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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: MAJOR SINGH

DATE OF JUDGMENT: 28/04/1966

BENCH: SARKAR, A.K. (CJ) BENCH: SARKAR, A.K. (CJ) MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1967 AIR   63            1966 SCR  (2) 286

ACT: Indian Penal Code (45 of 1860), s. 354-Scope of-Relevancy of ago of victim.

HEADNOTE: Per  Mudholkar, J.: Under s. 354 of the Indian  Penal  Code, while  the individual reaction of the victim to the  act  of the accused would be irrelevant, 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  the  section  and   would, constitute an offence under the section. [293 A-C] Since the action of the accused (respondent) in  interfering with and thereby causing injury to the vagina of the  child, who  was seven and half months old, was deliberate, he  must be deemed to have intended to outrage her modesty. [293 C] Per Bachawat J: The essence of a woman’s modesty is her sex. Even  a female of tender age from her very  birth  possesses the  modesty which is the attribute of her sex.   Under  the section 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. The  respondent  is  punishable for the  offence  under  the section  because,  by his act he outraged  and  intended  to outrage whatever modesty the little victim was possessed of. [293 F; 294 B-C] Per  Sarkar,  C.J.,  (dissenting):  Under  the  section  the accused would be guilty of an offence if he assaults or uses criminal  force  "intending to outrage or knowing it  to  be likely that he will thereby outrage" the modesty of a woman. This intention or knowledge is the ingredient of the offence and  not  the  woman’s  feelings  or  reaction.   The   test therefore. would be whether a reasonable man will think that the  act of the offender was intended to or was known to  be likely to outrage the modesty of the woman. [288 B, F]. In  the  present  case, there could be no  question  of  the accused having intended to outrage the modesty of the  child or having known that his act was likely to have that result, because,  though  the victim is a "woman"  under  the  Penal Code,  no  reasonable man would say that a female  child  of that age was possessed of womanly modesty. [289 G]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION - Criminal Appeal No, 54  of 1964. Appeal from the judgment and order dated the May 31, 1963 of the Punjab High Court in Criminal Appeal No. 1023 of 1962. Dipak  Dutt  Chaudhuri        and R. N.  Sachthey,  for  the appellant. 287 A. S. R. Chari, for the respondent. The following Judgments of the Court were delivered. Sarkar,  CJ.   The question is whether  the  respondent  who caused  injury  to the private parts of a  female  child  of seven  and half months is guilty under s. 354 of  the  Penal Code of the offence of outraging the modesty of a woman.  In the High Court, the matter was heard by three learned Judges two  of whom answered the question in the negative and,  the third answered it in the affirmative.  Hence this appeal  by the State.  It would be convenient to set out the section at once.               S.    354.  "Whoever assaults or uses criminal               force  to any woman, intending to  outrage  or               knowing  it to be likely that he will  thereby               outrage  her modesty, shall be  punished  with               imprisonment of either description for a  term               which  may extend to two years, or with  fine,               or with both". "Criminal force" is defined in s. 350 of the Code and it  is not  in  dispute  that  such force  had  been  used  by  the respondent  to the child.  It is, also not in  dispute  that the  child was a woman within the Code for in the Code  that word is to be understood as meaning a female human being  of any age: see ss. 7 and 10.  The difficulty in this case  was caused by the words "outrage her modesty".  The majority  of the  learned Judges in the High Court held that these  words showed that there must be a subjective element so far as the woman  against  whom criminal force was used  is  concerned. They appear to have taken the view that the offence could be said  to have been committed only when the woman  felt  that her  modesty  had been outraged.  If I have  understood  the judgment  of  these learned Judges correctly, the  test  ,of outrage of modesty was the reaction of the woman  concerned. These  learned Judges answered the question in the  negative in the view that the woman to whom the force was used was of too tender an age and was physically incapable of having any sense of modesty.  The third learned Judge who answered  the question  in the affirmative was of the view that  the  word "modesty" meant, accepted notions of womanly modesty and not the  notions of the woman against whom the offence was  com- mitted.   He observed that the section was intended as  much in the interest of the woman concerned as in the interest of public  morality and decent behavior and the object  of  the section  could  be achieved only if the word  ’modesty’  was considered to be an attribute of a human female irrespective of whether she had developed enough understanding to realise that an act was offensive to decent female behaviour or not. The  reported  decisions  on  the  question  to  which   our attention  was drawn do not furnish clear assistance.   None of them deals With a case like the present. 288 But  I  do  not  think that there is  anything  in  them  in conflict with what I propose to say in this judgment. I  would  first  observe that the offence does  not,  in  my

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opinion,  depend on the reaction of the woman  subjected  to the assault or use of criminal force.  The words used in the section  are  that  the act has to  be  done  "intending  to outrage  or  knowing it to be likely that  he  will  thereby outrage  her modesty".  This intention or knowledge  is  the ingredient of the offence and not the woman’s feelings.   It would  follow  that if the intention or  knowledge  was  not proved,  proof  of  the fact that the woman  felt  that  her modesty  had been outraged would not satisfy  the  necessary ingredient  of the offence.  Likewise, if the  intention  or knowledge  was proved, the fact that the woman did not  feel that her modesty had been outraged would be irrelevant,  for the  necessary ingredient would then have been proved.   The sense of modesty in all women is of course not the same-, it varies  from  woman to woman.  In many  cases,  the  woman’s sense of modesty would not be known to others.  If the  test of the offence was the reaction of the woman, then it  would have to be proved that the offender knew the standard of the modesty  of the woman concerned, as otherwise, it could  not be  proved that he had intended to outrage "her" modesty  or knew  it to be likely that his act would have  that  effect. This  would be impossible to prove in the large majority  of cases.   Hence,  in my opinion, the reaction  of  the  woman would be irrelevant. Intention and knowledge are of course states of mind.   They are  nonetheless facts which can be proved.  They cannot  be proved  by direct evidence.  They have to be  inferred  from the circumstances of each case.  Such an inference, one  way or the other, can only be made if a reasonable man would, on the  facts of the case, make it.  The question in each  case must,  in my opinion, be: will a reasonable man  think  that the act was done with the intention of outraging the modesty of the woman or with the knowledge that it was likely to  do so?  The test of the outrage of modesty must, therefore,  be whether  a  reasonable man will think that the  act  of  the offender  was  intended  to or was known  to  be  likely  to outrage  the  modesty  of the  woman.   In  considering  the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such  as, her station and way of life and the known notions of modesty of such a woman.  The expression "outrage her modesty"  must be  read  with the words "intending to or knowing it  to  be likely that he will".  So read, it would appear that  though the modesty to be considered is of the woman concerned,  the word "her" was not used to indicate her reaction.  Read  all together, the words indicate an act done with the  intention or  knowledge  that  it was likely to  outrage  the  woman’s modesty, the emphasis being on the intention and knowledge.                             289 Another argument used to support the view, that the reaction of  the woman concerned decided the question, was  that  the section  occurred  in  a chapter of the  Code  dealing  with offences affecting human body and not in the chapter dealing with offences relating to decency and morals.  I think  this argument is fallacious.  None of the other offences  against human  body,  which  occur in the same chapter  as  s.  354, depends  on  individual reaction and therefore there  is  no reason  to think that the offence defined in s. 354  depends on  it.   There  is  no  incongruity  in  holding  that  the commission of an offence against human body does not  depend on the reaction of the person against whom it is alleged  to have been committed but on other things. It  will be remembered that the third learned Judge  (Gurdev Singh,  J.) had said that modesty in the section has  to  be understood as an attribute of a human female irrespective of

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the  fact  whether she has developed a sense of  modesty  or not.  This view seems to me to be erroneous.  In order  that a reasonable man may think that an act was intended or  must be  taken to have been known likely to outrage  modesty,  he has to consider whether the woman concerned had developed  a sense  of  modesty and also the standard  of  that  modesty. Without  an  idea  of these, he cannot  decide  whether  the alleged offender intended to outrage the woman’s modesty  or his act was likely to do so.  I see no reason to think,,  as the  learned  Judge did, that such a view would  defeat  the object of the section.  The learned Judge said that  modesty had  to  be judged by the prevalent notions of  modesty.  If this  is  so,  it  will also have to  be  decided  what  the prevalent  notions of modesty in the society are.   As  such notions  concerning  a  child may be  different  from  those concerning  a woman of mature age, these notions have to  be decided  in each case separately.  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. At  the Bar, instances of various types of women  were  men- tioned.  Reference was made to an imbecile woman, a sleeping woman  who does not wake up, a woman under the influence  of drink  or  anaesthesa, an old woman and the like.   I  would point 290 out    that we are not concerned in this case with  any  such woman.   But as at ’Present advised, I would venture to  say that  I  feet  no difficulty in applying  the  test  of  the outrage of modesty that I hate indicated in this judgment to any  of  these cases with a satisfactory result.  If  it  is proved that criminal force was used on a sleeping woman with intent  to outrage her modesty, then the fact that she  does not  wake  up nor feel that her modesty  had  been  outraged would  be  no  defence to the person  doing  the  act.   The woman’s  reaction would be irrelevant in deciding the  ques- tion of guilt. Before  concluding, I may point out that the respondent  had been  convicted by the trial court under s. 323 of the  Code for the Injury caused to the child and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000 /  with a further  period of imprisonment for three months in  default of  payment of the fine.  That sentence has been  maintained by  the  High  Court  and as there  was  no  appeal  by  the respondent to this Court, that sentence stands. I would, for these reasons, dismiss the appeal. Mudholkar,  J.  It has been found as a fact  by  the  courts below that the respondent had caused injuries to the  vagina of a seven and a half month old child by fingering.  He  has been  held guilty of an offence under s. 323,  Indian  Penal Code.   The  contention on behalf of the State  who  is  the appel lant  before  us  is  that  the  offence  amounts   to outraging  the  modesty of a woman and  is  thus  punishable

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under s. 354, Indian Penal Code.  The learned Sessions Judge and  two of the three learned Judges of the High  Court  who heard the appeal against the decision of the Sessions  Judge were  of  the view that a child seven and a half  month  old being incapable of having a developed sense of modesty,  the offence was not punishable under s. 354.  The third  learned Judge,  Gurdev  Singh, J., however, took a  different  view. The  learned Judge quoted the meaning of the word  "modesty" given in the Oxford English Dictionary (1933 Edn.)-which is, "womanly  propriety  of behaviour,  scrupulous  chastity  of thought,  speech  and conduct (in men or women)  reserve  or sense  of  shame  proceeding from  instinctive  aversion  to impure or coarse suggestions"-and observed: "This  obviously does  not  refer to a particular woman but to  the  accepted notions  of  womanly behaviour and conduct.  It is  in  this sense that the modesty appears to have been used in  section 354  of  the  Indian Penal Code".  The  learned  Judge  then referred to s. 509 of the Penal Code in which also the  word "modesty" appears and then proceeded to say:               "The  object of this provision seems  to  have               been   to  protect  women   against   indecent               behaviour  of  others which  is  offensive  to               morality.  The offences created by section 354               and section 509 of the Indian’ Penal Code  are               as much in the               291               interest  of  the women concerned  as  in  the               interest   of  public  morality   and   decent               behaviour.    These  offences  are  not   only               offences  against the individual  but  against               public  morals and society as well,  and  that               object  can  be  achieved  only  if  the  word               "modesty" is considered to be an attribute  of               a  human female irrespective of  fact  whether               the  female  concerned has  developed,  enough               understanding  as to appreciate the nature  of               the act or to realise that it is offensive  to               decent female behaviour or sense of  propriety               concerning  the  relations of  a  female  with               others". S.   B.  Capoor  J., one- of the other two  Judges,  on  the other hand referred with approval to, the following, passage from the,judgment of Jack J., in Soko v. Emperor(1):               "Under  section 354 it must be shown that  the               assault  was  made intending  to  outrage  or-               knowing  it  to be, likely to  outrage  the               modesty  of  the girl.  It is  urged  for  the               petitioner that the conduct of the girl  shows               that  in  fact her modesty was  not  outraged.               There  is  no  suggestion that  she  had:  any               hesitation in telling her mother exactly  what               had happened.  In, the circumstances, I  think               that  it  is, therefore’ doubtful  whether  in               fact the modesty of the girl was outraged He  also  referred, to two other decisions  in  Mt.   Champa Pasin & Ors. v. Emperor(1) and Girdham Gopal v. State(1) and took the view that. the authorities do, not support the view that  in  construing s.- 354, I.P.C. it,  is  irrelevant  to consider  the.  age, physical condition  or  the  subjective attitude  of  the woman against whom the  assault  has  been committed or the criminal force used.  The third Judge Mehar Singh  J."  in his judgment referring the case to  a  larger bench has quoted the following passage from Dr. Gaur’s Penal Law of India, 7th Edn., Vol. 3, p. 1744:               " Ordinarily, then, women who are likely to be

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             made victims of this offence are those who are               young and who are old enough to feel the sense               of.  modesty  and  the  effect  of  the   acts               directed against it.  But it does not  deprive               others of the protection’ from the licence  of               man,  provided  their  sense  of  modesty   is               sufficiently developed". and observed that the opinion of the learned author tends to agree, with  the dictum of Jack J., in Soko’s case(1). The  respondent before us was unrepresented and  considering the importance of the, question we had, requested- Mr. A. S. R. Chari to, assist us by appearing amicus curiae.  He  drew our attention to the fact that, the Sexual Offences Act,  19 56  (4 & 5 Eliz. 2 c. 69) enacted by the British  Parliament has  used  much wider-language in s. 14  which,  deals  with indecent assault on (1) A.I.R. 1933 Cal, 142. (3) A.I.R. 1953 M.B. 147. (2) A.I.R. 1928 Patna 326, 292 women than that used in s. 354, I.P.C. He also said that  in one sense s. 354 can also be said to be wider than S. 14  of the  British  Act  in  that it is  not  confined  to  sexual offences  which is qruite correct.  The two  provisions  run thus:- Section 14 of the Sexual Offences Act, 1956:               "Indecent  assault  on a woman-(1)  It  is  an               offence, subject to the exception mentioned in               sub-section  (3) of this section for a  person               to make an indecent assault on a woman.               (2)   A  girl under the age of sixteen  cannot               in law give any consent which would prevent an               act being an assault for the purposes of  this               section.               (3)   Where   a  marriage  is  invalid   under               section  two  of the Marriage  Act,  1949,  or               section  one of the Age of Marriage Act,  1929               (the  wife  being  a girl  under  the  age  of               sixteen),  the  invalidity does not  make  the               husband  guilty  of  any  offence  under  this               section by reason of her incapacity to consent               while under that age, if he believes her to be               his  wife  and has reasonable  cause  for  the               belief".               (4)   A woman who is a defective cannot in law               give  any consent which would prevent  an  act               being  an  assault for the  purposes  of  this               section, but a person is only to be treated as               guilty  of an indecent assault on a  defective               by  reason of that incapacity to  consent,  if               that person knew or had reason to suspect  her               to be a defective".               Section  354  of the Indian Panel  Code  reads               thus:               "Assault  or  criminal  force  to  woman  with               intent to outrage her modesty-Whoever assaults               or uses criminal force to any woman, intending               to outrage or knowing it to be likely that  he               will  thereby  outrage her modesty,  shall  be               punished    with   imprisonment   of    either               description for a term which may extend to two               years, or with fine, or with both". What  is  made  an offence under s. 14 is  the  act  of  the culprit  irrespective  of its reaction on  the  woman.   The question is whether under S. 354 the position is  different.

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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 herself.  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 women when such a woman  is sleeping  and  did  not wake up or is  under  anesthesia  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                             293  herself  felt that it outraged her modesty?  Again, if  the sole  test  to  be   applied  is  the  women’s  reaction  to 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.  What other kind of acts  will also  fall  within it is not a matter for  consideration  in this case. In  this case the action of Major Singh in interfering  With the vagina of the child was deliberate and he must be deemed to   have  intended  to  outrage  her  modesty.   I   would, therefore,  allow  the appeal, alter the conviction  of  the respondent  to  one  under  3. 354,  I.P.C.  and  award  him rigorous  imprisonment to a term of two years and a fine  of Rs.  1,000/-  and  in default rigorous  imprisonment  for  a period  of  six months.  Out of the fine, if  realised,  Rs. 5001- shall be paid as compensation to the child. Bachawat,  L  Section 10 of the Indian Penal  Code  explains that  "woman" denotes a female human being of any age.   The expression "woman" is used in s. 354 in conformity with this explanation,  see s. 7. The offence punishable under s.  354 is  an assault on or use of criminal force to a  woman  with the intention of outraging her modesty or with the knowledge of  the  likelihood of doing so.  The Code does  not  define "modesty".  What then is a woman’s modesty? I  think that 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 s. 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. A female of tender age stands on a somewhat different  foot- ing.   Her  body  is immature, and  her  sexual  powers  are dormant.  In this case, the victim is a baby seven and  half months old.  She has not yet developed a sense of shame  and has no awareness of sex.  Nevertheless, from her very  birth she possesses the modesty which is the attribute of her sex.

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But  cases  must be rare indeed where the  offender  can  be shown to have acted with the intention of 294 outraging  her  modesty.   Rarely  does  a  normal  man  use criminal force to an infant girl for satisfying his lust.  I regret to say that we have before us one of such rare cases. Let  us  reconstruct the scene.  The time is 9-30  p.m.  The respondent  walks into the room where the baby  is  sleeping and  switches off the light.  He strips himself naked  below the waist and kneels over her.  In this indecent posture  he gives  vent  to  his  unnatural lust,  and  in  the  process ruptures  the hymen and causes a tear 3/4" long  inside  her vagina.   He flees when the mother enters the room and  puts on  the light.  I think he outraged and intended to  outrage whatever modesty the little victim was possessed of, and  he is punishable for the offence under s. 354. I agree with the order proposed by Mudholkar, J.                            ORDER In  view  of  the judgment of the majority,  the  appeal  is allowed, the conviction of the respondent is altered to  one under S. 354 I.P.C., and he is awarded rigorous imprisonment for  a term of two years and a fine of Rs. 1,000/-,  and  in default,  rigorous imprisonment for a period of six  months. Out  of  the fine, if realised, Rs. 500/- shall be  paid  as compensation to the child.                             295