Mohammed Ejaj Shaikh Ismail    (Applicant)  Vs.  State of Maharashtra    (Non-Applicants/ Respondents)

Criminal Revision Application No. 178 of 2023

(Delivered by ANIL L. PANSARE, J.)

Facts: The applicant has questioned the legality, correctness and propriety of judgment and order dated 10-7-2023 passed by the Sessions Court in Criminal Appeal No. 66/2016 thereby dismissing the appeal challenging the judgment and order dated 9-5-2016 passed in Regular Criminal Case No. 484/2015 by learned Judicial Magistrate First Class, Wardha. Learned Magistrate has convicted the applicant for the offence punishable under Section 354 of the Indian Penal Code, 1860 (IPC) and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for one month.

Issue: Whether the accused is guilty of the offence under section 354 IPC?

Arguments on behalf of counsel for applicant:

There are only three witnesses. P.W. 1 is the star witness. According to her, she was studying in Yashwant Mahavidyalaya. The incident occurred near Bombaywala Medical Stores. She has deposed that the applicant had followed her couple of times and abused her. On the date of incident, while she was going to market, the applicant, who was following her on bicycle, pushed/shoved her. She got annoyed, however, she proceeded further. The applicant followed her and, therefore, she beat him. This is how she has narrated the incident. This evidence was found to be sufficient by both the Courts below to convict the applicant for the offence punishable under Section 354 of the IPC.

Arguments on behalf of counsel for non-applicant:

Learned Additional Public Prosecutor has invited the court’s attention to the judgment of the Supreme Court in the case of Raju Pandurang Mahale Vs. State of Maharashtra and another [(2004) 4 SCC 371]. In this case, the Supreme Court has vividly described the essential ingredients of offence under Section 354 of the IPC. The first is that, the assault must be on a woman. The second is that, the accused must have used criminal force on her and the third is that, criminal force must have been used on the woman intending thereby to outrage her modesty. The Supreme Court then referred to its earlier judgment and on the point of ‘modesty’ of a woman and on what amounts to ‘outraging modesty’.

Held: The court allowed the present revision petition and held that, “As regards following and abusing P.W. 1, the said act cannot be said to be capable to shocking the sense of decency of a woman. The act may be annoying but definitely would not shock the sense of decency of a woman. Nonetheless keeping in mind this conduct of the applicant, the ultimate act which he has done will have to be considered, which act is pushing/shoving her while riding bicycle. It is not the case of P.W. 1 that the applicant has touched her inappropriately or has given push at a specific part of her body which made her position embarrassing. The contact with the part of the body of P.W. 1 has been not stated by P.W. 1. In these circumstances, merely because the applicant has on bicycle given a push to P.W. 1, to my mind cannot be said to be an act which is capable of shocking the sense of decency of P.W. 1. The act may be offensive or annoying but cannot be said to be compromising the decency of a woman. That being so, in my considered view, the Courts below have committed an error in holding the applicant guilty for the offence punishable under Section 354 of the IPC.”

The court observed that, “the Supreme Court has noted that the essence of a woman’s modesty is her sex which she possesses by birth. The Supreme Court has held that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman.”