The Supreme Court yesterday while allowing an appeal of a rape convict held that the Trial Courts must follow Section 277 of the Cr.PC. by not recording the witness testimonies in English translations alone.

The Court in this rape case held that each breach of a promise to marry as a false promise does not amount to rape. The Court acquitted the accused who was sentenced to 10 years imprisonment by the Sessions Court and the same got modified by the Delhi High Court by reducing the sentence to 7 years.

The two-Judge Bench comprising Justice Ajay Rastogi and Justice Bela M. Trivedi asserted, “… the evidence of the witness has to be taken down in the language of the court as required under Section 277 Cr.P.C. If the witness gives evidence in the language of the court, it has to be taken down in that language only. If the witness gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the court may be prepared.”

The Bench further said that if the witness gives evidence in a language other than the language of the court, a true translation thereof in the language of the court has to be prepared as soon as practicable.

The Court while acquitting the accused observed, “… one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.”

The Bench further observed that the prosecutrix who was a married woman having three children, could not be said to have acted under the alleged false promise given by the accused or under the misconception of fact while giving consent to have a sexual relationship with him.

“Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far”, the Court said.

The Court further held that the prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of the act she was consenting to.

Advocate Raj Kishor Choudhary appeared on behalf of the appellant i.e., the accused while Advocate K.L. Janjani appeared for the respondent i.e., the State.

Facts of the Case –

The prosecutrix was a married woman having three children and the accused was staying in a tenanted premises situated in front of her house. Though initially hesitant, the she developed liking for the accused, and both started having a sexual relationship with each other due to which the prosecutrix delivered a male child from the loin of the accused. She went to the native place of the accused in 2012 and came to know that he was a married man having children.

The prosecutrix still continued to live with the accused on separate premises and also took a divorce from her husband by mutual consent in 2014. Thereafter, she permanently left her three children with her husband but then she lodged the complaint in 2015 alleging that she had consented to a sexual relationship with the accused as he had promised her to marry and subsequently did not marry.

The Additional Sessions Judge held the accused guilty for the offence under Section 376 of the IPC and sentenced him to 10 years imprisonment and Rs. 50,000/- fine along with the compensation of Rs. 5 lakhs to the prosecutrix to maintain her minor child. However, the High Court modified the said order by reducing the sentence to 7 years and fine of Rs. 5,000/- and confirmed the direction regarding compensation.

The Supreme Court after hearing the contentions of both parties said, “… it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. … Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband.”

The Court further noted that it was only in the year 2015 when some disputes took place and therefore, the prosecutrix filed the complaint against the accused.

“… it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC”, the Court said.

The Court, therefore, directed that the accused deserves to be acquitted from the charges levelled against him and that the direction for payment of compensation given by the courts below shall remain unchanged as the appellant had accepted the responsibility of the child, and has also paid the amount of compensation to the prosecutrix.

“As such, the text and tenor of the evidence and the demeanor of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness. … all courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of Cr.PC”, the Court further directed.

Accordingly, the Court allowed the appeal, set aside the decision of the High Court, and acquitted the accused.

Cause Title- Naim Ahamed v. State (NCT of Delhi)

Click here to read/download the Judgment

Justice Ajay RastogiJustice Bela M TrivediRape CaseSection 376 IPCWitnesstrial courts

Swasti Chaturvedi