Page No.# 1/12 GAHC010198402023 2026:GAU-AS:14728 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./940/2023 RAJA PRASAD RAY @ RAJA KUMAR PRASAD S/OLT. MAHABIR PRASAD R/O 62 A, 2ND FLOOR, MILANPUR, P.P. ROAD, REHABARI, GUWAHATI- 781008, P.S. PALTAN BAZAAR DIST. KAMRUP (M) ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:ANU NEDU D/O RAMPOI NEDU PRESENT ADDRESS- R/O HENGRABARI KALIMANDIR GANESHGURI P.O./P.S. DISPUR DIST. KAMRUP (M) ASSAM PIN-781036 PERMANENT ADDRESS- NEERJULI ITANAGAR DIST. PAPUMPARE ARUNACHAL PRADESH PIN-79110 Page No.# 2/12 BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN Advocate for the petitioner(s): Ms. J. Paul, Advocate Ms. S Bhowmick, Advocate Advocate for the respondent(s): Mr. B. Sharma, APP Date on which judgment was reserved :NA Date of pronouncement of judgment :01.10.2026 Whether the pronouncement is of the : operative part of the judgment? :NA Whether the full judgment has been :Yes pronounced? JUDGMENT AND ORDER (ORAL) (Shamima Jahan, J.) By this application filed under section 482 of CrPC, the petitioner has prayed for quashing and setting aside of the Sessions Case being Sessions Case No. 218/2021 pending before the Court of Sessions Judge (FTC) No. 4, Kamrup(M) at Guwahati. The petitioner has also challenged the order dated 18.12.2021 passed in the aforesaid Sessions Case by which cognizance of offence under Section 376 of IPC was taken against the petitioner. 2. The case of the petitioner is that on 26.11.2020, one FIR was lodged Page No.# 3/12 against the petitioner by the victim stating inter alia that the victim was in love with the petitioner since 2017 and that they shared a rented room at Guwahati. She further stated that during March, 2020due to advent of Covid, petitioner took all his belongings to his residence and that she also had to leave for her own residence but she being not supported by her family members, could not stay at her parent’s place and stayed at a separate place. She thereafter stated that in the month of September, she came back to Guwahati and that she and the petitioner against started residing together in a rented house. She also stated that she became pregnant two or three times and when the FIR was lodged, she was again pregnant but the petitioner denying his fatherhood had asked for a DNA test. 3. The police on receipt of the ejahar registered the case under Section 376/406 of the IPC and on completion of the investigation submitted charge sheet against the petitioner under the same sections as mentioned above on the ground that prima facie case was established against him. The said charge sheet was submitted before the concerned Court and thereafter, the Court of Sessions Judge, Kamrup(M), Guwahati by order dated 18.12.2021 framed charge against the petitioner under Section 376 IPC and by reading over the charge, explained the same to the petitioner, to which the petitioner pleaded not guilty and claimed to be tried. The learned Court passed the order upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the learned Counsel for both the petitioner and the prosecution. The learned Court expressed the opinion that there is ground for presuming that the petitioner had committed the offence under Section 376 IPC. It is this order along with the proceedings of the Sessions Case, which is put to challenge by the petitioner in this criminal petition. Page No.# 4/12 4. The learned Counsel for the petitioner submits that the charge framing order should be based on the documents submitted by the prosecution which includes the statement of witnesses recorded by the police, along with other documents on record. She stated that the victim in her statement before the Police had stated that she and the petitioner had stayed together in a rented room in Guwahati as husband and wife and that she got pregnant. The learned Counsel submits that nowhere in the statement of the victim, the offence of rape could be seen or established having been committed by the petitioner. She also placed the statement of other witnesses who had simply stated that the petitioner and the victim lived together in a rented place and they introduced themselves as husband and wife. The learned Counsel had also placed the statement of the victim recorded under Section 164 of the CrPC, wherein she stated in clear terms that she and the petitioner were in a live-in-relationship since 2017 and that they were both engaged in physical relationship and also that she got pregnant out of it. She also stated that after the Covid period was over, she and the petitioner reunited and stayed like a husband and wife and that she again got pregnant. She thereafter stated that in a later point of time, the petitioner distanced himself from her and had abandoned her. The learned Counsel as such submits that from the aforesaid statements, the offence of rape can by no stretch be established and accordingly, she prays for setting aside the Sessions Case as well as the orders passed therein. To substantiate her argument, she relied on the following Judgments ; (a) Ravish Singh Rana Vs. State of Uttarakhand, reported in 2025 0 Supreme (SC) 955, (b) Sonu @ Subash Kumar Vs. State of UP, reported in 2021 0 Page No.# 5/12 Supreme (SC) 182, (c) Shivashankar Vs. State of Karnataka, reported in AIR Online 2018 SC 499. 5. On the other hand, learned APP submitted that both in the FIR as well as in the charge sheet, the allegations are writ large against the petitioner that he subjected the victim to rape. The learned APP also submitted that the statement of the witnesses along with the victim also suggests materials regarding rape committed by the petitioner. 6. I have heard the learned Counsels and have carefully gone through the records. 7. To establish a case for the offence of rape, the ingredients provided under Section 375 of the IPC has to be proved. Section 375 IPC is quoted hereinbelow: “375. Rape.—A man is said to commit "rape" if he— (a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or Page No.# 6/12 (d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will. (Secondly.) — Without her consent. (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora. Page No.# 7/12 Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 8. A bare perusal of the aforesaid section makes it crystal clear that an offence of rape will be established only when the same is committed against the will of the victim or without her consent. It is also provided that the consent of the victim might be there but if the same has been obtained by putting the victim in fear of death or hurt, the consent will not matter. Similarly, even if the consent is there but the same was given by the victim on the belief that she is lawfully married to the person, which the person knows that the same is not the case, the consent again will not be relevant. In the instant case, it is seen that the victim herself stated that there was a love relationship between her and the petitioner and that they were living as husband and wife in a live-in-relationship in a rented room. 9. In the FIR, the victim stated in clear terms that she has been living in Guwahati since 2017 and that she is working as a Beautician. She further stated Page No.# 8/12 that she got introduced with the petitioner and developed a relationship with him and started living together since the year 2018 and that the petitioner proposed her for marriage, to which she agreed and that in the year 2018 she got pregnant which was aborted by the petitioner through medication. She again stated that she became pregnant and the same was again aborted. She thereafter stated that she told the petitioner to marry her but he postponed and that during the time of Covid, she went to Arunachal Pradesh and that petitioner also went to his residence. She thereafter stated that after the lockdown period was over, both of them again started staying in a room together as husband and wife and that again she got pregnant. This shows that the petitioner and the victim entered into a physical relationship after they got into a love relationship. There is nothing in the said FIR suggesting in the slightest that the physical relationship was entered into by the victim without her will or without her consent or that with her consent which was obtained for fear of death or hurt or due to some misconception. 10. The victim in her statement before the Police recorded under Section 161 of the CrPC, also stated the same facts as she had stated in the FIR to the effect that she and the petitioner resided in a live-in together relationship and that the petitioner proposed her for marriage to which she agreed and that later she became pregnant. Similar statement to the effect that she and the petitioner again started living together as husband and wife after coming back from their respective residences on conclusion of the Covid period was also stated therein. She however did not state in this statement that petitioner postponed the marriage with her or he asked for a DNA test. These statements also do not reflect the ingredients of Section 375 of the IPC. Page No.# 9/12 11. Since framing of charge is on the basis of all the materials collected by the police during the investigation, the statement made by other witnesses may also be looked into. Another tenant living by the side of the room where petitioner and the victim stayed, was examined by the police and he stated that the victim and the petitioner lived together in the rented room after introducing themselves as husband and wife. He also stated that both the petitioner and the victim left the room during the Covid period and that later he came to know that they lived together in a rented room at a different place. 12. Another witness who is the friend of the victim stated that the petitioner comes to her room where the victim also stays and stays with the victim for the whole day and that the victim got pregnant and that the petitioner started having a relationship with some other woman. 13. The owner of the house where the petitioner and the victim stayed on rent was also examined and he stated before the police that victim and the petitioner came to him and introduced themselves as husband and wife and started living in his rented premises. He thereafter stated that during the Covid time, both the victim and the petitioner left his room. He further reiterated that petitioner and the victim introduced themselves as married couple, at the time of taking the room on rent and that they stayed there for three years and that his family members also knew the said facts. However, he later stated that he heard petitioner treated the victim with cruelty. Nothing in this statement is also suggestive of the view that the offence of rape is meted out. 14. The statement of the victim recorded by the Magistrate under Section 164 of the CrPC also does not show materials establishing the offence of rape. In this statement she stated similarly that they were in a live-in-relationship and Page No.# 10/12 that the victim became pregnant which was aborted and that they again resided together after that. It was also stated that on conclusion of the Covid period, they again came back from their residences and took a room together and stayed as husband and wife. There is further statement therein that family of the petitioner was not agreeable of the marriage although the petitioner wanted to marry her and that slowly the petitioner abandoned her and that she lodged the FIR. 15. On a simple reading of all the statements, shows that the physical relationship entered into by the victim with the petitioner was consensual. There are also no materials to suggest that victim was under some misconception or that the petitioner had given the promise of marriage, which is false from the very inception, due to which the victim entered into physical relationship. There is no iota of evidence/materials to show that the victim had not consented to the physical relationship or that she was subjected to the same against her will. She herself stated in all her statements that she was in relationship with the petitioner and that she stayed together with him in a rented room in a live-in- relationship and also that she entered into physical relationship with him, consequent to which she got pregnant and aborted the child and also that she again started living with him thereafter and got pregnant many times. 16. The word consent has been explained in “explanation 2” appended to Section 375 of the IPC, which states that the same means an unequivocal voluntary agreement when the women by words, gestures or any form of verbal or non-verbal communication, communicates her willingness to participate in the sexual act. In the instant case, it is seen that the victim on her own volition participated in the sexual act with the petitioner. The Supreme Court in its Page No.# 11/12 Judgment rendered in Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in (2019) 18 SCC 91 , had observed as follows: “20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the Accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused and not solely on account of the misconception created by Accused, or where an Accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence Under Section 376 of the Indian Penal Code.” 17. In view of the findings narrated above, this Court therefore quashes the Sessions Case being Sessions Case No. 218/2021 pending before the Sessions Judge, Kamrup(M), Guwahati. This Court also quashes the order dated 18.12.2021 by which charge is framed against the petitioner for the offence under Section 376 IPC along with the other subsequent orders passed in the Page No.# 12/12 above Sessions Case. 18. Petition is disposed of. JUDGE Comparing Assistant