Gauhati High Court
Crl.Pet./201/2024 on 24 June, 2025
GAHC010035602024
2025:GAU-AS:8624
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.PET. NO.201 OF 2024
Sri Pritam Sawashi,
S/o- Sri Suresh Sawashi,
R/o- Naharani Tea Estate,
P.O. & P.S- Rangapara,
Dist- Sonitpur, Assam.
.......Petitioner
-Versus-
1. Priyanka Gorait,
D/o- Sri Butu Gorait,
R/o- Manijarani,
P.O- Manijarani,
P.S.- Tezpur,
Dist- Sonitpur, Assam.
PIN-784025.
2. The State of Assam,
represented by the Public Prosecutor,
Assam at Gauhati High Court.
.......Respondents
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-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner : Mr. M. Ali, Advocate.
For the Respondent(s) : Mr. Sarfaraz Nawaz, Amicus Curiae,
representing respondent No.1
: Mr. D. P. Goswami, Additional Public
Prosecutor, Assam.
Date of Hearing : 24.06.2025.
Date of Judgment : 24.06.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. M. Ali, learned Counsel appearing for
the petitioner. Also heard Mr. Sarfaraz Nawaz, learned
Amicus Curiae, appearing for the respondent
No.1/informant and Mr. D. P. Goswami, learned Additional
Public Prosecutor for the State respondent.
2. This application is filed under Section 482 of the
Criminal Procedure Code, 1973 (hereinafter referred to as
the “Cr.P.C.”) seeking quashing of the F.I.R., registered as
Tezpur P.S. Case No. 949/2022 dated 02.09.2022,
under Sections 420/376 of the Indian Penal Code
(hereinafter referred to as “IPC“) and the Charge-Sheet
No.1038/2022, dated 30.12.2022, pending before the
learned Chief Judicial Magistrate, Sonitpur, Tezpur.
3. The brief facts of the case are that the
respondent No.1/informant lodged an ejahar before the In-
Charge of Bebejia Police Outpost on 02.09.2022, alleging,
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inter alia, that on 13.08.2022 at about 8 am, while she was
going to Bihuguri H.S. School from her house, she met the
petitioner/accused at Bandarmari. The petitioner/accused
then forcefully lifted her on his bike and took her to Tezpur
town, where with an inducement of marriage, he raped her
forcefully in a hotel room. Thereafter, at about 7 pm, the
petitioner/accused dropped the respondent No.1/informant
in front of her sister’s house at Ghoramari Bamungola and
fled away.
4. On receipt of the ejahar, the In-Charge of Bebejia
Police Outpost made a G.D. Entry vide GDE No.21, dated
02.09.2022, and forwarded the same to the Officer-in-
Charge of Tezpur Police Station. Accordingly, Officer-in-
Charge of Tezpur Police Station registered a case vide
Tezpur P.S. Case No.949/2022, under Sections 420/376 of
the IPC. After registration, police started investigation and
on completion of investigation, the Officer-in-Charge of
Tezpur Police Station submitted Charge-Sheet against the
petitioner/accused before the Court of learned Chief
Judicial Magistrate, Sonitpur, Tezpur being Charge-Sheet
No.1038/2022 dated 30.12.2022 under Sections 376/420
of the IPC. Aggrieved by the aforesaid, the present criminal
petition has been filed seeking quashing of the F.I.R., and
the Charge-Sheet.
5. Mr. M. Ali, learned counsel appearing for the
petitioner, submits that the allegation of sex is consensual,
and therefore, no offence under Section 376 of the IPC is
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made out. He further relies upon the decision of the Apex
Court in the case of: –
(i) Shiv Pratap Singh Rana v. State of Madhya
Pradesh & Anr, in Criminal Appeal No. 1552 of 2023,
(ii) Mandar Deepak Pawar v. The State of
Maharashtra & Anr, in Criminal Appeal No(S).
442/2022.
6. Per contra, Mr. Sarfaraz Nawaz, learned Amicus
Curiae appearing for the respondent No.1/informant,
opposes the prayers made in the criminal petition and
submits that whether the sexual act was consensual or not
is a matter of trial.
7. I have given my prudent consideration to the
argument advanced by the learned counsels for both the
contending parties, and also perused the material available
on record. I have also considered the citation submitted at
the bar.
8. This criminal petition being filed seeking quashing
of the F.I.R., and the Charge-Sheet, let me first analyze
the allegations made out in the F.I.R as whether the same
if considered in the face value, the criminal offence is made
out or not. The F.I.R. in question reads as hereunder: –
“To,
The In-Charge of Bebejia Police Post, Sonitpur,
Tezpur.
Date:02.09.2022
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Subject: Ejahar.
Sir,
With due respect, I would like to inform you
that, on 13-08-2022, on way to Bihuguri H.S
School, Sri Pritam Sawasi, S/O-Suresh Sawasi of
Nahoroni Tea Estate met me at Badormari at
around 8 am, forcefully lift me on his motorcycle
and took me to Tezpur. Thereafter, he raped me in
a hotel room with an enticement of marriage. After
that at 7 PM he dropped me at my elder sister’s
house at Gurahmari Bamungaon and he fled
away.
After knowing about the incident by the family
members, my uncle took me to house. I afraid to
tell about the incident to family members, but
worrying about my future, I have stated the
incident to my family members. Now, it is my
humble request to you sir to do justice with me.
Yours faithfully
Name- Prianka Gorait
D/o- Sri Butu Gorait
R/o- Manijaroni
P.O- Manijaroni
P.S- Bebejiya O/P
Dist- Lakhimpur (Assam)”
9. Reading the aforesaid F.I.R., it is apparent that
the informant has clearly alleged that on 13.08.2022, while
she was on her way to Bihuguri H.S. School, the
petitioner/accused met her at around 8 am and forcefully
lifted her onto his motorcycle and took her to Tezpur town.
It further appears that the informant has also categorically
alleged that the petitioner/accused raped her in a hotel
room with an enticement of marriage, and thereafter he
dropped her at her elder sister’s house and fled away. The
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aforesaid allegation, on the face of it, appears to constitute
a criminal offence.
10. Apt also to refer to Section 375 of the IPC, which
reads as hereunder: –
“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
(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 toPage 6 of 8
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.
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.”
11. Whether the sexual act was consensual or not is a
matter of trial and this court cannot at the time of
considering the issue of quashing the instant F.I.R., look
into it. That being so, there is no merit in the instant
criminal petition and accordingly, the criminal petition
stands dismissed.
12. It is needless to clarify that the observations
made herein is only for the purpose of considering the
prayer made in the instant criminal petition and the same
shall not have any effect on the independent judicial
discretion of the learned trial court.
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13. The criminal petition accordingly, stands disposed
of.
JUDGE
Comparing Assistant
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