2023 Supreme(SC) 77

SUPREME COURT OF INDIA
AJAY RASTOGI, BELA M. TRIVEDI, JJ.
Naim Ahamed – Appellant
Versus
State (NCT of Delhi) – Respondent
Criminal Appeal No. 257 of 2023, SLP (Crl.) No. 8586 of 2017
Decided On : 30-01-2023

IMPORTANT POINTS
(1) Rape – Misconception of fact – There is a difference between giving a false promise and committing breach of promise by accused – It would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for offence under Section 376 of IPC.
(2) Recording of evidence of witness – If witness gives evidence in language of court, it has to be taken down in that language only – If 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 evidence in language of court may be prepared.

Headnote:

(A) Indian Penal Code, 1860 – Section 375 read with Section 90 – Indian Evidence Act, 1872 – Section 114A – Rape – Misconception of fact – If sexual intercourse by accused is proved and question arises as to whether it was without consent of woman alleged to have been raped, and if she states in her evidence before court that she did not consent, court shall presume that she did not consent – Consent given by a person would not be a consent as intended by any Section of Indian Penal Code, if such consent was given by person under fear of injury, or under a misconception of fact as contemplated in Section 90 IPC – Expression “misconception of fact” contained in Section 90 IPC is also required to be appreciated in light of Clauses contained in Section 375 IPC, more particularly Clauses Thirdly, Fourthly and Fifthly thereof, when accused is charged for offence of ‘rape’ – Circumstances described in the three Clauses are wider than expression “misconception of fact”, as contemplated in Section 90 of IPC – Apart from prosecutrix being under misconception of fact as contemplated in Section 90, her consent would be treated as ‘no consent’ if she had given her consent under any of circumstances mentioned in Section 375 of IPC. (Paras 10 and 11)

(B) Indian Penal Code, 1860 – Section 376 read with Section 90 – Rape – Misconception of fact – Conviction and sentence – There is a difference between giving a false promise and committing breach of promise by accused – It would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for offence under Section 376 – Prosecutrix who herself was a married woman having three children, could not be said to have acted under alleged false promise given by appellant or under misconception of fact while giving consent to have sexual relationship with appellant – She continued to have such relationship with him at least for about five years till she gave complaint – Prosecutrix being a married woman and mother of three children was matured and intelligent enough to understand significance and consequences of moral or immoral quality of act she was consenting to – She had betrayed her husband and three children by having relationship with accused – It could not be said that prosecutrix had given her consent for sexual relationship with appellant under misconception of fact – Accused deserves to be acquitted from charges levelled against him – Direction for payment of compensation given by courts below shall remain unchanged as appellant had accepted responsibility of child and has also paid amount of compensation to prosecutrix. (Paras 20, 21, 22 and 26)

(C) Criminal Procedure Code, 1973 – Sections 276 and 277 – Recording of evidence of witness – Evidence of witness has to be taken down in language of court as required under Section 277 Cr.P.C. – If witness gives evidence in language of court, it has to be taken down in that language only – If 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 evidence in language of court may be prepared – It is only when witness gives evidence in English and is taken down as such, and a translation thereof in language of court is not required by any of parties, then court may dispense with such translation – If witness gives evidence in language other than language of court, a true translation thereof in language of court has to be prepared as soon as practicable – Evidence of witness has to be recorded in language of court or in language of witness as may be practicable and then get it translated in language of court for forming part of record – However, recording of evidence of witness in translated form in English language only, though witness gives evidence in language of court, or in his/her own vernacular language, is not permissible – As such, text and tenor of evidence and demeanour of a witness in court could be appreciated in the best manner only when evidence is recorded in language of witness – Even otherwise, when a question arises as to what exactly the witness had stated in his/her evidence, it is original deposition of witness which has to be taken into account and not translated memorandum in English prepared by Presiding Judge – All courts while recording evidence of witnesses, shall duly comply with provisions of Section 277 of Cr.P.C. (Paras 24 and 25)

Facts of the case:

Sessions Court while holding appellant-accused guilty for offence under Section 376 of IPC had sentenced him to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs.50,000/-, in default thereof to suffer further imprisonment for a period of one year. Sessions Court had also directed appellant to pay compensation of Rs.5,00,000/- to the prosecutrix to enable her to maintain herself as well as minor child. High Court in the appeal filed by appellant, modified order of sentence passed by Sessions Court, by reducing substantive sentence to 7 years with fine of Rs.5,000/- and confirmed the direction with regard to payment of compensation to prosecutrix. It is stated that appellant has paid amount of compensation of Rs.5,00,000/- to prosecutrix as directed by High Court.

Findings of Court:

Impugned judgments and orders passed by the High Court and the Sessions Court are set aside, except the direction for payment of compensation to the prosecutrix. The appellant-accused is acquitted from the charges levelled against him and is directed to be set free forthwith.

Result : Appeal allowed.