Gauhati High Court
Rajesh Khan vs The State Of Assam And Anr on 15 October, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
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GAHC010096842025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/474/2025
RAJESH KHAN
S/O. TAMEJ KHAN, R/O. NO. 2 MATHGHARIA, BORO CHOWK, P/O.
NOONMATI, P/S. NOONMATI, DIST. KAMRUP METRO, ASSAM, PIN-781020.
VERSUS
THE STATE OF ASSAM AND ANR.
REP BY THE PP ASSAM
2:PUTULI NATH HAJONG
S/O. SRI BANDHAN HAJONG
R/O. GEETAMANDIR HARIPUR
P/O. AND P/S. NOONMATI
DIST. KAMRUP METRO
ASSAM PIN-781020
Advocate for the Petitioner : MR. A MOBARAQUE, MR. A M KHAN
Advocate for the Respondent : PP, ASSAM,
Linked Case : Crl.A./170/2025
RAJESH KHAN
S/O. TAMEJ KHAN
R/O. NO. 2 MATHGHARIA
BORO CHOWK P/O. NOONMATI
P/S. NOONMATI
DIST. KAMRUP METRO
ASSAM PIN-781020.
VERSUS
THE STATE OF ASSAM AND ANR.
REP BY THE PP ASSAM
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2:PUTULI NATH HAJONG
S/O. SRI BANDHAN HAJONG
R/O. GEETAMANDIR
HARIPUR
P/O. AND P/S. NOONMATI
DIST. KAMRUP METRO
ASSAM PIN-781020.
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Advocate for : MR. A MOBARAQUE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 15.10.2025
(M. Zothankhuma, J)
Heard Mr. A. Mobaraque, learned counsel for the applicant/appellant. Also
heard Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam.
2. As per office note dated 28.05.2025, notice has been issued to the
respondent No. 2 through the O.C. of concerned Police Station, vide memo
dated 28.05.2025. However, no one appears on behalf of the respondent No.
2.
3. This application under Section 430(1) BNSS, 2023, seeks suspension of the
sentence passed against the present applicant/appellant and for his release on
bail.
4. The applicant/appellant has also challenged the judgment dated
03.03.2025, passed by the Court of the Addl. Sessions Judge-cum-Special Judge
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(POCSO), Kamrup (M), Guwahati in Sessions Special Case No. 269/2024. The
applicant/appellant has been convicted under Section 6 of the POCSO Act and
under Section 64 BNSS by the learned Trial Court and sentenced to undergo
rigorous imprisonment for 20 years with fine of Rs.1 Lakh, in default to undergo
rigorous imprisonment for 2 years, on the ground that he had a sexual
relationship with a girl of 17 years.
5. The counsel for the applicant/appellant submits that the evidence of the
victim girl would show that the victim had forced the applicant to elope with her
and as such, there was no forced sexual relationship with the victim, inasmuch
as, the appellant had also married the victim by putting vermilion on the
forehead of the victim. He also submits that as the Trial Court Records (TCR)
had not been received by the Registry and as the hearing on the appeal would
take a long time, it would be in the interest of justice, if the applicant is allowed
to be released on bail, till final disposal of the appeal.
6. Ms. B. Bhuyan, learned Addl. Public Prosecutor submits that the girl was 17
years of age and as she was a minor at the relevant point of time, the
application should be dismissed.
7. We have heard the learned counsels for the parties.
8. A perusal of the evidence of the victim girl, which is reflected in para 7 of
the impugned judgment passed by the learned Trial Court, shows that the
consensual sexual relationship between the victim and the applicant/appellant
had occurred, due to the victim forcing herself upon the applicant.
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9. Para 7 of the impugned judgment dated 03.03.2025 is reproduced herein
below as follows:-
"7. PW-2 is the victim, and claimed to know the accused stating further
that they were dating for about three years prior to lodging of FIR. On
August 31, she left her residence for school, but she ran into the accused
while travelling by Siv Temple. She told him to take her with him over the
phone, so he arrived there. Her elder sister discovered her affair with the
accused through a message on her phone and reprimanded her because
the accused is not of the same religion as her. Her family members were
unaware of their relationship. She phoned the accused and accompanied
him the following day. She insisted on going with him even though the
accused urged her to stay at home and study for the following two years
because she believed her family would never accept of her relationship
with him. After that, the accused drove her to Panikhati on his black
scooty, where they spent six days in a rented house. After the accused
applied vermillion to her forehead the following day, they started to live as
husband and wife. The accused and she had two sexual encounters
during this time. The accused had sexual intercourse with her twice.
When the accused called his father one day, he asked them both to attend
to the police station since the police were harassing the accused‟s family
and forcing them to provide their location. On 05.08.2024 morning she
along with accused came to police station and after that they were
interrogated. Afterwards she was sent for her medical examination and
also recording of statement in Court. She gave a brief account of what
happened to her to the doctor who took her medical history before to her
checkup. Every statement she had made before aligned with her version.
She was born on February 18, 2008, and she is currently enrolled in Geeta
Nagar High School‟s Class X. She proved her statement recorded under
section 183 of BNS as Ext.P1/PW2 and her original birth certificate as
MO1. During her cross-examination, she stated that the accused was
called by her. The accused promised to speak with her parents and
advised her to remain at home for another two years. She considered
herself to be at fault because she forced the accused to take her along.
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The accused and she had a consenting physical relationship. The accused
and she were taken to the police station by the accused‟s father."
10. On considering the fact that the TCR has not been received by the Registry
as on date, after which the paper book would have to be made, prior to having
a hearing on the case, we are of the view that till the appeal is decided, the
applicant/appellant should be released on bail. This is due to the fact that it
does not appear to us that the applicant will abscond. Further, there is no
question of tampering with the evidence. Accordingly, the applicant/appellant is
released on bail on a bond of Rs.10,000/-, with one surety of the like amount to
the satisfaction of the learned Trial Court. Consequently, the sentence imposed
upon the applicant/appellant vide order dated 07.03.2025, pursuant to the
judgment dated 03.03.2025, by the Court of the Addl. Sessions Judge-cum-
Special Judge (POCSO), Kamrup (M), Guwahati in Sessions Special Case No.
269/2024, is hereby suspended.
11. I.A. is accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
