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STATE OF PUNJAB V MAJOR SINGH

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

2013-2014

FINAL DRAFT OF CRIMINAL LAW


CASE COMMENT ON STATE OF PUNJAB V MAJOR SINGH

Submitted for the project work undertaken in the partial fulfillment of B.A. LLB. (Hons.) 5 years integrated course of Dr. RMLNLU Lucknow

Submitted to: Dr. K.A Pandey Asstt. prof.(law)

Submitted by : Choudhary krishna vir singh IVrth semester roll no- 37

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STATE OF PUNJAB V MAJOR SINGH

ACKNOWLEDGEMENT
During the preparation of this project, I was immensely helped by the facilities of Dr.Madhu Limaye library of the college. The corporation which i received from library staff must be acknowledged. Mr K.A. Pandey , our Criminal Law Professor, his charismatic personality and her great knowledge in International law and interesting lectures were the driving force for the completion of this project. I also thank her for suggesting me the project topic { State of Punjab V Major singh} Finally, I would like to thank my friends, classmates and seniors for their valuable suggestion and assistance.

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STATE OF PUNJAB V MAJOR SINGH

Table of Contents
1) Title 2) Citations 3) Bench 4) Abstracts 5) Brief Facts 6) Case History 7) Issues Involved 8) Judgment 9) Outrage her modesty 10) Essence of women modesty 11) Intention 12) Comparisons with laws of England

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STATE OF PUNJAB V MAJOR SINGH

Title: State Of Punjab (Petitioner) vs. Major Singh (Respondent) Citations: AIR1967SC63, 1966 SCR (2) 286 Bench: C.J. AS Sarkar, R.S Bachawat and J.R Mudholkar

Abstracts Sometimes the law which is meant to import justice and fair play to the citizens or people of the country is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it negatives their well established rights in law1 by Justice Faizal Ali and Sabyasachi Mukharjee There are many unfortunate inscidents where modesty of women have been outraged like Girdhar Gopal who was a Pujari of a mandir caught hold of young girl named Saroj (nine years old) took her to his house on the pretext of giving Prasad to her and when she was inside, he closed the door of room, made her lie on a bed, put a covering on her and then sat upon her, became naked and asked Saroj to removed all her clothes. The accused took a girl six year old to his room and made her lie down and he lay on her. "The accused took off a girls clothes, threw her on the ground and then set down beside her2. The petitioner (Bhartu) Cought holds of her, threw her down, put sand in her mouth, got on her chest, and attempted to have intercourse with her3. Let us not forget that these are mere brief trailers only. The real life stories of the women, who has been shamelessly ravished, tortured, insulted, humiliated, degraded and denied even handed justice for centuries, are buried so deep in the graveyards of the patriarchy in conspiracy with its legal-agents that it is next to impossible to unearth and expose the same to the human kind. When all are hand-in-glove, nobody dare to bare and open the cupboards containing the skeletons of self incriminating evidences. Deep rooted gender bias has found transparent expression in judgments with unwarranted and undue sympathy with the offenders while acquitting, reducing the sentence, giving benefit of doubt, releasing on Probation or imposing fine only. .

1 2

Pratibha Rani vs. Suraj Kumar, AIR 1985 S.C.628 at page 630 1912(116)PLR 1912 3 AIR 1933 Lahore 1002

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STATE OF PUNJAB V MAJOR SINGH

Brief Facts It was around 9-30 p.m. Major Singh walked into the room where the baby was sleeping and switched off the light. He stripped himself naked below the waist and knelt over her. In this indecent posture he gave vent to his unnatural lust, and in the process ruptured the hymen and caused a tear 3/4" long inside her vagina with his finger. He ran away when the mother of the baby entered the room and put on the light. She saw blood oozing out of the little girl's private parts. The little girl was only 7.5 months old. Major Singh was caught and prosecuted under Sections 3234 and 3545 of Indian Penal Code. Case History 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. 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 sentence stands.

Issues involved Whether the respondent (Major Singh) 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 What does the expression 'woman' means in the code? At what age do women develop modesty? Whether age, physical condition or the personal attitude of the woman against whom the assault has been committed or the criminal force used is relevant to section 354 of IPC Whether reaction of woman should be considered as decisive factor or not?

Punishment for voluntarily causing hurt.-- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 5 "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".

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STATE OF PUNJAB V MAJOR SINGH

Judgment In the case State of Punjab v. Major Singh, a three judge SC bench decided, injury to vagina of a female child of seven and half months can hold accused guilty of outraging modesty under Section 354. The judge Sarkar, C.J interpreted that an act done with the intention or knowledge that it was likely to outrage the woman's modesty be considered along with females reaction. Females of all age do not possess modesty, which can be outraged and dismissed the appeal. The second judge Mudholkar, quoted modesty as not referring to a particular woman but to the accepted notions of womanly behaviour and society. Whether female has capacity to understand or not is immaterial, allowed the appeal and held conviction under Section 354. As per the third judge Bacbawat, J. the expression "woman" denotes a female human being of any age. The culpable intention to outrage the modesty being the bottom line of the matter and agreed with the order of Mudholkar. In view of the judgment of the majority, the appeal is allowed, the conviction of the respondent is altered to one under Section 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 realized. Rs. 500/- shall be paid as compensation to th0e child. According to Sarkar, C.J it is not in dispute that criminal force6 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 Sections 77 and 108. The difficulty in this case was caused by the words "outrage her modesty". As per Mudholkar J and Bacbawat J essence of women modesty is her sex. They explain that the term women means female human being of any age. They said that Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Here in the current case they believe that 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.

Criminal force is defined in Section 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 7 Every expression which is explained in any part of this Code is used in every part of this Code in conformity with the explanation. 8 The word "man" denotes a male human being of any age; the word "woman" denotes a female human being of any age.

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Outrage her modesty Before proceeding further, let us go through the basic definition of outrage, women and modesty. Section 354 of the Indian Panel Code, 1860 has provided "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". And as per Section 10 of the I. P. C. The word woman denotes a female human being of any age. Whereas "modesty" is not defined in the Indian Penal Code, however it means "womanly propriety of behavior, 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"9

The essence of a woman's modesty is her sex. Justice Mudholkar unhesitatingly declared that Under s. 354 IPC 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. 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". Justice Bachawat with a serious concern and conviction added that 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. The culpable intention is a crux of the matter Five years later Honble Justice Baharul Islam of High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura in Sadananda Borgohain vs. State Held that One of the ingredients of the offence under section 354 is that the accused assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will there by outrage her modesty. If the

Oxford English Dictionary,1933 Edn.

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intention of the accused to outrage the modesty is not proved and the victim is a consenting and voluntary party to the affair, the accused cannot be convicted under section 35410. In fact in the absence of a liberal and expansive definition of modesty and intention of outraging, even Apex court have been trapped in the patriarchal mindset, containing myths about virginity and chastity and see modesty in the colors of moral virtues, while dealing with the age old cases of young/old male offenders. Modesty cannot be interpreted without understanding the social construct and space in which the women are placed and it has to be understood from their point of view, agony and humiliations. Honble Justice S. Shamsul Hasan of Patna High Court invented an another escape route in S. P. Mallik Vs. State and held that merely by putting an hand by an accused on a belly of a female, by itself could not be construed to indicate that accused was using criminal force within the meaning of section 354 for the purpose of committing an offence or injury or annoyance. The learned Judge took the shelter of the judgment of Supreme Court in State of Punjab Vs. Major Singh by quoting a single line that the culpable intention of the accused is a crux of the matter from the judgment. Comparison with laws of England:English laws are very clear. The definition of minor terms such as a penetration, assault, touching etc is provided distinctly. For example a clear definition of touching is provided which says touching includes touching with any part of the body, with anything else, or through anything and in particular includes touching amounting to penetration. Outraging the modesty of woman has been included in Sexual Offences. Separate laws are enacted for Sexual Offences against children below the age of , Causing or inciting a child to avenge in Sexual Activity, Sexual Activity with a mentally disordered person, Sexual Activity at work place, etc are present. English law clearly states harsh punishments for offences by police officers, teachers, doctors, elite officials etc while on duty. There have been cases where Court has awarded damages of $100,000 to $300,000. Very few such provisions have been provided under our laws. Sexual offences against women at workplace are reported in our country too but there is absence of apparent and precise laws except Supreme Courts Vishakha Guidelines11.

Conclusion There is a definite need to bring reforms in Sections 354. A clear and specific explanation of term woman (specifying age, physical and mental condition of woman) should be provided. The term outraging the modesty of woman should be specifically explained. Also a single clear and distinct definition of the term modesty should be followed by the Courts.
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1972 Cri.L.J. 658 A.I.R. 1997 S.C. 3011

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STATE OF PUNJAB V MAJOR SINGH

Offences under both the Sections should be made non-bailable and noncompoundable. As done by State of Orissa, by an Act, 33 the word bailable is substituted by non-bailable under Section 354. The specification of terms of imprisonment for offences committed under these sections is unfair and it should be made flexible looking into the gravity of the case. Precise laws with clarity as in England should be enacted. Bibliography PSA Pillai, Criminal law 10th Edn 2009 Ratan lal Dheeraj lal, Indian Edn. Indian Penal Code 2006

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