NAIM AHAMED versus STATE (NCT OF DELHI) on 30 January 2023

1. Leave granted.

2. The appeal filed by the appellant-accused is directed againstthe judgment and order dated 30.09.2016 passed by the High Court ofDelhi in Criminal Appeal No.46/2016, whereby the High Court while H

Adisposing of the appeal has modified the judgment and order dated27.11.2015 passed by the Additional Sessions Judge, Special Fast TrackCourt, Dwarka Courts, New Delhi (hereinafter referred to as the SessionsCourt) in Sessions Case No. 67/2015.

3. The Sessions Court while holding the appellant-accused guiltyBfor the offence under Section 376 of IPC had sentenced him to undergorigorous imprisonment for a period of 10 years and pay fine ofRs.50,000/-, in default thereof to suffer further imprisonment for a periodof one year. The Sessions Court had also directed the appellant to paycompensation of Rs.5,00,000/- to the prosecutrix to enable her to maintainherself as well as the minor child. The High Court in the appeal filed byCthe appellant, modified the order of sentence passed by the SessionsCourt, by reducing the substantive sentence to 7 years with fine ofRs.5,000/- and confirmed the direction with regard to the payment ofcompensation to the prosecutrix. It is stated that the appellant has paidthe amount of compensation of Rs.5,00,000/- to the prosecutrix as directedDby the High Court.

4. The case of the prosecution as laid before the Sessions Courtwas that the prosecutrix was residing in a tenanted premises at C-1/3/5,Sanjay Enclave, Uttam Nagar, Delhi with her husband and three childrenin the year 2009. The accused was also residing in a tenanted premisesEwhich was situated in front of her house. On 21.03.2015, the prosecutrixlodged a complaint against the accused alleging inter alia that the accusedwas persuading her by stating that her husband was not earning sufficientincome and that he (the accused) had a good job and he would maintainher according to his status. The accused also assured her that he wouldsolemnize marriage (nikah) with her. Thereafter, the accused with anFintention to have illicit intercourse with her, used to call her at variousplaces, as a result thereof, she was impregnated in the year 2011. Shefurther alleged that the accused persuaded the prosecutrix that after thedelivery of child, he would marry her. He also assured her that he wasnot a married man and after the marriage, he would take her to hisGnative place. In the year 2012, the accused enticed her away in anotherrented premises at Kapashera Border Nathu Mal Building and continuedto have illicit relationship with her. After sometime the accused vacatedthe said rented premises with a false excuse that his parents were severelyill and he had to visit his native place. He told the prosecutrix to takeshelter in a shelter home along with the minor child Naman. He alsoH

forced her to take divorce from her husband. The prosecutrix had furtheralleged in the complaint that the accused had lied to her that he had goneto his native place, but in fact he had not gone, which she came to knowwhen she visited the call center where the accused was working. Whenshe made hue and cry at his place of working, he assured her that hewould soon marry her. In the year 2012, she visited the native place ofthe accused and came to know that he was already married and hadchildren also. The parents of the accused refused to keep her there.Thereafter, also the accused kept on assuring her to marry her but didnot marry. Hence, the complaint was filed. The said complaint wasregistered as the FIR No.412/2015 at Police Station Bindapur, DistrictSouth West, Delhi on 21.03.2015 against the accused for the offenceunder Section 376 of the Indian Penal Code.

5. After the examination of eleven witnesses by the prosecution,the incriminating evidence was brought to the notice of the accused forthe purpose of explanation under Section 313 of Cr.PC, however theaccused denied the allegations levelled against him and further statedthat he was having consensual physical relations with the prosecutrixand 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 thathe was providing financial help to the prosecutrix regularly, and when herefused to fulfil her demand of Rs.1.5 lakh to Rs.2 lakhs, she lodged afalse case against him. The Sessions Court after appreciating the evidenceon record convicted and sentenced the appellant-accused as statedhereinabove.

6. The Learned counsel appearing for the appellant vehementlysubmitted that the Sessions Court and the High Court had failed toappreciate the evidence in the right perspective, and convicted theappellant under Section 376 IPC, which has resulted into grossmiscarriage of justice. Pressing into service Section 375 read with Section90 of IPC, he submitted that the prosecutrix having admitted in herevidence that she was a consenting party to the sexual relationship withthe appellant since 2009-2010, and that it continued even after the deliveryof the child in 2011, till filing of the complaint in 2015, it could not be saidby any stretch of imagination that the appellant-accused had committedrape within the meaning of Clause-Secondly of Section 375 read withSection 90 of IPC. According to him, the very fact that the prosecutrixhad lodged the complaint in March 2015 after she gave birth to the childin November 2011, and after she visited his native place in 2012, reflected A

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Aher intention to misuse the process of law by making false allegationsagainst the accused and to grab money from him. He further submittedthat even as per her own story, the appellant had not disowned theresponsibility of the child born from his loin and she continued to haverelationship with the accused for about four years after the birth of thechild. It was only when the accused refused to fulfill her demand ofBpaying huge amount to her, she filed the complaint. The learned counselhas relied upon the decisions of this Court in case of Deelip Singhalias Dilip Kumar vs. State of Bihar[1]; in case ofPrashant Bharti vs.State(NCT of Delhi)[2], andin case of Dr. Dhruvaram Murlidhar Sonarvs. State of Maharashtra and Others[3] to buttress his submission thatCthe consensual sexual relationship which if continued between the partiesfor quite a long time, in the instant case for about five years, could notbe said to have continued under the ‘misconception of fact’ under Section90 and could not be said to be ‘rape’ under Section 375 IPC.

7. Sh. K.L Janjani, learned counsel appearing for the respondent-DState however submitted that the Sessions Court and the High Courthaving concurrently recorded findings of facts against the appellant-accused, holding him guilty under Section 376 IPC, this Court should notinterfere with the same. According to him, even otherwise, theprosecution had proved beyond doubt that the appellant-accused hadlured the prosecutrix to have sexual relationship with him by giving herEa false promise that he would marry her, however, he committed breachof the promise after she delivered the child, which clearly proved thather consent was obtained by the appellant under the misconception offact.

8. Since the prosecutrix was not being represented by any lawyer,Fthough served, the court had appointed Ms. Indira Jaising, Senior Advocateas an Amicus Curiae to assist the Court on her behalf. She in addition toher written submissions, further submitted that there was a cleardistinction between ‘rape’ and ‘consensual sex’, and that the Court wasrequired to carefully examine as to whether the accused had withGmalafide motives made false promise of marriage or it was a merebreach of promise by the accused. According to her, the courts belowhad rightly appreciated the evidence of the prosecutrix for arriving at 1 (2005) 1 SCC 882 (2013) 9 SCC 293H3 (2019) 18 SCC 191

the conclusion that the consent of the prosecutrix to have sexualrelationship with the accused was under the misconception of fact underSection 90 of the IPC and therefore the case of the prosecutrix fellunder the Clause - Secondly of Section 375 IPC. Ms. Indira Jaising hasalso relied upon various decisions of this Court in support of hersubmissions.

9. For the better appreciation of the submissions made by thelearned counsels for the parties, the relevant provisions contained inSection 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 ofthis 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 actknows, or has reason to believe, that the consent was given inconsequence of such fear or misconception; or Consent of insaneperson.—if the consent is given by a person who, from unsoundnessof mind, or intoxication, is unable to understand the nature andconsequence of that to which he gives his consent; or Consent ofchild.—unless the contrary appears from the context, if the consentis 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 anyother person; or (b) inserts, to any extent, any object or a part of the body, notbeing the penis, into the vagina, the urethra or anus of a woman ormakes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to causepenetration into the vagina, urethra, anus or any part of body ofsuch 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 ormakes her to do so with him or any other person, under the circumstances falling under any of the following sevendescriptions:- First- Against her will.

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ASecondly- Without her consent.

Thirdly- With her consent, when her consent has been obtainedby putting her or any person in whom she is interested in fear ofdeath or of hurt.

Fourthly- With her consent, when the man knows that he is notBher husband and that her consent is given because she believesthat he is another man to whom she is or believes herself to belawfully married.

Fifthly- With her consent when, at the time of giving such consent,by reason of unsoundness of mind or intoxication or theCadministration by him personally or through another of anystupefying or unwholesome substance, she is unable to understandthe nature and consequences of that to which she gives consent.

Sixthly- With or without her consent, when she is under eighteenyears of age.

DSeventhly- when she is unable to communicate consent.

Explanation 1- For the purposes of this section, “vagina” shallalso include labia majora.

Explanation 2.- Consent means an unequivocal voluntaryagreement when the woman by words, gestures or any form ofEverbal or non-verbal communication, communicates willingnessto participate in the specific sexual act:

Provided that a woman who does not physically resist to the actof penetration shall not by the reason only of that fact, be regardedas consenting to the sexual activity.

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Exception1. A medical procedure or intervention shall not constituterape.

Exception 2.- Sexual intercourse or sexual acts by a man with hisown wife, the wife not being under fifteen years of age, is notrape.”

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10. It would be germane to note that the basic principles of criminaljurisprudence warrant that the prosecution has to prove the guilt of theaccused beyond reasonable doubt by leading cogent evidence, however,considering the ethos and culture of the Indian Society, and consideringthe rising graph of the commission of the social crime – ‘Rape’, the H

courts have been permitted to raise a legal presumption as contained inSection 114A of the Indian Evidence Act. As per Section 114A, apresumption could be raised as to the absence of consent in certaincases pertaining to Rape. As per the said provision, if sexual intercourseby the accused is proved and the question arises as to whether it waswithout the consent of the woman alleged to have been raped, and if shestates in her evidence before the court that she did not consent, thecourt shall presume that she did not consent.

11. It cannot be gainsaid that a consent given by a person wouldnot be a consent as intended by any Section of the Indian Penal Code, ifsuch consent was given by the person under the fear of injury, or undera misconception of fact as contemplated in Section 90 IPC. Further,Section 375 also describes certain acts which if committed by the accusedunder 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 isalso required to be appreciated in the light of the Clauses – contained inSection 375 IPC, more particularly the Clauses - Thirdly, Fourthly andFifthly thereof, when the accused is charged for the offence of ‘rape’.The circumstances described in the said three Clauses are wider thanthe expression “misconception of fact”, as contemplated in Section 90of 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 anyperson in whom she is interested in fear of death or of hurt. As per theClause - Fourthly, with her consent, when the man knows that he is nother husband and that her consent is given because she believes that heis 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 ofgiving the consent, the prosecutrix by reason of unsoundness of mind orintoxication or the administration of stupefying or unwholesome substanceby the accused or through another, she is unable to understand the natureand consequences of that to which she gives consent. Thus, apart fromthe prosecutrix being under the misconception of fact as contemplatedin Section 90, her consent would be treated as ‘no consent’ if she hadgiven her consent under any of the circumstances mentioned in Section375 of IPC.

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A12. The exposition of law in this regard is discernible in variousdecisions of this Court, however the application of such law or of suchdecisions would depend upon the proved facts in each case, known aslegal evidence. The ratio laid down in the judgements or the law declaredby this Court do provide the guidelines to the judicial mind of the courtsto decide the cases on hand, but the courts while applying the law alsoBhave to consider the evidence before them and the surroundingcircumstances under which the alleged offences are committed by theaccused.

13. A reference of some of the decisions of this Court dealingwith the different dimensions and angles of the word ‘consent’ in theCcontext of Section 90 and Section 375 would be beneficial for deciding this appeal.

14. In Uday vs. State of Karnataka[4], the prosecutrix aged about19 years had given her consent for having a sexual intercourse with theaccused with whom she was deeply in love, and it was alleged by theDprosecution that the prosecutrix continued to meet the accused as theaccused had given her a promise to marry her on a later date. Theprosecutrix became pregnant and the complaint was lodged on failure ofthe accused to marry her. This Court while holding that under thecircumstances, the consent could not be said to have been given under aEmisconception of fact under section 90 of IPC, held in para 21 and 23 asunder :- “21. It therefore appears that the consensus of judicial opinion isin favour of the view that the consent given by the prosecutrix tosexual intercourse with a person with whom she is deeply in loveFon a promise that he would marry her on a later date, cannot besaid to be given under a misconception of fact. A false promise isnot a fact within the meaning of the Code. We are inclined toagree with this view, but we must add that there is no straitjacketformula for determining whether consent given by the prosecutrixto sexual intercourse is voluntary, or whether it is given under aGmisconception of fact. In the ultimate analysis, the tests laid downby the courts provide at best guidance to the judicial mind whileconsidering a question of consent, but the court must, in eachcase, consider the evidence before it and the surroundingcircumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the questionwhether the consent was voluntary, or was given under amisconception of fact. It must also weigh the evidence keeping inview the fact that the burden is on the prosecution to prove eachand every ingredient of the offence, absence of consent beingone of them.

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23. Keeping in view the approach that the court must adopt insuch cases, we shall now proceed to consider the evidence onrecord. In the instant case, the prosecutrix was a grown-up girlstudying in a college. She was deeply in love with the appellant.She was, however, aware of the fact that since they belonged todifferent castes, marriage was not possible. In any event theproposal for their marriage was bound to be seriously opposed bytheir family members. She admits having told so to the appellantwhen he proposed to her the first time. She had sufficientintelligence to understand the significance and moral quality ofthe act she was consenting to. That is why she kept it a secret aslong as she could. Despite this, she did not resist the overtures ofthe appellant, and in fact succumbed to them. She thus freelyexercised a choice between resistance and assent. She must haveknown the consequences of the act, particularly when she wasconscious of the fact that their marriage may not take place at allon account of caste considerations. All these circumstances leadus to the conclusion that she freely, voluntarily and consciouslyconsented to having sexual intercourse with the appellant, andher consent was 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 andother High Courts, further explained the observations made in Udaycase (supra) and observed as under:- “28. The first two sentences in the above passage need someexplanation. While we reiterate that a promise to marry withoutanything more will not give rise to “misconception of fact” withinthe meaning of Section 90, it needs to be clarified that arepresentation deliberately made by the accused with a view toelicit the assent of the victim without having the intention or A

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inclination to marry her, will vitiate the consent. If on the facts it isestablished that at the very inception of the making of promise,the accused did not really entertain the intention of marrying herand the promise to marry held out by him was a mere hoax, theconsent ostensibly given by the victim will be of no avail to theaccused to exculpate him from the ambit of Section 375 clausesecondly. This is what in fact was stressed by the Division Benchof the Calcutta High Court in the case of Jayanti Rani Panda[1984 Cri LJ 1535 : (1983) 2 CHN 290 (Cal)] which wasapprovingly referred to in Uday case [(2003) 4 SCC 46 : 2003SCC (Cri) 775 : (2003) 2 Scale 329] . The Calcutta High Courtrightly qualified the proposition which it stated earlier by addingthe qualification at the end (Cri LJ p. 1538, para 7) — “unless thecourt can be assured that from the very inception the accusednever really intended to marry her”. (emphasis supplied) In thenext para, the High Court referred to the vintage decision of theChancery Court which laid down that a misstatement of theintention of the defendant in doing a particular act wouldtantamount to a misstatement of fact and an action of deceit canbe founded on it. This is also the view taken by the Division Benchof the Madras High Court in Jaladu case [ILR (1913) 36 Mad453 : 15 Cri LJ 24] (vide passage quoted supra). By making thesolitary observation that “a false promise is not a fact within themeaning of the Code”, it cannot be said that this Court has laiddown the law differently. The observations following the aforesaidsentence are also equally important. The Court was cautiousenough to add a qualification that no straitjacket formula could beevolved for determining whether the consent was given under amisconception 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 propositionthat a promise to marry could never amount to a misconception offact. That is not, in our understanding, the ratio of the decision. Infact, there was a specific finding in that case that initially theaccused’s intention to marry cannot be ruled out.”

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16. In Deepak Gulati vs. State of Haryana[5], this Court gaveone more dimension of the word ‘consent’ by distinguishing ‘Rape’ and‘consensual sex’ and observed as under:

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“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 betweenrape and consensual sex and in a case like this, the court mustvery carefully examine whether the accused had actually wantedto marry the victim, or had mala fide motives, and had made afalse promise to this effect only to satisfy his lust, as the latterfalls within the ambit of cheating or deception. There is a distinctionbetween the mere breach of a promise, and not fulfilling a falsepromise. Thus, the court must examine whether there was made,at an early stage a false promise of marriage by the accused; andwhether the consent involved was given after wholly understandingthe nature and consequences of sexual indulgence. There may bea case where the prosecutrix agrees to have sexual intercourseon account of her love and passion for the accused, and not solelyon account of misrepresentation made to her by the accused, orwhere an accused on account of circumstances which he couldnot have foreseen, or which were beyond his control, was unableto marry her, despite having every intention to do so. Such casesmust be treated differently. An accused can be convicted for rapeonly if the court reaches a conclusion that the intention of theaccused was mala fide, and that he had clandestine motives.

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24. Hence, it is evident that there must be adequate evidence toshow that at the relevant time i.e. at the initial stage itself, theaccused had no intention whatsoever, of keeping his promise tomarry the victim. There may, of course, be circumstances, whena person having the best of intentions is unable to marry the victimowing to various unavoidable circumstances. The “failure to keepa promise made with respect to a future uncertain date, due toreasons that are not very clear from the evidence available, doesnot always amount to misconception of fact. In order to comewithin the meaning of the term “misconception of fact”, the factmust have an immediate relevance”. Section 90 IPC cannot becalled into aid in such a situation, to pardon the act of a girl inentirety, and fasten criminal liability on the other, unless the court AB

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Ais assured of the fact that from the very beginning, the accusedhad never really intended to marry her”.

17. Again in Dr. Dhruvaram Murlidhar Sonar Vs. State ofMaharashtra and others (supra), this Court interpreting the Section 90and the Clause – Secondly in Section 375 of IPC, observed as under: -

B“23. Thus, there is a clear distinction between rape and consensualsex. The court, in such cases, must very carefully examine whetherthe complainant had actually wanted to marry the victim or hadmala fide motives and had made a false promise to this effectonly to satisfy his lust, as the latter falls within the ambit of cheatingor deception. There is also a distinction between mere breach ofCa promise and not fulfilling a false promise. If the accused has notmade the promise with the sole intention to seduce the prosecutrixto indulge in sexual acts, such an act would not amount to rape.There may be a case where the prosecutrix agrees to have sexualintercourse on account of her love and passion for the accusedDand not solely on account of the misconception created by accused,or where an accused, on account of circumstances which he couldnot have foreseen or which were beyond his control, was unableto marry her despite having every intention to do. Such casesmust be treated differently. If the complainant had any mala fideintention and if he had clandestine motives, it is a clear case ofErape. The acknowledged consensual physical relationship betweenthe parties would not constitute an offence under Section 376IPC.”

18. Now, in the instant case, having regard to the statutory provisionsand their interpretations by this Court in various judgements, one may beFtempted to hold the appellant-accused guilty of the offence under Section376 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 thatit was fallacy on the part of the courts below to hold the appellant guiltyunder Section 376 IPC.

G19. After duly examining the record in the light of the submissionsmade by the learned counsels for the parties, following facts haveemerged: -

(i) Prosecutrix was a married woman having three children.(ii)Accused was staying in a tenanted premises situated inHfront of the house of the prosecutrix.

[BELA M. TRIVEDI, J.]

(iii) Though initially hesitant, the prosecutrix developed likingAfor the accused, and both started having sexual relationshipwith each other.

(iv) The prosecutrix delivered a male child on 28/10/2011 fromthe loin of the accused.

(v) The prosecutrix went to the native place of the accused in2012 and came to know that he was a married man havingchildren.

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(vi) The prosecutrix still continued to live with the accused inseparate premises.

(vii) The prosecutrix and her husband took divorce by mutualconsent in 2014 and thereafter prosecutrix permanently lefther three children with her husband.

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(viii) The prosecutrix lodged the complaint on 21[st] March, 2015alleging that she had consented for sexual relationship withthe accused as the accused had promised her to marry andsubsequently did not marry.

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20. The bone of contention raised on behalf of the respondents isthat the prosecutrix had given her consent for sexual relationship underthe misconception of fact, as the accused had given a false promise tomarry her and subsequently he did not marry, and therefore such consentwas 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 thatthere is a difference between giving a false promise and committingbreach of promise by the accused. In case of false promise, the accusedright from the beginning would not have any intention to marry theprosecutrix and would have cheated or deceited the prosecutrix by givinga false promise to marry her only with a view to satisfy his lust, whereasin case of breach of promise, one cannot deny a possibility that theaccused might have given a promise with all seriousness to marry her,and subsequently might have encountered certain circumstancesunforeseen by him or the circumstances beyond his control, whichprevented him to fulfill his promise. So, it would be a folly to treat eachbreach of promise to marry as a false promise and to prosecute a personfor the offence under Section 376. As stated earlier, each case woulddepend upon its proved facts before the court.

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21. In the instant case, the prosecutrix who herself was a marriedwoman having three children, could not be said to have acted under the H

Aalleged false promise given by the appellant or under the misconceptionof fact while giving the consent to have sexual relationship with theappellant. Undisputedly, she continued to have such relationship withhim 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 asB‘rape’ by the appellant, would be stretching the case too far. Theprosecutrix being a married woman and the mother of three childrenwas matured and intelligent enough to understand the significance andthe consequences of the moral or immoral quality of act she wasconsenting to. Even otherwise, if her entire conduct during the course ofCsuch relationship with the accused, is closely seen, it appears that shehad betrayed her husband and three children by having relationship withthe accused, for whom she had developed liking for him. She had goneto 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 impregnatedby the accused in the year 2011, and she gave birth to a male childDthrough the loin of the accused, she did not have any complaint againstthe accused of he having given false promise to marry her or havingcheated her. She also visited the native place of the accused in the year2012 and came to know that he was a married man having children also,still she continued to live with the accused at another premises withoutEany grievance. She even obtained divorce from her husband by mutualconsent in 2014, leaving her three children with her husband. It was onlyin the year 2015 when some disputes must have taken place betweenthem, that she filed the present complaint. The accused in his furtherstatement recorded under Section 313 of Cr.P.C. had stated that shehad filed the complaint as he refused to fulfill her demand to pay herFhuge amount. Thus, having regard to the facts and circumstances of thecase, it could not be said by any stretch of imagination that the prosecutrixhad given her consent for the sexual relationship with the appellant underthe misconception of fact, so as to hold the appellant guilty of havingcommitted rape within the meaning of Section 375 of IPC.G22. In that view of the matter, the accused deserves to be acquittedfrom the charges levelled against him. Of course, the direction for paymentof compensation given by the courts below shall remain unchanged asthe appellant had accepted the responsibility of the child, and has alsopaid the amount of compensation to the prosecutrix.

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23. At this juncture, it may be noted that during the course ofhearing it was brought to the notice of the Court that the deposition ofthe prosecutrix was recorded by the trial court in English language thoughshe had deposed in her vernacular language. In this regard, a referenceof Section 276 and Section 277 of Cr.P.C. needs to be made, whichreads as under: - “276 (1) In all trials before a Court of Session, the evidence ofeach witness shall, as his examination proceeds, be taken down inwriting either by the presiding Judge himself or by his dictation inopen Court or, under his direction and superintendence, by anofficer of the Court appointed by him in this behalf.

(2) Such evidence shall ordinarily be taken down in the form of anarrative, but the presiding Judge may, in his discretion, take down,or cause to be taken down, any part of such evidence in the formof question and answer.]

(3) The evidence so taken down shall be signed by the presidingJudge and shall form part of the record.

277. Language of record of evidence. In every case whereevidence is taken down under section 275 or section 276, - (a) if the witness gives evidence in the language of the Court, itshall 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 doso, a true translation of the evidence in the language of the Courtshall be prepared as the examination of the witness proceeds,signed by the Magistrate or presiding Judge, and shall form partof the record;

(c) where under clause (b) evidence is taken down in a languageother than the language of the Court, a true translation thereof inthe language of the Court shall be prepared as soon as practicable,signed by the Magistrate or presiding Judge, and shall form partof the record: Provided that when under clause (b) evidence istaken down in English and a translation thereof in the language ofthe Court is not required by any of the parties, the Court maydispense with such translation”.

24. We are apprised that in some of the trial courts the depositionsof the witnesses are not being recorded in their language and are beingrecorded in English language only, as may be translated by the Presiding A

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Aofficer. In our opinion, the evidence of the witness has to be taken downin the language of the court as required under Section 277 Cr.P.C. If thewitness gives evidence in the language of the court, it has to be takendown in that language only. If the witness gives evidence in any otherlanguage, it may, if practicable, be taken down in that language, and if itis not practicable to do so, a true translation of the evidence in the languageBof the court may be prepared. It is only when the witness gives evidencein English and is taken down as such, and a translation thereof in thelanguage of the court is not required by any of the parties, then the courtmay dispense with such translation. If the witness gives evidence in thelanguage other than the language of the court, a true translation thereofCin 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 languageof the court or in the language of the witness as may be practicable andthen get it translated in the language of the court for forming part of therecord. However, recording of evidence of the witness in the translatedDform in English language only, though the witness gives evidence in thelanguage of the court, or in his/her own vernacular language, is notpermissible. As such, the text and tenor of the evidence and the demeanorof a witness in the court could be appreciated in the best manner onlywhen the evidence is recorded in the language of the witness. Even otherwise, when a question arises as to what exactly the witness hadEstated in his/her evidence, it is the original deposition of the witnesswhich has to be taken into account and not the translated memorandumin English prepared by the Presiding Judge. It is therefore directed thatall courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of Cr.PC.F26. For the reasons stated above, the impugned judgments andorders 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 againsthim and is directed to be set free forthwith. The appeal stands allowedaccordingly.G

Divya Pandey(Assisted by : Bhavyata Kapoor and Roopanshi Virang, LCRAs)

Appeal allowed.

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