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:-

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"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". Websters 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/s. 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