Citations- AIR 1967 SC 63
Bench- A.K. Sarkar, C.J. and J.R. Mudholkar, and R.S. Bachawat, JJ.
Appellant- State of Punjab
Respondent- Major Singh
Court- Supreme Court of India
It has been found as a fact by the courts below that the respondent has caused injuries to the vagina of a seven-and-a-half-month-old baby by fingering. He has been held guilty of an offence under Section 323 of the Indian Penal Code. The contention on behalf of the state, who is the appellant before the court, is that the offence amounts to outraging the modesty of a woman and is thus punishable under Section 354 of the Indian Penal Code. 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.
● In this case, the victim is a baby seven and half months old girl.
● The respondent, Major Singh, at 9:30 pm, 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 ¾” long inside her vagina.
● He flees when the mother enters the room and puts on the light.
● The respondent had been convicted by the trial court under Section 323 of the Code for the injury caused to the child and sentenced to rigorous imprisonment for one year and a fine of Rs 1000 with a further period of imprisonment for three months in default of payment of the fine.
● The sentence has been maintained by the High Court, and as there was no appeal by the respondent to this court, that sentence stands.
● Whether the respondent who caused injury to the private parts of a female child of seven and half months is guilty under Section 354 of the Indian Penal Code.
● Whether modesty in the sector has to be understood as an attribute of a human female irrespective of the fact whether she has developed a sense of modesty or not.
● 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.
● If the sole test to be applied is the woman’s reaction to a particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman?
● In view of the judgement of the majority, the appeal is allowed.
● The conviction of the respondent is altered to one under Section 354 IPC, and he is awarded rigorous imprisonment for a term of two years and a fine of Rs 1000, and in default, rigorous imprisonment for a period of six months.
● Out of the fine, if realized, Rs 500 shall be paid as compensation to the child.
The essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. Nevertheless, from her very birth, she possesses modesty which is the attribute of her sex. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force on her with intent to outrage her modesty commits an offence punishable under Section 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. Nevertheless, the offender is punishable under the section.
This article is written by Kanishk Chopra of National Law University, Delhi.