Major Singh Lachhman Singh vs The State on 30 May, 1963

    Major Singh Lachhman Singh vs The State on 30/5/1963

JUDGMENT

   Capoor, J.

   1. The question referred to the Full Bench Is as follows:

     "Whether the appellant having fingered the private parts of Balvinder, a
girl of 71/2 months, causing injury to those parts, has or has not committed an
offence under Section 354 of the Penal Code?"

   2. Section 354 of the Indian Penal Code Is in these words:--

     "Whoever assaults or uses criminal force to any woman, intending to outrage
or knowing it to be likely that he win 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".

   3. The definition of "woman" as given in Section 10 of the Code is as
follows:

     "The word 'woman' denotes a female human being of any 'age."

   4. The use of criminal force per se Is punishable under Section 350 of the
Indian Penal Code and the commission of assault under Section 351, Indian Penal
Code. Section 354 is an aggravated form of assault or the use of criminal force
and the aggravating element consists of the intention of the accused to outrage
the modesty of the woman or his knowledge that he will thereby outrage her
modesty.

   5. As mentioned in the referring order, there are two possible views; one
that irrespective of whether a woman has or has not developed modesty or can
develop modesty, as soon as she is interfered with according to the terms of the
section with the intention or knowledge laid down in it, the offence under this
section is made out; two, that this section has only reference to a woman who
has developed a sense of modesty.

   6. The word "modesty" Is not defined in the Indian Penal Code. The Shorter
Oxford English Dictionary (Third Edition) defines the word "modest" In relation
to woman as follows: "Decorous in manner and conduct; not forward or lewd; shame
fast" Hence (in later use also of men) scrupulously chaste. "Modesty" Is defined
as the quality of being modest, and in relation to woman, "womanly propriety of
behaviour; scrupulous chastity of thought, speech and conduct". Webster's New
International Dictionary of the English Language (Second Edition) amplifies the
definition of "Modest" by adding "observing the proprieties; free from undue
famsliarity, indecency, or lewdness'.

   "Modesty", therefore, has some relation to the sense of propriety of
behaviour in relation to the woman against whom the offence is said to have been
committed. In addition, therefore, to the intention or the knowledge of the
accused person of which the section speaks, there must, in my view, be not
merely the physical act of the accused, that is, assault or the use of the
criminal force, but a subjective element so far as the woman against whom the
assault is committed or the criminal force used. This result appears to follow
in consequence of the use of the words "outrage her modesty" in Section 354 of
the Code and the concept of modesty as given above.

   7. Now, so far as the girl of the age of 71/2 months is concerned, she is
physically incapable of having any sense of modesty or propriety of behaviour,
and all that can be said is that if she was sufficiently grown-up to have
developed such a sense, the act of the accused would have outraged her modesty.
It does not appear to me to be open to extend in this sense the scope of Section
354 and it appears to be a misnomer to talk of sense of modesty in connection
with an infant girl of the age of 71/2 months.

   8. The decided cases, which the counsel for the parties cited, are few in
number and not really helpful. The earliest is Emperor v. Tatia Mahadev, 14 Bom
LR 961. In that case, Chandribai, a girl of 6 years of age, lived with her
parents in a room on the first floor of a chawl in Bombay. The accused, who
lived on the second floor, took the girl to his room, made her lie down and lay
on her. Immediately the girl screamed and ran away. She reported the matter to
her mother. The accused was charged with an offence punishable under Section 354
of the Indian Penal Code. The trying Magistrate altered the charge to one under
Section 352 and convicted the accused under the alternate charge holding that
"the girl was only six years old and her modesty could hardly be outraged".
Notice was Issued to the accused to show cause why the sentence passed upon him
be not enhanced.

   The learned Judge, after referring to the definition of "woman" under Section
10 of the Indian Penal Code, pointed out that for the purposes of Section 354,
the girl Chandiribai was a woman within that section. From the fact that the
girl screamed and ran away when the accused began his assault, upon her, the
learned Judge came to the conclusion that this action of hers was a clear
indication that she felt her modesty to be outraged by the conduct of the
accused. The question, therefore, whether the offence came within the ambit of
Section 354, was decided not upon the abstract proposition that Chandribai was a
woman as defined In Section 10, but the learned Judge treated the question as to
whether her modesty was outraged or not, as a question of fact. This I consider
to be the proper approach to the matter.

   9. The next case to which reference was made by Mr. V. K. Ranade on behalf of
the convict in the present case was Mt. Champa Pasin v. Emperor, AIR 1928 Pat
326. Macpherson J. with whom Adami J. agreed, observed at page 332 that the
incidents and the conduct of the prosecutrix were clear indications that she
either had no modesty to mention or that it was not such as would be outraged by
any of the acts which were attributed to the male accused persons. The
prosecutrix in that case was a grown-up woman and the above observations, which
again hinged on the evidence, are not relevant for deciding the question
referred to the full Bench.

   10. The next case is Soko v. Emperor, AIR 1933 Cal 142, the facts ef which
have been detailed in the referring order also. The girl against whom the
offence was committed was some five years of age and while she was playing the
accused aged 50 put his finger into her private parts and caused a mark on them.
This was noticed by her mother when she was bathing the child and on being
questioned the child told her that it had been caused by the accused. Jack j.
observed-

     "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 nad happened. In the circumstances, I think that
it is, therefore, doubtful whether in fact the modesty of the girl was outraged.
He accordingly altered the conviction from one under Section 354, Indian Penal
Code, to Section 323, Indian Penal Code.

   The other learned Judge M. C. Ghose J. considered that on the facts as found
by the Magistrate, Section 354, Indian Penal Code, would apply. He went on to
remark

     "the learned Advocate has been unable to show any authority for his
contention that a man who puts his finger into the private parts of a girl of
51/2 years of age is not guilty under Section 354, but is guilty under Section
352, Indian Penal Code, inasmuch as she has not developed a sense of modesty. I
am of the opinion that such action on the part of a man as has been committed
here would tend to destroy the formation of a sense of modesty in the gin and
for lack of any authority I cannot agree that the case does not come under
Section 354, Indian Penal Code." Having regard to the circumstances the
sentence, which was six months' rigorous imprisonment, was maintained.

   11. Now, according to the view viz. that irrespective of whether a woman has
or has not developed modesty or can develop modesty, as soon as she is
interfered with according to the terms of the section with the intention or
knowledge laid down in it, the offence under the section was made out, both the
learned Judges would be wrong. Jack J. treated the question as one of fact.
Since the girl had no hesitaion in telling her mother what had happened, he was
of the opinion that it was doubtful if in fact the modesty of the girl was
outraged. M. C. Ghose J. was of the contrary opinion; the reason given by him
was that the action of the accused would tend to destroy the formation of a
sense of modesty in the girl. Now, so far as the child of 11/2 months is
concerned, there could even be no question of the action of the accused in the
present case tending to destroy the formation of a sense of modesty in her.

   12. The last case cited was Girdhar Gopal v. State, AIR 1953 Madh B

   147. The accused person in that case confined a girl of 9 years in a room,
made her lie on a bed, sat on her and became naked. The girl then shouted and
called her brother. Now, on these facts there could be no doubt that the action
of the accused had outraged the girl's modesty. The learned Judge after
referring to the views of Jack J. in AIR 1933 Cal 142 stated that he was unable
to find himself in agreement with his reasoning. He went on to observe, however,
that it was unnecessary to consider here whether a little girl of five years of
age can be said to have developed a sense of modesty contemplated by Section
354, Indian Penal Code. On that view, there was hardly any question for
expressing dissent from the views of Jack S. in Soko's case, AIR 1933 Cal 142.

   13. There is thus really no support in authority for the view that for an
offence under Section 354, Indian Penal Code, it is altogether 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
question will be one of fact, and having regard to the facts, as stated in the
referring order ana for reasons given in the earlier part of this judgment, I
would answer the question referred in the negative.

   Mehar Sihgh, J.

   14. I agree. The facts are stated in the referring order as also in the
judgment of my learned brother Capoor J. On reconsideration I am of the opinion
that whether a woman has or has developed modesty, as that word is used in
Section 354 of the Penal Code, is a question of fact in each case, and there Is
no abstract conception of modesty that can apply to all cases. The Code not
having defined the word 'modesty', its dictionary meaning has to be taken, and
the dictionary meaning as referred to in the judgment of Capoor J., also leads
to the conclusion that the question whether a woman has or has developed modesty
must in the nature of things be a question of fact in each case, it follows that
a girl of seven-and-a-half months cannot be described either as having modesty
or having developed the same. The answer to the question referred to this Bench
is in the negative that the appellant has not committed an offence under Section
354 of the Penal Code.

   Gurdev Sihgh, J.

   15. I had the advantage of going through the opinion recorded by Capoor J.,
with which my learned brother Mehar Singh J. has concurred, but despite the
great respect that I have for my learned brothers, I do not find it possible to
subscribe to their view.

   16. Detailed facts of the case are given in the order of reference, but I
would briefly recapitulate the same. Shrimati Balbir Kaur, P. W. 2, had gone out
of her house to attend to wedding in the neighbourhood on the Lohri evening of
12th January, 1962, leaving her infant daughter Balvindar, just 71/2 months old,
sleeping. As she returned home at 9-30 P.M. and switched on The light of her bed
room she found the appellant, who was naked below his waist, kneeling over baby
Balvindar. The baby shrieked. The appellant picked up his chadar and ran out.
Injuries were found on the private parts of the baby and she was bleeding, soon
after she was examined by Dr. Amir Kaur, P. W. 1, who found that besides the
rupture of the hymen in the mldline, the baby had a superficial tear J" long
extending from the lower end of the posterior wall of vagina towards the
perineum with bleeding. The appellant, who was prosecuted for rape under Section
376 of the Indian Penal Code, however, completely denied the prosecution
allegations and complained of false implication. This plea of his was, however,
rejected by the learned trial Judge, and though he helt the appellant
responsible for causing injuries to the private parts of Balvindar, he was of
the opinion that they were not the result of thrusting of the male-organ but had
been caused in some other manner. Accordingly, he convicted the appellant under
Section 323 of the Indian Penal Code only sentencing him to rigorous
imprisonment for one year, being of the opinion that the offence did not fall
either under Section 376 or 354 of the Indian Penal Code.

   In appeal against his conviction, while the appellant contended that he
committed no offence, the State in it cross-appeal challenged the order of Major
Singh's acquittal under Section 376 of the Indian Penal Code and confended that
even on the findings recorded by the trial Court, the offence fell either under
Section 376/511 or at least under Section 354 of the Indian Penal Code. On
hearing both these appeals, which were placed before my brother Mehar Singh I
and myself, and reviewing the evidence led in the case we came to the conclusion
that Balvindar had not been subjected to rape nor was an attempt to commit rape
mane on her, and the injuries were caused to her by the appellant by fingering
or in some other similar manner. The question that then arose was whether on
these findings the appellant was guilty merely of an offence under Section 323
of the Indian Penal Code, as held by the trial Court, or could be convicted
under Section 354 of the Indian Penal Code, as contended on behalf of the State.
The few decisions that were cited at the Bar in this connection revealed
conflict of opinion and were not helpful. In view of this conflict and the
importance of the question involved, the following question was referred to this
Full Bench: -

     "Whether the appellant having fingered the private parts of Balvindar, a
girl of 71/2 months, causing injury to those parts, has or has not committed an
offence under Section 354 of the Penal Code?"

   17. My learned brother Capoor J., with whom Mehal Singh J. has concurred, has
returned a negative answer to this question, being of the opinion, that a girl
74 months to was physically incapable of having any sense of modesty of
propriety of behaviour and, accordingly, there could be no question of her
modesty being outraged which is an essential ingredient of the offence under
Section 354 of ths Indian Penal Code.

   Section 354 of the Indian Penal Code enacts:--"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."

   18. "Criminal force" is defined in Section 350 and "assault" in Section 351
of the Indian Penal Code. Use of Criminal force or commission of assault on any
person otherwise than on grave and sudden provocation is punishable under
Section 352 of the Indian Penal Code. Section 353 to 357 of the Indian Penal
Code prescribe punishment for use of criminal force or assault in varying
circumstances which are considered to aggravate the offence. Section 354 of the
Indian Penal Code is one of those provisions and prescribes punishment for use
of criminal force or assault on "any woman". Whereas the punishment provided for
simple use of criminal force or assault under Section 352 of the Indian Penal
Code is imprisonment of either description for a term not exceeding three months
or fine, which may extend to Rs. 500/-, or both, a person convicted under
Section 354 of the Indian Penal Code is liable to be sentenced to imprisonment
of either description upto two years or with fine without any limit, or with
both. This clearly indicates the gravity with which the legislature viewed the
use of criminal force or assault on women.

   19. Assault committed on women may be of various types and of varying
degrees. Some of the other offences against women are rape punishable under
Section 376 of the Indian Penal Code, and attempt to commit rape, which can be
punished under Section 376/511 of the Indian Penal Code. There may be cases, and
frequently there are, where the assault on a woman neither amounts to rape nor
an attempt to commit it. It may still be such an assault as interferes with
modesty of a woman or is considered Indecent, not only according to the
prevalent notions of morality, but also in the eye of law. The provision
contained in Section 354 of the Indian Penal Code is one of the few provisions,
contained in the Indian Penal Code to protect against indecent behaviour or lust
of men. It is also intended in the interest of decency and morals and the value
that the legislature attaches to the protection of women against such assaults
is obvious from the fact that it has prescribed a punishment of imprisonment of
either description for two years and fine without limit as maximum penalty for
such an offence. In construing Section 354 of the Indian Penal Code this object
of the legislature has not to be lost sight of.

   20. For conviction under Section 354 of the Indian Penal Code, what the
prosecution is required to prove is that

     (a) an assault has been committed or criminal force used,

     (b) the object of the assault or criminal force is a woman, and

     (c) that it was with the intention of outraging the modesty of a woman or
knowledge that it was likely that her modesty would be thereby outraged.

   The word "woman" is defined in Section 10 of the Indian Penal Code as
denoting the female human-being of any age. It will be thus obvious that if
assault is committed or criminal force used with the intention or knowledge
specified in this section, the offender would be guilty, irrespective of the age
of the female victim. Once the requisite intention or knowledge relating to the
commission of assault or use of criminal force is proved, the offence will he
complete and there would be no occasion for enquiry into the result of the act
complained of, and, In my opinion, it will not avail the offender to contend
that the victim of his assault was too old or too young to understand the
purport or the significance of his act.

   21. Of course, to bring the offence under Section 354 of the Indian Penal
Code the intention or knowledge specified in this section has to be made out,
and If such intention or knowledge is lacking, even if it is proved that the
assault had been committed or criminal force used and the victim was a woman,
the offence would not be punishable under Section 354 of the Indian Penal Code
but only under Section 352 of the Code.

   22. There is no difficulty about the interpretation of the expression
"outrage her modesty" used in this section. There can however, be no two
opinions that any act which adversely affects the modesty of a woman or is
offensive to the sense of modesty, decency and repugnant to womanly virtues or
propriety of behaviour would be an outrage or insult to the modesty of a woman.

   23. As observed by my learned brother Capoor J, the word "modesty" has not
been defined either in the Indian Penal Code or in any other statute. Its
meaning according to the Shorter Oxford English Dictionary quoted by my learned
brother is "womanly propriety of behaviour, scrupulous chastity of thought,
speech and conduct." Relying upon this, my learned brother has expressed the
opinion that modesty has some relation to the sense of propriety of behaviour in
relation to the woman against whom the offence is said to have been committed
and, accordingly, he has held that in dealing with an offence under Section 354
of the Indian Penal Code, the age, physical condition or the subjective attitude
of the woman against whom the assault has been committed or criminal force used
have to be considered. According to this view, if on account of age or other
infirmity a female is incapable of knowing or realizing what is proper womanly
behaviour or how she is to conduct herse1f, or does not consider the act
complained of as offensive, she cannot be considered to have possessed any
modesty, and no offence of outraging her modesty can, consequently, be committed
qua her, despite the fact that the act complained of may be admittedly repugnant
to morality and decent behaviour towards the weaker sex.

   24. In the Oxford English Dictionary (1933 edition), the meaning of the word
"modesty" is given as

     "womanly propriety of behaviour, scrupulous chastity of thought, speech and
conduct (in men or women) reserve of sense of shame proceeding from instinctive
aversion to impure or coarse suggestions."

   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 word
"modesty" appears to have been used in Section 354 of the Indian Penal Code.

   25. It is significant that in the Indian Penal Code there is no corresponding
provision which punishes an outrage against modesty possessed by men or against
propriety of behaviour or sense of shame proceeding from extinetive (sic)
aversion to impure or coarse suggestions possessed by a man as distinct from a
woman. From this it is obvious that what the legislature had in mind when it
enacted Section 354 of the Indian Penal Code was the protection of an attribute
which was peculiar to women. In my opinion, the word "modesty" in Section 354 of
the Indian Penal Code has not to be interpreted with reference to the particular
victim of the act, but as an attribute associated with female human beings as a
class. It is a virtue which attaches to a female on account of her sex.

   26. A similar expression occurs in Section 509 of the Indian Penal Code,
which runs as follows:

     "Whoever, intending to insult the modesty of any woman, utters any words,
makes any sound or gesture, or exhibits any object, intending that such word or
sound shall be heard, or that such gesture or object shall be seen, by such
woman, or intrudes upon the privacy' of such woman, shall be punished with
simple imprisonment for a term which may extend to one year, or with fine, or
with both."

   27. From the language of this section, it is evident that the mere uttering
of any word, making of any sound or gesture or exhibition of any object to a
female with the Intention that such word or sound shall be heard or such gesture
or object seen by such woman, is punishable irrespective of the fact whether the
woman concerned has or has not heard the words, noticed the gestures or seen the
object exhibited. If that is so, it will be obvious that in order to make out an
offence under Section 509 of the Indian Penal Code it is not necessary to go
into the mental or physical condition of the woman concerned.

   28. If the same words are used at different places in the same enactment,
same meaning has to be given to them unless the context indicates otherwise. If
the dictionary meaning of the word or the meaning which my learned brother
Capoor J. attaches to the word "modesty" is adhered to while Interpreting
Section 509 of the Indian Penal Code, the result will be that making an indecent
gesture or exhibition of a male organ or some lewd object to a child who has not
attained sufficient maturity of thought or understanding would constitute no
offence, whereas similar acts when committed in the presence of a woman of
higher age would be an offence. This in my opinion could not have been the
intention of the legislature in enacting Section 509 of the Indian Penal Code.
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 interest of the woman 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 the fact whether the female concerned, has developed
enough understanding as to appreciate the nature of the act or to realize that
it is offensive to accent, female behaviour or sense of propriety concerning the
relations of a female with others. I can discover no reason for the legislature
confining the protection afforded by Sections 354 and 509 of the Indian Penal
Code only to females. who had attained enough understanding as to realize that
the act complained of was intended to corrupt their morals or is offensive to
propriety of womanly behaviour.

   29. The language of Section 354 of the Indian Penal Code does not indicate
that the legislature wanted to limit its applicability only to females above a
certain age or those who had attained sufficient maturity of thought or
understanding. Could the section have been differently worded if the object of
the legislature was to extend this protection against indecent behaviour to
female human-beings of all ages? In my opinion, the language employed to achieve
this object would still have been the same. Since this is a provision which is
intended to promote morality, there is no Justification for putting narrow
interpretation on it or to limit its applicability only to women of certain
ages, against its clear language. I also find it difficult to believe that while
the legislature was alive to the necessity of affording special protection to
women, traditionally known as the weaker sex, It should have denied this
protection to younger members of the same sex who, on account of their age or
deficient mental development, would not be in a position to defend themselves.
These persons, in fact, need the protection of law the most.

   30. The contention that indecent behaviour towards a child who has not
attained enough maturity of thought or understanding so as to judge of the
nature of the act would not constitute an offence because she has not developed
sense of modesty or shame seems to proceed on the assumption that the result of
the act is relevant to the determination of the question whether an offence
under Section 354 of the Indian Penal Code is or is not committed. This is,
however, not warranted by the provisions of Section 354 of the Indian Penal
Code;

   It is not necessary under this section that the act complained of should have
resulted in outraging or insulting, the modesty of a woman. What is necessary to
prove is that such act has been committed with the intention of outraging the
modesty of a woman or knowing it to be likely that her modesty would be outraged
by such act. It is not necessary for the prosecution to prove that the act
complained of has, in fact, resulted in outraging the modesty of the woman
concerned. If it were otherwise, it will always be necessary for the Court to go
into the question of the mental development, character and antecedents of a
victim so as to find out whether she had acquired any sense of modesty, and if
so whether she still possessed It, and whether she had realized the significance
or Import of the act and felt that it was an outrage against her modesty. Such
an enquiry, In my opinion, is excluded by the language of the section Itself.

   If a different interpretation were adopted, then in dealing with an offence
under Section 354 of the Indian PenaI Code, an offender could always put the
prosecution to proof of the fact that the woman concerned had developed a sense
of modesty and was in a position to realize that the intention of the offender
was to outrage her modesty. Similarly, In a prosecution for an offence under
Section 509 of the Indian Penal Code, it will be a good defence for an accused
to urge that the words uttered by him had not been heard or understood by the
female concerned, or that she had not taken exception to the indecent gestures
made to her having failed to realize their significance. In this view of the
matter, the uttering of highly obscene words or use of grossly vulgar language
before a female, who does not understand that particular language, would
constitute no offence. This, in my opinion, is not what the legislature
intended. Both under Sections 354 and 509 of the Indian Penal Code once the act
complained of is said to have teen done with the specified intention or
knowledge, tne Court is not to go further to find out the effect of such an act.
By doing so it will be introducing a fresh element in these sections. If the
extreme view, which is urged by Mr. Ranade on behalf of the appellant, is
adopted, it would mean that even in the case of grown-up women or young girls no
offence under Section 354 of the Indian Penal Code can be committed if the woman
concerned is an idiot, imbecile or mentally deficient. Similarly, interference
with the person of a prostitute or an act like touching her breasts or even her
private parts would not be punishable except as a simple assault under Section
352 of the Indian Penal Code despite the indecency and immorality of behaviour
of the offender.

   31. This, in my opinion, could not have been intended by the legislature.
Under Section 376 of the Indian Penal Code a person who has sexual intercourse
even with a prostitute would be guilty of an offence of rape if he indulges in
sexual intercourse without the consent of that woman, it will not be open to the
offender to say that the woman had ben submitting to others for sexual enjoyment
and even to him previously on payment. I fail to understand when protection
against violation of her person has been extended even to a prostitute under
Section 375 of the Indian Penal code, why a similar protection against assault
or criminal force should not be available to such a woman under Section 354 of
the Indian Penal Code.

   32. Dealing with the case of a prostitute, this is what Gour had to say In
his Commentary on the Penal Law of India (seventh edition) at page 1746:--

     "The question whether this section is equally applicable to unfortunate
women, who live by their immorality, must be answered in the affirmative. For,
they can he no more subjected to the unbridled lust of other persons than
respectable women, and if a person takes indecent liberties with them, he will
be as much punishable as if he had outraged the modesty of a virtuous woman.
But, in me case of such women, the question would be whether what was done was
not done by leave and licence. It is, however, a question of fact, which in no
way affects the law."

   33. This, in my opinion, would be the correct exposition of law. As already
observed, the question is not whether me chastity of a woman who is subjected to
assault or criminal force has in fact been violated, but only of the intention
with which she was subjected to assault or criminal force.

   Assailing the correctness of this view, Mr. Ranade relied upon AIR 1928 Pat
326 where in the head-note it was stated:--

     "Where a woman has no modesty to mention or it is not such as would be
outraged by a person having sexual intercourse with her, the act of a person in
taking her to a room and having intercourse with her, cannot be said to outrage
her modesty."

   34. On going through the body of the judgment, I, how ever, find that this
head-note proceeds upon the following observations of Macpherson J. at page 332
of the report:--

     "With regard to the offence under Section 354, it is only committed when a
person assaults or uses criminal force to a woman intending to outrage or
knowing it to be likely that he will thereby outrage her modesty. To my mind,
the incidents and the conduct of Lakhpatia are clear indications that she either
had no modesty to mention or that it was not such as would be outraged by any of
the acts which are attributed to Wilayat and the other male accused after the
alleged sexual intercourse in the open with Wilayat. Even if she had some
remnants of modesty, the credible evidence in this case, which is meagre, does
not show that it was in any way outraged by the overtures to her."

   35. These observations have, however, to be read in the context in which they
occur, and before they were made the learned Judge had arrived at the positive
finding that Wilayat, the main culprit in the case, had sexual intercourse with
the prostitute concerned "with her full consent, ana she may well have
accompanied him there with a view to it." It is thus obvious that in that case
it had been found, as a fact, that the prostitute was a consenting party to
sexual intercourse, and thus there was no question of any Indecent assault. On
going through the facts of the case, we further find that the learned Judges
rejected the evidence against the other accused who were charged under Section
354 of the Indian Penal Code, as they found that the witnesses did not belong to
a respectable class, and their evidence was replete with discrepancies and
contradictions. In these circumstances, this decision does not at all advance
the appellant's case nor Support, the contention that no offence under Section
354 of the Indian Penal Code can be commuted against a woman of loose moral
character or even a Prostitute.

   36. Mr. Ranade sought support for his argument from AIR 1933 Cal 142, in
which the conviction of an accused who had caused a mark on the private parts of
a girl of 51/2 years by putting a finger in them, recorded by the trial Court
under Section 354 of the Indian Penal Code was altered to Section 323 of the
Indian Penal Code. There was, now ever, a difference of opinion as to the nature
of the offences between the two learned Judges constituting the Division Bench
Jack J., who was of the view that the offence did not fall under Section 354 of
the Indian Penal Code, expressed himself in the following words:--

     "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 net 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, and that therefore the conviction ought not to
have been under Section 354 of the Indian Penal Code. As a matter of fact, the
charge might have been under Section 323 of the Indian Penal Code."

   37. From these observations It is obvious that the learned Judge did not go
into the question whether the act was committed with the requisite intention or
knowledge stated in Section 354 of the Indian Penal Code, but whether It had
resulted in outraging the modesty of the girl, As I have stated earlier, it is
not the result which determines the offence but what is relevant is the
intention or the knowledge with which it is committed in dealing with a Charge
under Section 354 of the Indian Penal Code, and, if I may say so with respect,
the approach of Jack J. was not correct. M. C. Ghose J., the other member of the
Division Bench, did not share his opinion that unless the woman in question had
developed a sense of modesty, no offence under Section 354 of the Indian Penal
Code could be committed.

   38. The view expressed by Jack J. in Soko's case AIR 1933 Cal 142 was
dissented from by Dixit J., in AIR 1953 Madh B 147, and he held that the act of
a person who confined a nine-year old girl in a room, made her lie on a bed, and
then sat on her becoming naked, clearly amounted to an offence under Section 354
of the Indian Penal Code. The facts in 14 Bom LR 961 were similar. A girl of six
years was taken by the accused to his room. After making her lie down, he
himself lay on her, but the girl immediately screamed and ran away. The trial
Magistrate acquitted me offender of the charge under Section 354 of the Indian
Penal Code being of the opinion that the girl was too young to understand that
anything wrong was intended, and that when she screamed and ran away, she did so
through fear. In appeal by the Crown, the learned Judges altered the conviction
from Section 352 to Section 354 of the Indian Penal Code. Though they took into
consideration the fact that the girl had screamed and run away, they pointed out
that Section 354 of the Indian Penal Code would be applicable to her, as she was
a woman as defined In Section 10 of that Code, and observed that "there were
many answers to the view of the learned Magistrate that the girl was too young
to have any sense of modesty developed."

   39. Though there is no direct authority on the point the weight of
observations made In the various decisions cited at the Bar is against the
contention urged on behalf of the appellant, and for the reasons recorded above,
my answer to the question referred to this Bench would be in the affirmative.

   40. Order of the Full Bench: The question referred to the Full Bench is
answered in the negative by majority, me case will now be placed before the
Division Bench for decision.