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Synopsis

The Kerala High Court (HC), in a recent judgment, has emphasised the necessity of a ‘zero-tolerance approach’ towards sexual offences to curb the menace of sexual assault and molestation. The court raised concerns over the rising number of such cases, stating that “The act of outraging a female’s modesty is increasing exponentially thereby taking a toll on the lives of women leading to mental and physical agony.”

Justice A. Badharudeen, presiding over the court, made the observation while upholding the conviction of two men accused of outraging a woman’s modesty, however, the court reduced their sentence from six months to five months of rigorous imprisonment.

The case stemmed from an incident in which the victim (PW1), a woman traveling with her child in an autorickshaw, was subjected to assault by two accused men. According to the prosecution, one of the accused pressed on her left breast while the other grabbed her belly, thereby outraging her modesty. The victim, in distress, received a phone call from her mother (PW4) and, upon answering, her mother overheard her cries for help.

Based on the testimony of the victim and her mother, the trial court convicted the accused men under Section 354 (assault or criminal force with intent to outrage a woman's modesty) read with Section 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (IPC) and sentenced them to six months of rigorous imprisonment.

The accused/ petitioners challenged the verdict before the appellate court, which upheld the trial court's decision. Subsequently, they approached the High Court, arguing that the conviction was based solely on the testimony of the victim and her mother, without independent witnesses. Additionally, the petitioners sought leniency in sentencing, highlighting that the incident occurred in 2011, before the 2013 amendment to Section 354 IPC, which enhanced the minimum punishment.

The HC, taking into account the facts and circumstances of the case, ruled that mere omissions in witness testimony do not weaken an otherwise credible prosecution case. It found that the victim's version remained consistent and unshaken during cross-examination, and the absence of independent witnesses did not weaken the prosecution's case.

During the course of hearing, the court highlighted that Indian society places great emphasis on a woman’s modesty, and the rising instances of such offences necessitate a strict legal approach. “In recent years, the issue of the safety and security of women has come to the forefront in India, with large number of cases of sexual offences against women being reported. The legislature has taken steps to strengthen laws against sexual offences, with stricter deterrents for rape and sexual assault. However, sexual offences against women continue to be a major problem in India and efforts are still needed to ensure that laws are effectively implemented. It is important for individuals to be aware of their rights and for the society to take a zero-tolerance approach towards sexual offences to arrest the menace of sexual assault and molestation,” the court said.

The court reaffirmed that the offence of outraging a woman’s modesty is not confined to physical acts but also includes verbal and non-verbal conduct intended to insult her modesty. “Modesty is not only limited to physical modesty but it also includes moral and psychological modesty. The moral modesty of a woman is said to be the sense of shame or bashfulness that a woman feels when faced with any act that is intended to outrage her modesty. The psychological modesty of a woman is said to be her innate sense of self-respect and dignity. Thus the modesty of a woman is sublime and any sort of intrusion intercession is to be dealt with resolutely and soberly,” the court observed.

The court held: “it could be gathered that the trial court as well as the appellate court rightly entered into conviction on finding that the evidence of PW1 supported by PW4, fully established the prosecution case that the accused persons outraged the modesty of PW1 by assault and use of criminal force. The said finding only to be justified.”

While upholding the conviction, the court considered the pre-2013 legal framework and modified the sentence, reducing it to five months of rigorous imprisonment.

 

Cause Title: Biju Abraham and Another v State of Kerala [CRL.R.P.NO.1196 OF 2024]

Appearance: Counsel for Petitioners- Advocates K. N. Radhakrishnan (Thiruvalla), Anju Susan Reji; Counsel for Respondents- Senior Public Prosecutor Renjith George