The intent to outrage modesty, demonstrated through deceitful conduct, substantiates conviction under Section 354 IPC, particularly in cases involving minor victims.

JUDGMENT :

KAUSHIK GOSWAMI, J.

1. Heard Mr. P. Kataki, learned counsel appearing for the appellant. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor, Assam for the State respondent as well as Mr. A. Botsolum and Mr. P. Baro, learned counsels for the informant.

2. This criminal appeal is directed against the judgment and order dated 14.02.2013 passed by the learned Additional District & Sessions Judge, Kamrup, Rangia in Sessions Case No. 40(K)/2010, whereby the appellant was convicted under Section 354 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- in default of payment of fine, to undergo further simple imprisonment for 2 months.

3. The appellant was initially charged under Sections 376 and 417 IPC , but the learned trial court, not being satisfied that the charge of rape was established beyond reasonable doubt, convicted him under Section 354 .

4. The prosecution case, briefly stated, is that the appellant had been secretly visiting the house of the informant for about a year prior to the incident and developed an illicit relationship with the informant’s sister, a girl aged about 15 years. On the pretext of marrying her, the appellant established physical relations with the victim, as a result of which she became pregnant. When the family confronted the appellant, he absconded from the village, leading to delay in lodging the FIR. On such complaint, an investigation was undertaken, and charge-sheet was filed for the offences under Sections 376 and 417 IPC .

5. The prosecution examined nine witnesses, including the victim (PW-1); her brother/informant (PW-2); her mother (PW-3); neighbors (P.Ws. 4, 5 & 6); the doctor (PW-7) the Investigating Officer (PW-8) and the Magistrate (PW-9), who recorded the 164 CrPC Statement of the victim. Thereafter, all the incriminating materials were put to the appellant under Section 313 Cr.P.C. wherein he generally denied the same and adduced 1 defense witness.

6. The learned trial court found the evidence of the victim consistent and corroborated by the surrounding circumstances, and though it found the proof of penetration insufficient for a conviction under Section 376 IPC , held that the conduct of the accused clearly amounted to an offence under Section 354 .

7. Situated thus, the present appeal has been preferred.

8. Mr. P Kataki, learned counsel for the appellant submits that the age of the victim was not proved by reliable evidence and that the medical opinion assessed the age of the victim to be between 14 to 16 years. Hence, the benefit of the upper margin should be extended to the appellant. He further submits that the sexual relationship was consensual and devoid of any force and the delay in lodging the FIR casts serious doubt on the prosecution case.

9. Mr. P Kataki, learned counsel for the appellant by drawing the attention of the Court to the fact that the incident occurred in the year 2009 and the FIR was lodged on 31.10.2009 and under the IPC post 2013 amendment, under Section 354 , punishment has been stipulated therein as imprisonment for two years or fine or both and submits that since the trial court has sentenced the appellant to undergo two years of rigorous imprisonment, the same is excessive, as at that relevant point of time the maximum sentence to be imposed for offence punishable under was two years or fine.

10. Per contra, Ms. S H Bora, learned APP, Assam, submits that at no point of time the defense had challenged the age of the victim and hence, such belated arguments on the age of