Criminal Appeal No. 246 of 1989. Case: State of Maharashtra Vs Manohar alias Manya Kanhaiya Bairagi. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 246 of 1989 |
| Counsel | For Appellant: Shri S.K. Kadam, A.P.P., Advs. and For Respondents: Shri Joydeep Chatterjee, for Shri S.C. Bora, Advs. |
| Judges | V. V. Kamat, J. |
| Issue | Indian Penal Code (45 of 1860) - Section 354 |
| Citation | 1994 CriLJ 2536 |
| Judgement Date | April 05, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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The question in this appeal against acquittal by the State is as to whether the test of a woman's individual reaction to the act of the accused with regard to outraging of modesty is the test, or, that the essence of a woman's modesty is her sex. In the process, the question is as to whether the Court has to consider a woman's modesty as lying in her sex and exposing through her instantaneous reactions irrespective of the intention of the accused as regards the matter. Reaction of a woman instantaneously is very relevant together with the position that it is her sex that clothes with a born sense of modesty. In fact, these principles are laid down by the Supreme Court and even thereafter. They 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 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 young woman of 20 years of age, in spite of there being evidence of instantaneous resistance and shouts, the order is a 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.
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Although it is elementary, the provisions of Section 354, Indian Penal Code, need a passing reference for the completeness of this judgment. The provision creates a criminal liability of the person assaulting or using the criminal force to any woman, not only intending, but also knowing it to be likely that the result would be an outrage of
the modesty of a woman. It is equally elementary that intention or knowledge is provided by the factual matrix.
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The prosecutrix Kamlabai is a resident of village Dhondwade. She was in the early hours at 5.30 a.m. of December 4, 1985, setting out for getting water from the village well. The well is situated near the village temple of Maruti. The accused-respondent caught her hand and pulled her towards him to be taken to a wada nearby. She raised a hue and cry of resistance. Some persons gathered; and first one was her neighbour Shalik (P.W. 2). The second one to follow was her another neighbour Dhanabai (P.W.3). The evidence shows that...
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