Hitting Chest With Elbow Does Not Show Intent To Outrage Woman's Modesty: Kerala High Court Reverses Conviction

The trial court had convicted the revision petitioner under Section 354 IPC and sentenced him to one month of simple imprisonment and a fine of ₹1,000. The appellate court subsequently confirmed the conviction and sentence. Hence, a revision petition was filed before the High Court.

The amicus curiae appearing for the accused argued that the lower courts had failed to properly appreciate the evidence and the possibility of false implication arising from an earlier dispute between the parties. The woman had admitted during cross-examination that a case was pending against her husband based on a complaint lodged by the accused.

It was further contended that the evidence of the woman and her mother, who was examined as a prosecution witness, contained contradictions, and that no independent evidence corroborated their version of the incident. The defence also pointed to a one-day delay in lodging the first information report and argued that the essential ingredients of Section 354 IPC were not established.

The Public Prosecutor submitted that the trial and appellate courts had properly appreciated the evidence and that there was no illegality, irregularity or perversity warranting interference in revision.

The Court noted that the essential ingredient for attracting an offence under Section 354 is the intention to outrage the modesty of a woman. It observed that the nature and circumstances of the act committed have to be scrutinised carefully to ascertain the intention of the person.

“Intention being a state of mind, the same cannot ordinarily be proved by direct evidence. In order to ascertain the intention behind an act, a court cannot search into the mind of the person concerned.” the Court said.

The Court noted that the specific overt act attributed to the accused was hitting the woman's chest with his elbow and held that the alleged conduct, as presented in the case, did not establish the requisite criminal intention.

“In the case at hand, the specific overt act attributed to the accused is that he hit the chest of the prosecutrix with his elbow. I am at a loss to understand how a criminal intention to outrage the modesty of a woman can be attributed to a person who allegedly committed such an act. Therefore, I have no hesitation in holding that the necessary mens rea to constitute an offence under Section 354 of the IPC is lacking in this case.” the Court said.

The High Court also examined the evidentiary basis of the conviction. It noted that the trial court had primarily relied on the testimony of the woman and her mother, while the appellate court had affirmed the conviction on the basis of their evidence.

The Court observed that the existence of a prior case against the woman's husband, lodged on the accused's complaint, raised the possibility of false implication. In such circumstances, the woman's testimony required closer scrutiny, and independent corroboration was considered necessary before acting upon it.

The Court clarified that the testimony of a victim in a sexual assault case is to be assessed on the same footing as that of an injured witness and that a witness's relationship with the complainant is not, by itself, a ground to discard the evidence.

However, it found that no independent evidence had been adduced either to establish the occurrence or to prove the mother's presence at the scene at the relevant time.

It further held that even if the evidence of the two witnesses concerning the alleged act was accepted at face value, the act would not satisfy the ingredients of an offence under Section 354 IPC.

The Court thus set aside the conviction and sentence, and acquitted the revision petition.

Counsel for Revision Petitioner: M.H. Hanil Kumar, Gopika Anil

Counsel for Respondent: Taniya Joy (PP)

Amicus Curiae: Clara Sherin Francis