STATE OF PUNJAB Vs. MAJOR SINGH

JUDGEMENT

(1.) 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 anti the third answered it in the affirmative. Hence this appeal by the State.

(2.) It would be convenient to set out the section at once.

(3.) "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 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 behaviour 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. But I do not think that there is anything in them in conflict with what I propose to say in this judgment.