NAIM AHAMED versus STATE (NCT OF DELHI)

Citation: [2023] 1 S.C.R. 1061 · Decided: 30-01-2023 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Appeal(s) allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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1061
   [2023] 1 S.C.R. 1061
NAIM AHAMED
v.
STATE (NCT OF DELHI)
(Criminal Appeal No. 257 of 2023)
JANUARY 30, 2023
[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
Penal Code, 1860 – ss.375, 376 – Conviction u/s.376, when
not justified – Plea of the respondents was that the prosecutrix gave
her consent for sexual relationship under the misconception of fact,
as the accused had given a false promise to marry her but
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 s.375 – Held: In the present 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-
accused or under the misconception of fact while giving the consent
to have sexual relationship with the appellant – She continued to
have such relationship with him at least for about five years till she
gave complaint in the year 2015 – Prosecutrix was matured and
intelligent enough to understand the significance and the
consequences of the moral or immoral quality of act she was
consenting to – Till the time she was impregnated by the appellant
in the year 2011 and she gave birth to a male child, she did not
have any complaint against the appellant of him having given false
promise to marry her or having cheated her – She continued to live
with the accused even after she came to know in 2012 that he was
married and had children also – 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 complaint –
On facts, it could not be said by any stretch of imagination that the
prosecutrix gave her consent for the sexual relationship with the
appellant under the misconception of fact, so as to hold him guilty
of having committed rape within the meaning of s.375 – Appellant
acquitted – Impugned judgments and orders passed by the High
Court and Sessions Court are set aside – However, the direction for
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SUPREME COURT REPORTS
[2023] 1 S.C.R.
payment of compensation to the prosecutrix remains unchanged –
Evidence Act, 1872 – s.114A.
Penal Code, 1860 – ss.90, 375 – Held: The expression
“misconception of fact” contained in s.90 is required to be
appreciated in the light of the Clauses contained in s.375, more
particularly the Clauses- Thirdly, Fourthly and Fifthly thereof, when
the accused is charged for the offence of ‘rape’ – Circumstances
described in the said three Clauses are wider than the expression
“misconception of fact”, as contemplated in s.90.
Penal Code, 1860 – ss.375, 376 – False Promise and
Committing Breach of Promise – Difference between – Held: In case
of false promise, the accused right from the beginning would not
have any intention to marry the prosecutrix and would have cheated
or deceited her by giving a false promise to marry her only with a
view to satisfy his lust – However, 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 – Thus, 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
u/s.376 – Each case would depend upon its proved facts before the
court.
Code of Criminal Procedure, 1973 – ss.276, 277 – Held: 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 – 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, 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 

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