Report No. 42
16.81. Section 350 to be omitted and section 351 to be revised.-
We accordingly propose that section 350 may be omitted, and that section 351 be revised as follows.-
"351. Assault.- A person is said to assault another when without that person's consen.-
(a) applies force, directly or indirectly, to that person in order to the committing of an offence, or intending or knowing it to be likely that he will thereby cause in jury, fear or annoyance to that person, or
(b) threatens, by any gesture or preparatory act, to apply such force as aforesaid to that person, in tending or knowing it to be likely that the gesture or act will cause him to apprehend that such force is about to be applied.
Explanation.- Mere words do not amount to an assault; but the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.
(a) Z is sitting in a moored boat, on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here, A has indirectly applied force to Z.
(b) Z is riding in a horse-carriage. A lashes the horses, and thereby causes them to quicken their pace. Here A has indirectly applied force to Z.
(c) A pulls up a woman's veil without her consent, intending or knowing it to be likely that he will thereby frighten or annoy her. He has assaulted her.
(d) A incites a dog to spring upon Z without Z's consent. Here, A has applied force to Z and if he intends to cause injury, fear or annoyance to Z, he has assaulted Z.
(e) A begins to unloose the muzzle of his dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has assaulted Z.
(f) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has assaulted Z.
(g) A takes up a stick, saying to Z, "I will give you a beating". Here, though the words used by A could not amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault."
1. Smith and Hogan Criminal Law, 2nd Edn., p. 249.
2. See para. 6.8, above.
3. See para 8.9, above.
16.82. Section 35.-punishment to be increased.-
Under section 352, a slight increase in punishment is recommended. The imprisonment, at present three months, should be increased to six months; and the fine, at present limited to Rs. 500, should be unlimited.
16.83. Sections 352 and 358 to be combined and revised.-
While section 352 punishes assault otherwise than on grave and sudden provocation, the punishment for assault on such provocation is provided in section 358. Since the Explanation of section 352 also has to apply to section 358, the two sections may be combined and revised as follows.-
"352. Punishment for assault.-(1) Whoever assaults any person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
(2) Whoever assaults any person on grave and sudden provocation given by that person shall be punished with fine not exceeding five hundred rupees.
(3) Grave and sudden provocation will not mitigate the punishment for assault if the provocatio.-
(a) is sought or voluntarily provoked by the offender as an excuse for the offence, or
(b) is given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant, or
(c) is given by anything done in the lawful exercise of the right of private defence.
The provision in the existing Explanation that "whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact" is not required after abolition of jury trials, and has, therefore, been omitted.
16.84. Section 353.- No change is needed in section 353 except the omission of the words "or used criminal force to".
16.85. Section 35.-outraging the "modesty" of a bab.-Supreme Court's view.-
Section 354 punishes a person who assaults or uses criminal force to a woman with intent to outrage her modesty. We have earlier1 referred to a judgment of the Supreme Court2 in which it was held that even a baby of seven and a half months old has modesty that can be outraged by use of criminal force within the meaning of this section. In that case, the accused had indecently assaulted the baby and caused injury to its genitals, and the question arose whether the act amounted to an offence under section 354. The High Court of Punjab acquitted3 the accused holding that a girl of seven and a half months cannot have a "modesty" which can be outraged. The Supreme Court, by a majority, reversed the High Court's judgment. Bachawat, J. observed.-
"The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under section 354. 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, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under the section."
And Mudholkar J., observed as follows.-
"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 itself. 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 woman when such a woman is sleeping and did not wake up or is under anaesthesia 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 woman's reaction to a particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman? These considerations impel me to reject the test of a woman's individual reaction to the act of the accused. I must, however, confess that it would not be easy to lay down a comprehensive test; but about this much I feel no difficulty.
In my judgment 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 this section."
Sarkar, C.J., however, dissented.-
"To say that every female of whatever age is possessed of modesty capable of being outraged seems to me to be laying down too rigid a rule which may be divorced from reality. There obviously is no universal standard of modesty. If my reading of the section is correct, the question that remains to be decided is, whether a reasonable man would think that the female child on whom the offence was committed had modesty which the respondent intended to outrage by his act or knew it to be the likely result of it. 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."
1. See para. 2.5.
2. State of Punjab v. Major Singh, AIR 1967 SC 63 (65, 67): 1966 (Supp) SCR 286.
3. AIR 1963 Punj 443 (FB).
16.86. Indecent assault on children to be an offence.-
While substantial justice was done in the case, one cannot (with great respect) help obierving that the conclusion was reached by the majority after some straining of the language. The expression "modesty" connotes a retiring, bashful or decorous disposition. It is a strain on the ordinary use of language to apply that expression to a baby in arms. It is better to have a direct provision on the offence of indecent assault on children of whatever age or sex, so that courts may not (in the case of girls) be thrown back upon a restricted provision like the present section 354. We are of the opinion that apart from assault to outrage 'modesty', acts of indecency with children should be made specifically punishable by a new section reading as follows.-
"354A. Indecent assault on a minor.- Whoever assaults any minor under sixteen years of age in an indecent, lascivious or obscene manner, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
16.87. Section 355.- No change is needed in section 355 except the omission of the words "or uses criminal force to".
16.88. Section 35.-Recommendation.-
Section 356 speaks of assaulting a person "in attempting to commit theft on any property which that person is wearing or carrying". The preposition 'on' appears to be incorrect, and should be replaced by 'of'.1
1. This mistake is also found in the printed copy of the Indian Penal Code as passed in 1860.
16.89. Section 357.- No change is needed in section 357 except the omission of the words "or uses criminal force to"
16.90. Section 358.- Section 358 which is proposed1 to be combined with section 352 will have to be omitted.
1. See para. 16.83 above.
Kidnapping, Abduction, Slavery and Forced Labour