2009 CLR 1 229 . 2008 RCR CRIMINAL 3 573 . 2008 SCC ONLINE P&H 681 .

2008 RCR
CRI 3 573 .

Manoj v. State Of Haryana

Punjab & Haryana High Court (May 8, 2008)

CASE NO.

Crl. Appeal No. 214-SB of 1998.

ADVOCATES

For the Appellant :- Mr. S.S. Narula

Advocate.For the Respondent :- Mr. Praduman Yadav
DAG
Haryana.
JUDGES

A.N Jindal, J.

IMPORTANT PARAS

1. 9. Having deliberated over the issue, the provisions of Section 354 IPC, provide for
penalty against the assault or use of criminal force to a woman for outraged her modesty.
The essential ingredients of Section 354 IPC are as under :

2. “(a) that the assault must be on a woman;

SUMMARY

Legal Provision:

Indian Penal Code (IPC)

- Section 354: Assault or use of criminal force against a woman with an intention to
outrage her modesty.
- Section 376: Punishment for rape.
- Section 511: Punishment for attempting to commit offenses punishable with
imprisonment for life or other imprisonments.
- Section 323: Punishment for voluntarily causing hurt.

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Facts:

The accused, Manoj, was charged with attempting to rape a 7-year-old girl.

The prosecutrix testified that the accused inserted his fingers into her private part.

The accused was convicted under Section 376 read with Section 511 IPC and sentenced
to 3 years of rigorous imprisonment and a fine of Rs. 1000/-.

Issues:

Whether the accused's actions constitute an offense under Section 376 read with
Section 511 IPC or under Section 354/323 IPC.

Whether the accused's age at the time of the offense should be considered for
sentencing.

Decision:

The Court found that the accused's actions did not meet the requirements for an offense
under Section 376 read with Section 511 IPC as penetration by the penis is essential for
that offense.

The Court held that the accused's actions amounted to an assault on the modesty of a
woman under Section 354 IPC.

The Court considered the accused's young age and lack of understanding of the
consequences and reduced his sentence to the time already served.

The Court partly accepted the appeal, set aside the previous judgment, and convicted
the appellant under Section 354/323 IPC.

Reasoning:

The Court emphasized that the intention and knowledge of the accused are crucial for
the offense under Section 354 IPC.

The Court noted that the accused's actions, though falling short of attempted rape,
constituted a criminal assault amounting to outrage of modesty under Section 354 IPC.

Considering the accused's age and circumstances, the Court modified the sentence to
time served without altering the fine.

Conclusion:

The Court convicted the appellant under Section 354/323 IPC and modified the
sentence to the time already served without changing the fine.

This case highlights the importance of considering the specific elements of the offense and

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the circumstances of the accused when determining the appropriate charges and
sentencing.

JUDGMENT

A.N Jindal, J. — Attempt to rape upon a 7 years old girl (name not disclosed) at the hands
of the accused-appellant Manoj (herein referred as ‘the accused’) dragged him to the Court
of law, where after a long trial, he earned conviction under Section 376 read with Section
511 IPC, vide judgment dated 2.3.1998 passed by the learned Additional Sessions Judge,
Gurgaon and was slapped with sentence of 3 years rigorous imprisonment and fine of Rs.
1000/-.
2. Ram Shanker, Ahir by caste, a resident of village Kanhai District Gurgaon had a
daughter (name not disclosed being prosecutrix) aged about 7 years. On 24.3.1995, at
about 2.00 p.m she had gone to answer the call of nature in the Gatwar, where she fell prey
in the hands of the accused who tried to commit rape upon her. The screams of the
prosecutrix attracted Omwati wife of Har Pal. At this, the accused fled away towards the
fields. On the basis of the aforesaid statement made by the complainant, a case under
Section 376 read with Section 511 IPC was registered against the accused. Consequently,
it was investigated and ultimately challan was presented in the Court.
On commitment, the accused was charged under Section 376 read with Section 511 IPC
to which he pleaded not guilty and claimed trial.
3. In order to substantiate the charges, the prosecution examined HC Mohan Lal (PW1),
Mul Chand Punia (PW2), Dr. Vandana Narula (PW3), Dr. B.B Aggarwal (PW4),
Prosecutrix (PW5), Ram Shanker complainant (PW6), Dr. K.R Yadav (PW6- A) and ASI
Dharamvir Singh (PW7).
4. When examined under Section 313 Cr.P.C the accused denied all the allegations and
pleaded his false implication due to party faction in the village.
The trial ended in conviction. Hence this appeal. Arguments heard. Record perused.
5. The main question into controversy is whether the accused attempted to commit rape
upon the prosecutrix and under which provisions of law the offence committed by the
accused is punishable. In order to determine the attempt of rape, we need to reproduce the
medical evidence of Dr. Vandana Narula (PW3), who on 24.3.1995 medico- legally
examined the prosecutrix. She observed that her secondary sex characters were not
developed nor there were any axillary or pubic hair present. Regarding menstrual history,
patient had not attained menarche. There was no mark of external injury anywhere on her
body. On local examination, she found some congestion at the intro its outside the hymen
with bleeding point at six and three O'clock position. Tenderness was present. Hymen
appears to be intact and does not admit tip of finger.”
6. The prosecutrix while appearing in the witness box has deposed regarding the factum of
attempt to rape while stating that the accused inserted his fingers in her private part. Now

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the question remains that inserting of the finger in the private part of the girl aged about 7
years amounts to rape, the answer to this finds mentioned in the judgment Masiripamtu
Nukaiah Nukaraju v. State of A P., 2004 (1) RCR (Crl.) 33 (A.P), wherein it was observed
as under :
“28. The evidence of P.W.2 clearly discloses that she was taken forcibly and her clothes
were removed and that the accused inserted his fingers into her vagina forcibly and caused
damage. The said act certainly falls under the offence under Section 354 IPC. Moreover,
the injuries were said to have been caused to the private part of P.W.2 It is contended that
offence at the best falls under Section 324 and not under Section 354 or under Section 376
IPC. I, respectfully disagree with the said contention. For, it has to be seen whether causing
damage to the private part said to endanger the life of a person. Grievous hurt has been
defined under Section 320 IPC. It reads as follows :
“320. Grievous Hurt - The following kinds of hurt only are designated as “grievous”.
Firstly - Emasculation
Secondly - permanent privation of the sight of either eye.
Thirdly - permanent privation of the hearing of either ear.
Fourthly - privation of any member or joint.
Fifthly - destruction or permanent impairing of the powers of any member or joint.
Sixthly - permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be during the
space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.”
7. It would be worth while to mention here that penetration of the penis in the private part
of the girl is essential requirement for completion of the offence under Section 376 IPC
and the diminished gravity of the offence where some attempt has been made by fingers,
certainly may not fall within the purview of Section 376 read with Section 511 IPC. At
the most, it would amount to an assault to womanhood, therefore, the offence would fall
only under Section 354 IPC and if any damage is caused to the vagina then the accused
could be convicted and sentenced for simple or grievous hurt as the case maybe. A similar
point came into consideration before this court in case Nanak Chand v . State of
Haryana , 2006 (1) RCR (Crl .) 14 (P&H), wherein it was observed that in the
circumstances when the accused undressed himself as also the prosecutrix and lay naked
on her and thereafter he fled away on seeing the mother of the prosecutrix, the accused
could be held guilty at the most under Section 354 and 342 IPC and it did not amount to
attempt to rape.
8. Here in this case, the accused having not inserted his private part in the vagina but the
fingers only could hardly be said to have attempted to commit rape.

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The other question raised by the learned counsel for the appellant is that the prosecutrix
being of a very tender age had no modesty to be outraged, therefore, in such
circumstances, no offence under Section 354 IPC is made out.
9. Having deliberated over the issue, the provisions of Section 354 IPC, provide for
penalty against the assault or use of criminal force to a woman for outraged her modesty.
The essential ingredients of Section 354 IPC are as under :
“(a) that the assault must be on a woman;
(b) that the accused must have used criminal force on her; and
(c) that the criminal force must have been used on the woman intending thereby to outrage
her modesty.”
10. Section 10 IPC explains that “woman” means a female human being, of any age having
female characteristics. Expression “woman” as used in Section 354 IPC is in conformity
with this explanation. The offence punishable under Section 354 IPC is an assault or use of
criminal force against a woman with an intention to outrage her modesty. Now the other
question before me is “what amounts to outraging the modesty? Though the word
“modesty” has not been defined in the Indian Penal Code but Shorter Oxford Dictionary,
3rd Edition, defines the word “modesty” in relation to woman as under :
“Decorous in manner and conduct; not forward or lower; share fast; scrupulous chastity.”
11. In other words, modesty is defined as quality of being modest; and in relation to a
woman, womanly propriety of behaviour; scrupulous chastity of thought, speech and
conduct. In order to guilty find the accused of an assault with intent to commit rape, it is
desired from the prosecution that it should establish that when the accused laid hold of the
prosecutrix not only desired to gratify his passions upon her person but that he intended to
do so at all events, and notwithstanding any resistance on her part. The difference between
the offence of attempt to commit rape and indecent assault is that in the case of former,
there could be some action on the part of the accused which would show that he was just
going to have sexual connection with the prosecutrix, but in the later case the accused
intended to or was known to be likely to outrage her modesty short of rape. Thus intention
and knowledge of the accused are the ingredients of the offence and not a woman's feeling.
Earlier view was that in order to make gut a case of outraging the modesty was the reaction
of the woman concerned, but the Apex Court in case State of Punjab v . Major Singh ,
AIR 1967 Supreme Court 63 approved 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. They disapproved the earlier view by observing as under :
“Section 354 speaks of outraging the modesty of a woman and at first blush seems to
require that the outrage must be felt by the victim herself. But such an interpretation would
leave out of the purview of the section assaults not only on girls of tender age but on even
grown up woman when such a woman is sleeping and did not wake up or is under
anesthesia or stupor or is an idiot. It may also perhaps under certain circumstances exclude

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a case where the woman is of depraved moral character. Could it be said that the
legislature intended that the doing of any act to or in the presence of any woman which
according to the common notions of mankind is suggestive of sex, would be outside this
section unless the woman herself felt that it outraged her modesty? Again, if the sole test to
be applied is the woman's reaction to a particular act, would it not be a variable test
depending upon the sensitivity or the upbringing of the woman? These considerations
impel me to reject the test of a woman's individual reaction to the act of the accused. I,
must, however, confess that it would not be easy to lay down a comprehensive test; but
about this much I feel no difficulty. In my judgment 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 this section. What other kind of acts will
also fall within it, is not a matter for consideration in this case.”
12. As a matter of fact, culpable intention of the accused is the crux of the matter. Reaction
of the woman may be relevant but its absence is not always decisive as for example when
the accused with a corrupt mind stealthily touches the body of the woman of too tender
age, and an idiot, deranged, or mentally upset, or a woman under the spell of anesthesia, in
those cases also the offender is punishable under Section 354 IPC.
13. In the present case, immature girl of tender age i.e 7 years old, when had gone to
answer the call of nature, fell prey at the hands of the accused, he picked her up, made her
naked and started fingering in her vagina causing some simple injuries to the hymen,
therefore, in the circumstances, the offence committed by the accused is short of attempt to
rape but shall be taken as criminal assault amounting to outrage the modesty of a woman,
therefore, he has certainly committed an offence under Section 354/323 IPC.
14. The accused was also below 16 years of age, appears to have committed the crime in
the prime of his youth, obviously without knowing consequences of the same. He has also
undergone 23 days of the substantive sentence. He has already suffered a lot due to
pendency of the present case and is a first offender. Under these circumstances, it would be
in the fitness of the things if the sentence is reduced to that already undergone.
15. Consequently, I partly accept the appeal, set aside the impugned judgment, and convict
the appellant under Section 354/323 IPC and sentence awarded to him is modified to that
already undergone by him without alteration in the sentence of fine.

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