Married woman with children can’t be said to have acted under false promise to marriage, says SC; acquits rape accused

The bench opined that it would be a folly to treat each breach of promise to marry as a false promise and to prosecute such a person for the offence of rape.

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THE Supreme Court on Monday acquitted a man of rape charges after observing that the prosecutrix, a married woman with three children, could not be said to have acted under an alleged false promise by the accused or under a misconception while giving her consent to have sexual relations with him.

"The prosecutrix being a married woman and the mother of three children was mature and intelligent enough to understand the significance and the consequences of the moral or immoral quality of the act she was consenting to," a division bench comprising Justices Ajay Rastogi and Bela M. Trivedi said.

The bench was ruling on an appeal filed by one Naim Ahmed, who was held guilty of rape under Section 376 (punishment for rape) of the Indian Penal Code (IPC), and was sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of fifty thousand rupees, and in default thereof to suffer further imprisonment for a period of one year.

The Sessions Court had also directed the accused to pay compensation of five lakh rupees to the prosecutrix to enable her to maintain herself as well as her minor child. On appeal, the Delhi High Court, in 2016, while maintaining the conviction under Section 376, modified the order of sentence passed by the sessions court by reducing the substantive sentence to seven years with a fine of five thousand rupees, and confirmed the direction with regard to the payment of compensation to the prosecutrix.

Ahmed was granted bail during the pendency of his appeal on April 20, 2018.

The allegations against Ahmed were that he lured the prosecutrix to have sexual relations with him by giving her a false promise that he would marry her. But he did not marry the victim after she delivered the child. The issue before the court, thus, was whether the promise made to marry was false. Both the sessions court and the high court ruled that it was a case of false promise to marry because the appellant never disclosed to the victim that he was already married.

Disapproving the orders of the sessions court and the high court, the Supreme Court observed that the entire conduct of the prosecutrix during the course of her relationship with the accused showed that she had betrayed her husband and three children by having a relationship with the appellant, for whom she had developed a liking.

"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 having given false promise to marry her or having cheated her," the bench added.

Explaining the difference between a false promise to marriage and committing a breach of promise, the bench said 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 deceived the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust; whereas in the 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 circumstances beyond his control, which prevented him from fulfilling his promise.

The bench thus opined that it would be a folly to treat each breach of promise to marry as a false promise and to prosecute such a person for the offence under Section 376. The bench, however, clarified that each case would depend upon its proven facts before the court.

On facts, the bench noted that the prosecutrix visited the native place of the appellant in 2012 and came to know that he was a married man having children; still she continued to live with him at another premises without any grievance.

Commenting on the conduct of the prosecutrix, the bench noted that 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 [the Code of Criminal Procedure] had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, 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," the bench underscored.

Before parting with the case, the bench flagged the issue of the trial court not taking the deposition of the witnesses in the language known to them.

"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 Section 277 [of the Code of Criminal Procedure]," the bench held.

The bench further noted that if a 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 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 bench added.

The bench also made it clear that when a question arises as to what exactly the witness had stated in their 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 presiding judge. It thus directed all courts while recording the evidence of witnesses to duly comply with the provisions of Section 277 of the Code of Criminal Procedure.

The bench issued directions to this effect after noting that the deposition of the prosecutrix was recorded by the trial court in the English language even though she had deposed in her vernacular language.

Click here to view the Supreme Court's full judgment.