M had caused injuries to the vagina of a seven and a half months old child by fingering. He was charged under Sections 323 and 354 of IPC. Is M guilty under Section 323…

Question: M had caused injuries to the vagina of a seven and a half-month-old child by fingering. He was charged under Sections 323 and 354 of IPC. Is M guilty under Section 323 of IPC” Does a female child of seven and a half months possess womanly modesty? S.3-6? [Punjab Civil Services (Judicial) Exam, 2006

Find the answer to the mains question only on Legal Bites. [M had caused injuries to the vagina of a seven and a half months old child by fingering. He was charged under Sections 323 and 354 of IPC. Is M guilty under Section 323…]

Answer

Section 354, IPC makes the offence of causing Assault or criminal force to a woman with intent to outrage her modesty punishable. The reaction of the woman is very relevant in judging as to whether an assault on her amount outraging her modesty, but its absence is not always decisive.

It is, therefore, not always necessary to ascertain that the woman, against whom an indecent assault or criminal force was used, realised the effect of, or reacted to, such an assault or force to hold the person guilty under Section 354.

The facts of the present case relate to the landmark case of State of Punjab v. Major Singh [AIR 1967 SC 63]. The Supreme Court has held that in order to constitute the offence under Section 354, the reaction of the woman concerned is not the test of the offence.

In this case, the accused, Major Singh, had caused injuries to the vagina of a seven and a half months old infant girl by fingering.

He walked into the room where the child was sleeping at 9.30 pm, then after having switched off the lights, he stripped himself naked below the waist, knelt over her and performed indecent acts of unnatural lust on her private part rupturing her hymen and causing a tear 3/4th inch long inside her vagina.

It was argued for him before the lower courts that since Section 354 states that the offender must have ‘outraged her modesty and in this case, since the child concerned had not developed sufficient sex instinct, it could not be said that her modesty was violated.

It was argued that a reasonable man would not say that a female child of seven and a half months had womanly modesty. But this contention, though accepted by the lower courts, was rejected by the Supreme Court.

The accused was held guilty under Section 354, IPC, and sentenced to two years’ rigorous imprisonment and a fine of five hundred rupees, or in default of payment of the fine an additional period of six months’ rigorous imprisonment. Justice Bachawat stated:

“…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 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, 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 anaesthesia, 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 of seven and a 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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