1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 257 OF 2023

(Arising Out of SLP (Crl.) NO. 8586 OF 2017)

NAIM AHAMED .......APPELLANT

VERSUS

STATE (NCT OF DELHI) ......RESPONDENT

J U D G M E N T

BELA M. TRIVEDI, J.

1.Leave granted.

2.The appeal filed by the appellant-accused is directed against the

judgment and order dated 30.09.2016 passed by the High Court of

Delhi in Criminal Appeal No.46/2016, whereby the High Court while

disposing of the appeal has modified the judgment and order dated

27.11.2015 passed by the Additional Sessions Judge, Special Fast

Track Court, Dwarka Courts, New Delhi (hereinafter referred to as

the Sessions Court) in Sessions Case No. 67/2015.

3.The Sessions Court while holding the appellant-accused guilty for

the 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. The Sessions Court had also directed the

appellant to pay compensation of Rs.5,00,000/- to the prosecutrix to 2023 INSC 85

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enable her to maintain herself as well as the minor child. The High

Court in the appeal filed by the appellant, modified the order of

sentence passed by the Sessions Court, by reducing the

substantive sentence to 7 years with fine of Rs.5,000/- and

confirmed the direction with regard to the payment of compensation

to the prosecutrix. It is stated that the appellant has paid the

amount of compensation of Rs.5,00,000/- to the prosecutrix as

directed by the High Court.

4.The case of the prosecution as laid before the Sessions Court was

that the prosecutrix was residing in a tenanted premises at C-1/3/5,

Sanjay Enclave, Uttam Nagar, Delhi with her husband and three

children in the year 2009. The accused was also residing in a

tenanted premises which was situated in front of her house. On

21.03.2015, the prosecutrix lodged a complaint against the accused

alleging inter alia that the accused was persuading her by stating

that her husband was not earning sufficient income and that he (the

accused) had a good job and he would maintain her according to

his status. The accused also assured her that he would solemnize

marriage (nikah) with her. Thereafter, the accused with an intention

to have illicit intercourse with her, used to call her at various places,

as a result thereof, she was impregnated in the year 2011. She

further alleged that the accused persuaded the prosecutrix that

after the delivery of child, he would marry her. He also assured her

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that he was not a married man and after the marriage, he would

take her to his native place. In the year 2012, the accused enticed

her away in another rented premises at Kapashera Border Nathu

Mal Building and continued to have illicit relationship with her. After

sometime the accused vacated the said rented premises with a

false excuse that his parents were severely ill and he had to visit his

native place. He told the prosecutrix to take shelter in a shelter

home along with the minor child Naman. He also forced her to take

divorce from her husband. The prosecutrix had further alleged in

the complaint that the accused had lied to her that he had gone to

his native place, but in fact he had not gone, which she came to

know when she visited the call center where the accused was

working. When she made hue and cry at his place of working, he

assured her that he would soon marry her. In the year 2012, she

visited the native place of the accused and came to know that he

was already married and had children also. The parents of the

accused refused to keep her there. Thereafter, also the accused

kept on assuring her to marry her but did not marry. Hence, the

complaint was filed. The said complaint was registered as the FIR

No.412/2015 at Police Station Bindapur, District South West, Delhi

on 21.03.2015 against the accused for the offence under Section

376 of the Indian Penal Code.

5.After the examination of eleven witnesses by the prosecution, the

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incriminating evidence was brought to the notice of the accused for

the purpose of explanation under Section 313 of Cr.PC, however

the accused denied the allegations levelled against him and further

stated that he was having consensual physical relations with the

prosecutrix and that she was aware that he was a married person

having children, and that she had also met his wife at his house. He

had also stated that he was providing financial help to the

prosecutrix regularly, and when he refused to fulfil her demand of

Rs.1.5 lakh to Rs.2 lakhs, she lodged a false case against him. The

Sessions Court after appreciating the evidence on record convicted

and sentenced the appellant-accused as stated hereinabove.

6.The Learned counsel appearing for the appellant vehemently

submitted that the Sessions Court and the High Court had failed to

appreciate the evidence in the right perspective, and convicted the

appellant under Section 376 IPC, which has resulted into gross

miscarriage of justice. Pressing into service Section 375 read with

Section 90 of IPC, he submitted that the prosecutrix having

admitted in her evidence that she was a consenting party to the

sexual relationship with the appellant since 2009-2010, and that it

continued even after the delivery of the child in 2011, till filing of the

complaint in 2015, it could not be said by any stretch of imagination

that the appellant-accused had committed rape within the meaning

of Clause-Secondly of Section 375 read with Section 90 of IPC.

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According to him, the very fact that the prosecutrix had lodged the

complaint in March 2015 after she gave birth to the child in

November 2011, and after she visited his native place in 2012,

reflected her intention to misuse the process of law by making false

allegations against the accused and to grab money from him. He

further submitted that even as per her own story, the appellant had

not disowned the responsibility of the child born from his loin and

she continued to have relationship with the accused for about four

years after the birth of the child. It was only when the accused

refused to fulfill her demand of paying huge amount to her, she filed

the complaint. The learned counsel has relied upon the decisions of

this Court in case of Deelip Singh alias Dilip Kumar vs. State of

Bihar

1

; in case of Prashant Bharti vs. State (NCT of Delhi)

2

, and

in case of Dr. Dhruvaram Murlidhar Sonar vs. State of

Maharashtra and Others

3

to buttress his submission that the

consensual sexual relationship which if continued between the

parties for quite a long time, in the instant case for about five years,

could not be said to have continued under the ‘misconception of

fact’ under Section 90 and could not be said to be ‘rape’ under

Section 375 IPC.

7.Sh. K.L Janjani, learned counsel appearing for the respondent-

State however submitted that the Sessions Court and the High

1 (2005) 1 SCC 88

2 (2013) 9 SCC 293

3 (2019) 18 SCC 191

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Court having concurrently recorded findings of facts against the

appellant-accused, holding him guilty under Section 376 IPC, this

Court should not interfere with the same. According to him, even

otherwise, the prosecution had proved beyond doubt that the

appellant-accused had lured the prosecutrix to have sexual

relationship with him by giving her a false promise that he would

marry her, however, he committed breach of the promise after she

delivered the child, which clearly proved that her consent was

obtained by the appellant under the misconception of fact.

8.Since the prosecutrix was not being represented by any lawyer,

though served, the court had appointed Ms. Indira Jaising, Senior

Advocate as an Amicus Curiae to assist the Court on her behalf.

She in addition to her written submissions, further submitted that

there was a clear distinction between ‘rape’ and ‘consensual sex’,

and that the Court was required to carefully examine as to whether

the accused had with malafide motives made false promise of

marriage or it was a mere breach of promise by the accused.

According to her, the courts below had rightly appreciated the

evidence of the prosecutrix for arriving at the conclusion that the

consent of the prosecutrix to have sexual relationship with the

accused was under the misconception of fact under Section 90 of

the IPC and therefore the case of the prosecutrix fell under the

Clause - Secondly of Section 375 IPC. Ms. Indira Jaising has also

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relied upon various decisions of this Court in support of her

submissions.

9.For the better appreciation of the submissions made by the learned

counsels for the parties, the relevant provisions contained in

Section 90 and Section 375 of IPC, are reproduced below:-

“90. Consent known to be given under fear or

misconception.—A consent is not such a consent

as it intended by any section of this Code, if the

consent is given by a person under fear of injury, or

under a misconception of fact, and if the person

doing the act knows, or has reason to believe, that

the consent was given in consequence of such fear

or misconception; or Consent of insane person.—if

the consent is given by a person who, from

unsoundness of mind, or intoxication, is unable to

understand the nature and consequence of that to

which he gives his consent; or Consent of child.—

unless the contrary appears from the context, if the

consent is given by a person who is under twelve

years of age.

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

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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.

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.

Exception1. 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.”

10.It would be germane to note that the basic principles of criminal

jurisprudence warrant that the prosecution has to prove the guilt of

the accused beyond reasonable doubt by leading cogent evidence,

however, considering the ethos and culture of the Indian Society,

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and considering the rising graph of the commission of the social

crime – ‘Rape’, the courts have been permitted to raise a legal

presumption as contained in Section 114A of the Indian Evidence

Act. As per Section 114A, a presumption could be raised as to the

absence of consent in certain cases pertaining to Rape. As per the

said provision, if sexual intercourse by the accused is proved and

the question arises as to whether it was without the consent of the

woman alleged to have been raped, and if she states in her

evidence before the court that she did not consent, the court shall

presume that she did not consent.

11.It cannot be gainsaid that a consent given by a person would not be

a consent as intended by any Section of the Indian Penal Code, if

such consent was given by the person under the fear of injury, or

under a misconception of fact as contemplated in Section 90 IPC.

Further, Section 375 also describes certain acts which if committed

by the accused under the circumstances mentioned therein, as the

commission of ‘Rape’, even though committed with the consent of

the prosecutrix. In our opinion, the expression “misconception of

fact” contained in Section 90 IPC is also required to be appreciated

in the light of the Clauses – contained in Section 375 IPC, more

particularly the Clauses - Thirdly, Fourthly and Fifthly thereof, when

the accused is charged for the offence of ‘rape’. The circumstances

described in the said three Clauses are wider than the expression

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“misconception of fact”, as contemplated in Section 90 of IPC.

Section 375 describes seven circumstances under which the ‘rape’

could be said to have been committed. As per the Clause - Thirdly,

a rape could be said to have been committed, even with her

consent, when the consent of the prosecutrix is obtained by putting

her or any person in whom she is interested in fear of death or of

hurt. As per the Clause - 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; and as per the Clause -

Fifthly, with her consent when at the time of giving the consent, the

prosecutrix by reason of unsoundness of mind or intoxication or the

administration of stupefying or unwholesome substance by the

accused or through another, she is unable to understand the nature

and consequences of that to which she gives consent. Thus, apart

from the prosecutrix being under the 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 the

circumstances mentioned in Section 375 of IPC.

12.The exposition of law in this regard is discernible in various

decisions of this Court, however the application of such law or of

such decisions would depend upon the proved facts in each case,

known as legal evidence. The ratio laid down in the judgements or

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the law declared by this Court do provide the guidelines to the

judicial mind of the courts to decide the cases on hand, but the

courts while applying the law also have to consider the evidence

before them and the surrounding circumstances under which the

alleged offences are committed by the accused.

13.A reference of some of the decisions of this Court dealing with the

different dimensions and angles of the word ‘consent’ in the context

of Section 90 and Section 375 would be beneficial for deciding this

appeal.

14.In Uday vs. State of Karnataka

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, the prosecutrix aged about 19

years had given her consent for having a sexual intercourse with

the accused with whom she was deeply in love, and it was alleged

by the prosecution that the prosecutrix continued to meet the

accused as the accused had given her a promise to marry her on a

later date. The prosecutrix became pregnant and the complaint was

lodged on failure of the accused to marry her. This Court while

holding that under the circumstances, the consent could not be said

to have been given under a misconception of fact under section 90

of IPC, held in para 21 and 23 as under :-

“21. It therefore appears that the consensus of

judicial opinion is in favour of the view that the

consent given by the prosecutrix to sexual

intercourse with a person with whom she is deeply

in love on a promise that he would marry her on a

later date, cannot be said to be given under a

misconception of fact. A false promise is not a fact

within the meaning of the Code. We are inclined to

4 (2003) 4 SCC 46

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agree with this view, but we must add that there is

no straitjacket formula for determining whether

consent given by the prosecutrix to sexual

intercourse is voluntary, or whether it is given under

a misconception of fact. In the ultimate analysis, the

tests laid down by the courts provide at best

guidance to the judicial mind while considering a

question of consent, but the court must, in each

case, consider the evidence before it and the

surrounding circumstances, before reaching a

conclusion, because each case has its own peculiar

facts which may have a bearing on the question

whether the consent was voluntary, or was given

under a misconception of fact. It must also weigh

the evidence keeping in view the fact that the

burden is on the prosecution to prove each and

every ingredient of the offence, absence of consent

being one of them.

22. -xxx- xx -

23. Keeping in view the approach that the court

must adopt in such cases, we shall now proceed to

consider the evidence on record. In the instant

case, the prosecutrix was a grown-up girl studying

in a college. She was deeply in love with the

appellant. She was, however, aware of the fact that

since they belonged to different castes, marriage

was not possible. In any event the proposal for their

marriage was bound to be seriously opposed by

their family members. She admits having told so to

the appellant when he proposed to her the first

time. She had sufficient intelligence to understand

the significance and moral quality of the act she

was consenting to. That is why she kept it a secret

as long as she could. Despite this, she did not resist

the overtures of the appellant, and in fact

succumbed to them. She thus freely exercised a

choice between resistance and assent. She must

have known the consequences of the act,

particularly when she was conscious of the fact that

their marriage may not take place at all on account

of caste considerations. All these circumstances

lead us to the conclusion that she freely, voluntarily

and consciously consented to having sexual

intercourse with the appellant, and her consent was

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not in consequence of any misconception of fact.”

15.In Deelip Singh alias Dilip Kumar Vs. State of Bihar (supra), this

Court after discussing various earlier decisions of this Court and

other High Courts, further explained the observations made in

Uday case (supra) and observed as under:-

“28. The first two sentences in the above passage

need some explanation. While we reiterate that a

promise to marry without anything more will not give

rise to “misconception of fact” within the meaning of

Section 90, it needs to be clarified that a

representation deliberately made by the accused

with a view to elicit the assent of the victim without

having the intention or inclination to marry her, will

vitiate the consent. If on the facts it is established

that at the very inception of the making of promise,

the accused did not really entertain the intention of

marrying her and the promise to marry held out by

him was a mere hoax, the consent ostensibly given

by the victim will be of no avail to the accused to

exculpate him from the ambit of Section 375 clause

secondly. This is what in fact was stressed by the

Division Bench of the Calcutta High Court in the

case of Jayanti Rani Panda [1984 Cri LJ 1535 :

(1983) 2 CHN 290 (Cal)] which was approvingly

referred to in Uday case [(2003) 4 SCC 46 : 2003

SCC (Cri) 775 : (2003) 2 Scale 329] . The Calcutta

High Court rightly qualified the proposition which it

stated earlier by adding the qualification at the end

(Cri LJ p. 1538, para 7) — “unless the court can be

assured that from the very inception the accused

never really intended to marry her”. (emphasis

supplied) In the next para, the High Court referred

to the vintage decision of the Chancery Court which

laid down that a misstatement of the intention of the

defendant in doing a particular act would

tantamount to a misstatement of fact and an action

of deceit can be founded on it. This is also the view

taken by the Division Bench of the Madras High

Court in Jaladu case [ILR (1913) 36 Mad 453 : 15

Cri LJ 24] (vide passage quoted supra). By making

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the solitary observation that “a false promise is not

a fact within the meaning of the Code”, it cannot be

said that this Court has laid down the law differently.

The observations following the aforesaid sentence

are also equally important. The Court was cautious

enough to add a qualification that no straitjacket

formula could be evolved for determining whether

the consent was given under a misconception of

fact. Reading the judgment in Uday case [(2003) 4

SCC 46 : 2003 SCC (Cri) 775 : (2003) 2 Scale 329]

as a whole, we do not understand the Court laying

down a broad proposition that a promise to marry

could never amount to a misconception of fact. That

is not, in our understanding, the ratio of the

decision. In fact, there was a specific finding in that

case that initially the accused's intention to marry

cannot be ruled out.”

16.In Deepak Gulati vs. State of Haryana

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, this Court gave one more

dimension of the word ‘consent’ by distinguishing ‘Rape’ and

‘consensual sex’ and observed as under:

“21. Consent may be express or implied, coerced or

misguided, obtained willingly or through deceit.

Consent is an act of reason, accompanied by

deliberation, the mind weighing, as in a balance, the

good and evil on each side. There is a clear

distinction between rape and consensual sex and in

a case like this, the court must very carefully

examine whether the accused 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 latter falls within the ambit of

cheating or deception. There is a distinction

between the mere breach of a promise, and not

fulfilling a false promise. Thus, the court must

examine whether there was made, at an early stage

a false promise of marriage by the accused; and

whether the consent involved was given after wholly

understanding the nature and consequences of

sexual indulgence. There may be a case where the

prosecutrix agrees to have sexual intercourse on

5 (2013) 7 SCC 675

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account of her love and passion for the accused,

and not solely on account of misrepresentation

made to her by the 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 so. Such cases must be treated

differently. An accused can be convicted for rape

only if the court reaches a conclusion that the

intention of the accused was mala fide, and that he

had clandestine motives.

22. xxxxx

23. xxxxx

24. Hence, it is evident that there must be adequate

evidence to show that at the relevant time i.e. at the

initial stage itself, the accused had no intention

whatsoever, of keeping his promise to marry the

victim. There may, of course, be circumstances,

when a person having the best of intentions is

unable to marry the victim owing to various

unavoidable circumstances. The “failure to keep a

promise made with respect to a future uncertain

date, due to reasons that are not very clear from the

evidence available, does not always amount to

misconception of fact. In order to come within the

meaning of the term “misconception of fact”, the

fact must have an immediate relevance”. Section 90

IPC cannot be called into aid in such a situation, to

pardon the act of a girl in entirety, and fasten

criminal liability on the other, unless the court is

assured of the fact that from the very beginning, the

accused had never really intended to marry her”.

17.Again in Dr. Dhruvaram Murlidhar Sonar Vs. State of

Maharashtra and others (supra), this Court interpreting the

Section 90 and the Clause – Secondly in Section 375 of IPC,

observed as under: -

“23. Thus, there is a clear distinction between rape

and consensual sex. The court, in such cases, must

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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 latter 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 IPC.”

18.Now, in the instant case, having regard to the statutory provisions

and their interpretations by this Court in various judgements, one

may be tempted to hold the appellant-accused guilty of the offence

under Section 376 IPC as has been done by the Sessions Court

and the High Court, however, on the closer scrutiny of the evidence

on record, we find that it was fallacy on the part of the courts below

to hold the appellant guilty under Section 376 IPC.

19.After duly examining the record in the light of the submissions made

by the learned counsels for the parties, following facts have

emerged: -

(i)Prosecutrix was a married woman having three children.

(ii)Accused was staying in a tenanted premises situated in front

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of the house of the prosecutrix.

(iii)Though initially hesitant, the prosecutrix developed liking for

the accused, and both started having sexual relationship with

each other.

(iv)The prosecutrix delivered a male child on 28/10/2011 from

the loin of the accused.

(v)The prosecutrix went to the native place of the accused in

2012 and came to know that he was a married man having

children.

(vi)The prosecutrix still continued to live with the accused in

separate premises.

(vii)The prosecutrix and her husband took divorce by mutual

consent in 2014 and thereafter prosecutrix permanently left

her three children with her husband.

(viii)The prosecutrix lodged the complaint on 21

st

March, 2015

alleging that she had consented for sexual relationship with

the accused as the accused had promised her to marry and

subsequently did not marry.

20.The bone of contention raised on behalf of the respondents is that

the prosecutrix had given her consent for sexual relationship under

the misconception of fact, as the accused had given a false promise

to marry her and subsequently he did not marry, and therefore such

consent was no consent in the eye of law and the case fell under

the Clause – Secondly of Section 375 IPC. In this regard, it is

pertinent to note that there is a difference between giving a false

promise and committing breach of promise by the accused. In case

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of false promise, the accused right from the beginning would not

have any intention to marry the prosecutrix and would have cheated

or deceited the prosecutrix by giving a false promise to marry her

only with a view to satisfy his lust, whereas in case of breach of

promise, 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.

21.In the instant case, the prosecutrix who herself was a married

woman having three children, could not be said to have acted under

the alleged false promise given by the appellant or under the

misconception of fact while giving the consent to have sexual

relationship with the appellant. 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 prosecutrix being a married

woman and the mother of three children was matured and

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intelligent enough to understand the significance and the

consequences of the moral or immoral quality of act she was

consenting to. Even otherwise, if her entire conduct during the

course of such relationship with the accused, is closely seen, 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. She had gone to stay with him during the subsistence

of her marriage with her husband, to live a better life with the

accused. 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. It was only in the year 2015 when some disputes must

have taken place between them, that she filed the present

complaint. The accused in his further statement recorded under

Section 313 of Cr.P.C. had stated that she had filed the complaint

as he refused to fulfill her demand to pay her huge amount. Thus,

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having regard to the facts and circumstances of the case, 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.

22.In that view of the matter, the accused deserves to be acquitted

from the charges levelled against him. Of course, 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.

23.At this juncture, it may be noted that during the course of hearing it

was brought to the notice of the Court that the deposition of the

prosecutrix was recorded by the trial court in English language

though she had deposed in her vernacular language. In this regard,

a reference of Section 276 and Section 277 of Cr.P.C. needs to be

made, which reads as under: -

“276 (1) In all trials before a Court of

Session, the evidence of each witness shall,

as his examination proceeds, be taken

down in writing either by the presiding

Judge himself or by his dictation in open

Court or, under his direction and

superintendence, by an officer of the Court

appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken

down in the form of a narrative, but the

presiding Judge may, in his discretion, take

down, or cause to be taken down, any part

21

of such evidence in the form of question and

answer.]

(3) The evidence so taken down shall be

signed by the presiding Judge and shall

form part of the record.

277. Language of record of evidence. In

every case where evidence is taken down

under section 275 or section 276, -

(a) if the witness gives evidence in the

language of the Court, it shall be taken

down in that language;

(b) if he 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 shall

be prepared as the examination of the

witness proceeds, signed by the Magistrate

or presiding Judge, and shall form part of the

record;

(c) where under clause (b) evidence is taken

down in a language other than the language

of the Court, a true translation thereof in the

language of the Court shall be prepared as

soon as practicable, signed by the

Magistrate or presiding Judge, and shall

form part of the record: Provided that when

under clause (b) evidence is taken down in

English and a translation thereof in the

language of the Court is not required by any

of the parties, the Court may dispense with

such translation”.

24.We are apprised that in some of the trial courts the depositions of

the witnesses are not being recorded in their language and are

being recorded in English language only, as may be translated by

the Presiding officer. In our opinion, the evidence of the witness has

to be taken down in the language of the court as required under

22

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. It is only when the witness gives evidence in English

and is taken down as such, and a translation thereof in the

language of the court is not required by any of the parties, then the

court may dispense with such translation. If the witness gives

evidence in the 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.

25.The evidence of the witness has to be recorded in the language of

the court or in the language of the witness as may be practicable

and then get it translated in the language of the court for forming

part of the record. However, recording of evidence of the witness in

the translated form in English language only, though the witness

gives evidence in the language of the court, or in his/her own

vernacular language, is not permissible. 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. Even otherwise, when a question

arises as to what exactly the witness had stated in his/her evidence,

23

it is the original deposition of the witness which has to be taken into

account and not the translated memorandum in English prepared

by the Presiding Judge. It is therefore directed that all courts while

recording the evidence of the witnesses, shall duly comply with the

provisions of Section 277 of Cr.PC.

26.For the reasons stated above, the impugned judgments and orders

passed by the High Court and the Sessions Court are set aside,

except the direction for the 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. The

appeal stands allowed accordingly.

…..…………………J.

(AJAY RASTOGI)

…..…………………J.

(BELA M. TRIVEDI)

NEW DELHI

30.01.2023