Moving hands over minor girl's back and head without sexual intent and saying "she has grown up" not outraging modesty: Bombay High Court

The Bombay High Court recently held that if a man merely moves his hands over the back and head of a minor girl and passes a comment that "she has grown up", it would not amount to outraging her modesty [Mayur Babarao Yelore vs State of Maharashtra]..Single-judge Justice Bharati Dangre, therefore, set aside the conviction of one Mayur Yelore under charges of trespassing (Section 451) and outraging modesty of woman (Section 354) under the Indian Penal Code (IPC)."In order to outrage the modesty of a woman, what is most important is having an intention to outrage the modesty. It is not the case of the prosecution that the accused did something more than what has been alleged, that is, moving his hand over the back and head of the victim. Neither the victim girl aged 12 – 13 years spoke of any bad intention on his part, but what she deposed is she felt bad or indicating some unpleasant act, which made her uncomfortable," the judge said in the order passed on February 10.Justice Dangre noted that the prosecution did not produce any material on record to show that there was a specific intention on part of the appellant to outrage the modesty of the girl."In absence of a specific intention, being established by the prosecution, being to outrage the modesty, it is not understood as to how Section 354 has been invoked and even held to be proved, with the specific version that the victim was frightened on the accused touching her on her back and saying that she has grown up," the judge said.The utterance by the accused definitely indicate that he had seen her as a child and hence, he said that she has grown up, the bench added..As per the prosecution version, on March 15, 2012, the appellant, who was then 18-years-old, had visited the victim's house when she was alone. He had gone there to give some documents. After entering the house, the girl stated that the appellant asked for water and then sat on a nearby chair. She gave him a glass of water and continued doing her homework. He then stood up from the chair and came near her, rolled his hands on her back and head and said that she has grown up. But the minor girl did not approve of the same and she started shouting for help. The neighbours then rushed into the house and caught hold of the appellant. A phone call was then made to her mother, who returned home and then let the appellant go as she was acquainted with him. She later visited his house to warn him, however, he allegedly threatened her and therefore she filed a first information report (FIR) against him, which led to his arrest and trial.The appellant was then convicted by a Magistrate court which sentenced the appellant to four months and six months, respectively, for trespassing and outraging modesty of the victim. The order was confirmed by a Sessions Court and he then moved the High Court..In her order, Justice Dangre noted the infirmities in the deposition of the victim, her mother, the neighbours, the investigating officer and also the constable, who had recorded the statements of the victim and others."Both the Courts below have seriously erred in appreciating the testimony of the witnesses which is full of inconsistencies which make the prosecution case doubtful. The prosecution has not definitely proved with cogent and reliable evidence that the act alleged to have been committed by the accused would amount to outraging the modesty of the victim," the bench noted.The bench further pointed out that a case of outraging modesty is not made out since there was neither an assault nor criminal force applied, as contemplated under section 350 of the IPC. The present case prima facie appeared to be an impromptu action with no sexual intent involved and therefore the Magistrate and Session Court erred in appreciating the evidence and construing it to be amounting to an offence under Section 354, the High Court said."If there was no intention to commit the offence for outraging of modesty of the victim girl, the entry into the house, could not be said to be amounting to house trespass with an intention to commit an offence," the bench held.With these observations, the bench quashed the conviction and sentence..Advocate Amol Hunge appeared for the Applicant.Additional Public Prosecutor VA Thakre represented the State..[Read Order]