deliberations observed that “it is to be kept in mind that sexual urge or passion for sexual intercourse is a natural human instinct of both the sexes after a certain variable age which continues for a long period in human life. Restraint and control of passion is a part of civilization. Where restraint falls short and passion becomes uncontrollable beastly quality in man or woman is revealed. Sexual acts and ancillaries there to arising passion are not made public in our society and as far as practicable are kept secret confined to the male and female involved in it. Even permissible sexual acts on account of marital relationship between husband and wife are not public and in some circumstances restraint is put by social customs. Where two persons of opposite sexes capable of sexual urge remain in exclusion, such urge becomes more natural and passion uncontrollable unless there is self restraint. This restraint may be on account of learning, training, difference in age, in economic position or social status or the like or existence of relationship which is a social prohibition for any sexual relationship. Persons otherwise having scope of satisfaction of their urge on account of marital life restrain themselves to have extra marital relationship to avoid being shunned in the society in woman who is not the wife of accused, howsoever immoral may be, is not an offence unless it comes within any of the circumstances stated in section 375 I.P.C. (Rape)”. (1992 Cri.L.J.3814 at page 3816 and 3818, Para 11 and 20)
‘Sexual urge or passion for sexual intercourse is a natural human instinct’ and when it ‘remains in exclusion’ becomes ‘more natural and passion uncontrollable’ because ‘howsoever immoral may be, is not an offence’. Law has nothing to do with ‘morals’ and there is ‘sex explosion in celluloid and book stalls’. Judiciary ‘hope and trust’ every now and then but nobody is bothered about national dreams.
‘Voluptuous meat markets’: No comments My lords!
The Hon’ble justice V. Krishna Aiyer of Supreme Court in Phul Singhvs. State of Haryana, observed that  “The appellant is not a `habitual'and has no vicious antecedents except this fugitive, randy molestation, which is bad enough in a society where women are often socially weak and sexually victimised. It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life, what with libidinous `brahmacharis', womanising public men, lascivious dating and mating by unwed students, sex explosion in celluloid and book stalls and corrupt morals reaching a new ‘high' in high places. The un-convicted deviants in society are demoralisingly large and the State has, as yet, no convicting National policy on femaleflesh and sex sanity. We hope, at this belated hour, the Central Government will defend Indian womanhood by stamping out voluptuous meat markets by merciless criminal action. Isolated prosecutions and annual suppression rhetoric will stultify the law where the vice is widespread and the larger felons are often let loose”. (1980 AIR (SC) 249)
‘Molestation is against human morality’
Hon’ble Justice Deepak Mishra of Madhya Pradesh High Court, in Kuthu @ Tejram Rawat & Anr vs. State of Madhya Pradesh sensitively observed that “in the case at the hand, the petitioners adopted the method of deception by taking the prosecutrix to a lonely place and in a cruel manner pushed in a bunch of leaves into her mouth, untied her under garments in their design to satisfy their carnal desire. Their act is irrefragably a reprehensible one. They became quite oblivious of the agony and anguish of a young helpless girl. To deal with them leniently would amount to a demonstration of misplaced sympathy. I am of the considered view that the sentence imposed does not call for interference”. (1998Cri. L. J. 960)
Justice Mishra firmly pointed out that “youth does not have the license to commit offence and claim for exoneration. It has to be kept in mind an offence to the present nature, is not only an offence against the physical frame of another person but, in fact, it is an offence against dignity of another individual. An act of molestation is against human morality and a vulgar exhibition of complete disregard of ethics, values, and non-concern for others’ emotions, sentiment and feelings. Imposition of sentences to have the manifestation of criminal justice, keeping in view of the cry of the society”.
Monetary compensation not enough
 Hon’ble Justice Vishnu Sahai of Bombay High Court rightly observed in Shivraj Chandrappa Yadav Vs. State of Maharastra that “It is well settled that where conviction is founded on a concurrent finding of fact the revision court does not interfere unless they can be stigmatized as being perverse. After giving most anxious consideration in my view, the petitioner does not deserve even an iota of sympathy. Accepting the submission of Mr. B. R. Patil, in a case like this in my view, would be adding insult to the injury. Sunita would feel humiliated in realizing that for the depraved act which the petitioner committed on her she is being monetarily compensated. It would rekindle the memories of the nauseating incident in her mind and revive the traumatic memories which after an efflux of time and with great difficulty she would have forgotten, 11 years ago, when the incident took place”. (1998Cri. L. J. 3168)
In such cases orders of part payment to the victim(s) out of fine (if paid) imposed on the culprit is nothing but spreading acid on the wounds, which might have healed if the offender would have been appropriately punished. It’s impossible for anybody to understand except the victim who suffers pain and humiliation.
‘Appellant is entitled to benefit of doubt’
In Pandurang Sitaram Bhagwat vs State of Maharashtra (Appeal (crl.) 1513 of 2004) where the accused entered into the room, closed the door and outraged her modesty by embracing her from backside and touched her breasts.  Hon’ble Justice N. Santosh Hegde & S.B. Sinha of Supreme Court held that “We, therefore, are of the opinion that having regard to the totality of the fact and circumstances of the case, the Appellant is entitled to be given the benefit of doubt”.
‘Judicial conscience shocked’
Kamalanantha and Ors. Vs State of Tamil Nadu, (Appeal (crl.) 611-612 of 2003) Hon’ble Justice B.N. Agrawal & H.K. Sema of Supreme Court observed that “The facts of this case, as revealed by the prosecution, shocked the judicial conscience. It illustrate a classic example as to how the insatiable lust for sex of Swami Premananda leads to the raping of `13 Ashram girls and murder of one Ravi. The Ashram which is supposed to be God abode turned out to be devil's workshop. Premananda to whom the inmates of the Ashram regarded as God having the divine power turned out to be a monster.
It is a classic case of betrayal of fatherly and divinely trust of the inmates of the Ashram girls who were mostly orphans and destitutes, brought from Srilanka except Nallammal and Mary.The facts of the case also illustrate a classic example as to how a game- keeper has become a poacher or a treasury guard has become a robber. From the facts as disclosed by the prosecution, some of the victim girls were brought up by Premananda since when they were aged about 2, 3 and 6 years. They were reared to be butchered later when they attained the age”.
 ‘Child abuse and rape are increasing’ but……
Thirty seven years after the Major Singh episode, the Hon’ble Judges of Supreme Court realized and observed “The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that Parliament give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves” (Supreme Court in Sakshi’s case, 2004 Cri.L.J. 2881)
Law Commission: No Need to Amend Laws
But the Law Commission in its 156th Report said “Sexual child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under section 375 IPC. If there is any case of penile/oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences. If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed section 354 IPC would be attracted. A distinction has to be naturally maintained between sexual assault/use of criminal force falling under section 354, sexual offences falling under section 375 and unnatural offences falling under section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract section 354 IPC within the ambit of `rape’ which is a distinct and graver offence with a definite connotation”.( Paragraph 9.59 )
Obituary to the children’s right
Hon’ble Justice Mrs. K.Hema of Kerala High Court rightly enunciated and suggested amendment in Section 354 on the lines of Andhra Pradesh in Santhosh Madhvan @ Amrutha Chaithanya vs. Circle Inspector of Police Ernakulam & Anr that “The Indian Constituion also emphasizes the need to protect women and children by enacting adequate laws. Many decades have passed now, after independence. Several instances of sex racket cases where women and children are subjected to sexual assaults and exploitation were reported in this State. In 2004, the Supreme Court also in Sakshi’s case (2004 (5) SCC 518) observed thus: “The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required.” (2008 Cri. L. J. 4246)
It was further observed by Justice Mrs. K. Hema that “Still, the law-makers appear to have either not understood the gravity of the problem or they are shutting their eyes to it. The law commission on its 156th Report, referring to the question whether there was any need for amendment to section 354, 377 and 376 stated, ‘It is needless to mention that any attempt to commit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may not be necessary’. It appears, the golden vibrant letters enshrined in the constitution remain as mere petrified black prints of obituary to the children’s right against sexual abuse.”(ibid)
The existing laws and legal procedures humiliate the rape victim much more than the culprit. The traumatised child/women are often asked extremely disturbing questions and (un)fortunately; case file gather dust in the slow judicial procedures for (15-20) years together. “Bail not jail” is the rule and ultimately most of the accused are acquitted or discharged by extending benefit of doubt.It unbelievable that they were suffering from an illness of sexual lust and never really meant to harm the helpless minors and now have great remorse. If they are really ‘sick minds’ – let us send them all      to mental asylum, otherwise it will be letting the ‘wolves’ free to ravish the entire generation. After all how long the society can go on tolerating the violence, judicial sexism and onslaught on human rights.
Indian Chamber of Law
170, Lawyer’s Chambers
High Court of Delhi
New Delhi - 110003


on 09 January 2009
Published in Criminal Law
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