State of Punjab V. Major Singh 
INSC 115 (28 April 1966)
28/04/1966 SARKAR, A.K. (CJ) SARKAR, A.K.
(CJ) MUDHOLKAR, J.R.
CITATION: 1967 AIR 63 1966 SCR (2) 286
Indian Penal Code (45 of 1860), s. 354-Scope
of-Relevancy of ago of victim.
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
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]
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
287 A. S. R. Chari, for the respondent.
The following Judgments of the Court were
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
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
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 committed.
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 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
This would be impossible to prove in the
large majority of cases. Hence, in my opinion, the reaction of the woman would
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
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 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
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
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 mentioned. Reference was made to an imbecile woman, a sleeping woman
who does not wake up, a woman under the influence of drink or an aesthesa, 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 question of
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
I would, for these reasons, dismiss the
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 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 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, requestedMr. 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
"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.
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. 5001shall 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 footing. 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.
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
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,
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.