A Baby’s Modesty

A considerable sensation of academic, professional and socio-ethical interest has been evoked by the judgment of the Punjab High Court, Major Singh Lachhman Singh v. The State, AIR 1963 Punj 443 (FB), in which a girl aged only 7 1/2 months was alleged to have been raped by the accused whose conviction under Section 323, I. P. C. by the Trial judge was upheld by the High Court. This is perhaps the worst case that ever came to light in respect of the most fiendish and brutal type of sexual crime, so far as the age of the victim is concerned. The judgment is all the more striking in view of the growing menace of sexual offences including eve-teasing and child-rapes. The cases of child-rapes take place under various circumstances and pretexts like the absence of the other members of the family and the unsuspected familiarity and mixing with children even by strangers. Unless there are some severe injuries, most of these cases cannot be detected at all as the victims themselves are quite innocent, ignorant and incapable of understanding the significance of the incidents. In many cases, again, even when the culprits are detected, no legal action is taken for fear of family scandal. The human brutes who are responsible for perpetrating heinous offences like child-rape should be given deterrent sentences, so that they might serve as a severe warning to the other miscreants. It was rightly observed by their Lordships in the case of Emperor v. Tatia Mahadev, 17 Ind Cas 794 : 113 Cri L J 858 (Bom) ), that “a deterrant sentence ought to be passed In a case when a nun takes advantage of the absence of a girl’s parents to commit an attack upon the defenceless girl.  Facts of the Case
 The facts of the above Punjab High Court case may be briefly stated thus:  Shrimati Balbir Kaur had gone out of her house to attend a wedding in the neighbourhood on the Lohri evening of 12th January, 1962, leaving her daughter Balvinder, just 7 1/2 months old, sleeping. When she came back at, 9-30 P.M. and switched in light of her bedroom, she saw the accused Major Singh, son of Lachman Singh, of village Kairon, District. Amritsar who was then naked below his waist and kneeling over the baby Balvinder, who was shrieking. At the appearance of Balbir Kaur, the accused picked up his chadar and ran away. The baby was found bleeding and injuries wire found in her private parts. Soon after, the Baby was examined by Dr. Amir Kaur who found that besides the rupture of the hymen in the midline, the baby had a superficial tear 3/4” long extending from the lower end of the posterior wall of the vagina towards the perineum with bleeding. The accused was prosecuted for rape under S. 376, I. P. C., but he denied all the allegations and pleaded not guilty contending that he was falsely implicated in the case.  The Decision
 Though the accused was prosecuted under S. 375, I. P. C., the Trial Judge convicted him under S. 323, I. P. C., holding that S. 376, I. P. C. and Section 354, I. P. C. did not apply to this case and sentenced him to one year’s rigorous imprisonment. Section 376, I. P. C. did not apply as the Trial Judge found that there was no rape or penetration of the male organ by the accused who might have caused the injuries on the baby’s private, parts by fingering or otherwise. Section 354, I. P. C. also did not apply according to him as the baby of 7½ months only could not have any modesty as required by the Section. The accused appealed against his conviction under Section 323, I. P. C. and the State also filed an appeal against his acquittal for the offence under Section 376, I. P. C. The contention of the State was that the offence of the accused fell under Section 376/511, I. P. C. (attempted rape) or at least under S. 354, I. P. C.  A Division Bench of the High Court consisting of Mr. Justice Mehar Singh and Mr. Justice Gurdev Singh also agreed with the Trial Judge that the offence was not under Section 376, I. P. C. But there was a difference of opinion between their Lordships regarding the applicability or otherwise of Section 354, I. P. C. According to Mehar Singh J., there could not be any modesty of a girl of 7½ months and hence Section 354, I. P. C. would not apply to this case. According to Gurdev Singh J., Section 354, I. P. C. would apply irrespective of the age of the baby, as she was a woman according to the I. P. C. This question was referred to a Full Bench including the two Judges constituting the Bench and a third Judge, Mr. Justice Capoor. The reference was in these terms.  “Whether the appellant having fingered the private parts of Balvinder, a girl of 7½ months, causing injury to those parts, has or has not committed an offence under Sec. 354, I. P. C.”  In the Full Bench, Capoor and Mehar Singh, JJ. held that a girl aged only 7½ months could not be said to have modesty or have developed it. Hence according to their Lordships, the accused could not be said to have committed an offence under S. 354, I. P. C. Gurdev Singh J. stuck to his original view and differed from his two other brother Judges. This majority view of the Full Bench formed the basis of the judgment of the original Bench which upheld the conviction of the accused under S. 323, I. P. C. rejecting the State appeal to convict the accused under S. 376/511, I. P. C. or under S. 354, I. P. C.  Law Points Involved
 In the instant case, Ss. 323, 354, 376/511 and Section 376, I. P. C. were involved. Section 376, I. P. C. would not apply as according to all the Judges including the Trial Judge, there was no penetration of the accused’s organ into the private parts of the victim. There was also no offence under Section 376/511, I. P. C. (attempted rape) as the accused had finished his part of the act, apparently simply by fingering the private parts of the baby without any actual penetration of his organ or any attempt therefor. This view was mainly based upon the medical evidence given in this case. Section 354, I. P. C. could not apply according to the majority view of the Full Bench, as the girl of 7½ months, could not have or have developed any modesty in terms of the Section. According to them, over and above the intention or knowledge of the accused there must be some subjective element or consciousness about modesty so far as the victim is concerned. Thus eliminating the applicability of the other sections, in the way seen above, the accused was convicted under S. 323, I. P. C. by the Trial Judge which conviction was upheld by the High Court on the basis of the majority view of the, Full Bench.  Comments
 As noticed above, the Full Bench was concerned only with Section 354, I. P. C. Regarding this Section there are two possible views. One of them is 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 committed independent of the question of age, as the word woman includes any female. The other view is that this Section has reference only to a woman who has developed a sense of modesty and thus is of sufficient age for this purpose. Both these views have been very well-argued by their Lordships in support of their respective contentions. The few cases available on the point were scrupulously referred to, closely examined and thoroughly, discussed. In those cases also there was no unanimity. But the present case specially could not be compared with any one of those cases, as none of them was concerning so small a baby as of 7½ months. (8) In absence of any definition of the word modesty in the Indian Penal Code, Capoor J. followed by Mehar Singh, J. accepted the dictionary meaning of the term which in relation to women, means “womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct.” There is no doubt that these attributes cannot be conceived by any stretch of imagination to develop or have developed in a child of 7½ months. But there is something more than the dictionary meaning alone. Law is a social contrivance and a means of social engineering and as such it must be so interpreted that unless there is anything positively to the contrary in the interpretation must prove useful and helpful to the society, the public morals and the ethical values. In the present case, the accused could be convicted under Sec. 323, I. P. C. as there were visible injuries and hurts found on the private parts of the baby. But in case there is no hurt or injury for what offence could the miscreant be convicted and effectively punished specially for outraging the modesty of the women folk? The expression “her modesty” in Sec. 354, I. P. C. does not mean any modesty as conceived or understood necessarily by the victim or any modesty of which she is in variably conscious, but it means the modesty (of any woman of any age, the pronoun “her” having been used for woman used previously in the section), as it is understood by the society from the point of view of public morals, ethical standards and social values or norms in respect of a woman. Acts like fingering the private parts even of a baby can by no means be tolerated or connived at by any civilised society. Hence an’ act which is universally condemnable as heinous should not escape tha severest punishment provided by the law of the land. Thus instead of interpreting the expression “her modesty” as a subjective attribute, it can be reasonably interpreted as her modesty as understood and conceived by the society at large even with reference to a baby. By such an interpretation an offence as in the present case can be covered by Sec. 354, I. P. C. and the purpose of the law vis-a-vis the needs of the society can be better and more effectively served.  The State appeal to convict the accused under Sec. 356/511, I. P. C. if not under Sec. 376, I. P. C. could be decided in its favour in view of the peculiar facts and circumstances of the case. There is no doubt that the accused caused the injuries to the baby. That has been concurrently found by ail the Courts and all the Judges. The accused entered the dwelling room of another person in her absence, at night, and was actually found in a naked condition kneeling over the baby. Over and above these, the physical injuries including rupture of the hymen of the baby and tears in her private parts were there. At the sight of the baby’s mother, the accused ran away, as he could not perceive her approach earlier, in the darkness which was caused by himself for satisfying his fiendish lust by putting off the light in the room. It was also in evidence that the accused came to the baby only when he was sure that the baby was left alone, as the mother was away in a neighbour’s house. So the accused did the thing after deliberation and circumspection and seeing that nobody could be there to resist or recognise him. In view of the above facts, it could be very easily argued that either the accused had already penetrated his organ for sexual intercourse or was making an attempt to do so which was frustrated by the sudden appearance of the baby’s mother. It has to be remembered that for Sec. 376, I. P. C. any penetration, even of the slightest degree — vulval or vaginal — is sufficient. To quote Taylor — “........the degree of penetration is quite immaterial. Though there could not be complete introduction of the adult male organ into the vagina, of a child without rupture or laceration of the soft parts, the absence of such marks would not justify a medical witness in denying the perpetration of the crime since the law does not require proof either of a complete or of a violent introduction. Penetration of the vulva is sufficient. In the absence of proof of penetration, the prisoner may be convicted of the attempt.......Vulval penetration, whether with or without violence is as much rape as vaginal penetration” (Taylor’s Principles and Practice of Medical Jurisprudence, 11th Ed. Vol. II, p. 65). There could not be any other hypothesis as to why the accused was kneeling over the baby in a naked condition. For the purpose of fingering, it was not necessary to be naked or kneel over the baby. The medical evidence also is not against this view. On the contrary, the rupture of the hymen is a strong and positive indication, specially in this case in view of the attending circumstances that the male organ of the accused was penetrated however little. Proper emphasis must be laid on the circumstances specially when there was no eye-witness and the baby was unable to indicate anything. The Lady Doctor who examined the baby almost immediately after the occurrence opined that the injury could be done by the penetration of the male organ.  Subsequently, of course, (perhaps on a suggestion made to her), she said that it could be caused by fingering also. As viewed above, the accused must have gone to the bed of the baby with the intention of rape rather than fingering alone. The medical opinion that it could be caused by fingering also does not totally and ipso facto exclude the possibility of rape in view of the peculiar circumstances of this particular case. That the injuries could be caused by other means also is only an abstract view or opinion which has got to be considered in the objective context of the particular case. Again the medical opinion that the accused also must have some injuries in his organ as well in a case like this is not absolutely authoritative. There are cases in which there was no injury to the penis of the accused, although there were lacerations of the hymen, posterior commissure, perineum and even the vaginal walls of the victim (Modi’s Medical Jurisprudence and Toxicology, 11th Ed. p. 325). Lastly, the medical opinion was that the baby would have died, had there been any penetration for committing rape. Here one caution has to be remembered. It might be true that the baby could have died. But that would be the case only when the penetration was violent and complete. In the very nature of the situation, the accused could not be thinking of maximum or complete penetration; he was only trying as to how far it could be physically possible to commit the offence of rape with respect to such a baby. Specially in case of Sec. 376/511, I. P. C., the apprehended death of the baby was no consideration at all.  In this context, a reference may be made to the observations of their Lordships in the case of Emperor v. Kasamalli, AIR. 1942 Bom 71, 78 : (43 Cri LJ 529, 536) that where the complaint is that a girl was abducted and ravished and this is supported by medical evidence of ruptured hymen, the charge should not be entered under Sec. 323, I. P. C. “In any case”, continue their Lordships, “when a charge of this sort is made and supported by medical evidence of ruptured hymen, Sec. 323, I. P. C. seems a peculiar section to name”.

Author Name: Dr. U. O. Sarkar