Summary
A married woman with three children had a relationship with a neighbour from about 2009 and bore his child in 2011. In 2012 she learnt he was married, yet she went on living with him and divorced her husband in 2014. In 2015 she complained that he had obtained her consent by a false promise of marriage. The trial court convicted him of rape and the Delhi High Court reduced the sentence. The Supreme Court acquitted him. A breach of promise differs from a false promise made from the outset, and this mature woman consented knowingly over five years, not under any misconception of fact. The compensation order stood, and the Court directed that evidence be recorded as Section 277 CrPC requires.
Issues
- Whether the consent of a married adult woman to a sexual relationship continued over about five years was given under a misconception of fact induced by a false promise of marriage, so as to make the accused guilty of rape under Section 375 secondly read with Section 90 IPC.
- Whether a witness's evidence may be recorded only in an English translation by the presiding officer when the witness deposes in the language of the court or a vernacular language.
Provisions considered
- Sections 90, 375 and 376, Indian Penal Code, 1860Consent is vitiated if given under misconception of fact, and the circumstances in clauses thirdly to fifthly of Section 375 are wider than Section 90; following Uday, Deelip Singh, Deepak Gulati and Dhruvaram Sonar, a false promise made at inception with no intention to marry vitiates consent, but a mere breach of a promise later unfulfilled does not. (¶¶ 9, 11, 14, 15, 16, 17, 20)
- Section 114A, Indian Evidence Act, 1872The presumption of absence of consent where intercourse is proved and the woman says she did not consent is noted, but on the proved facts the consent was real. (¶ 10)
- Sections 276 and 277, Code of Criminal Procedure, 1973Evidence must be taken down in the language of the court, or if practicable in the witness's language with a true translation prepared; recording only an English translation by the presiding officer when the witness deposes in another language is impermissible, as the original deposition governs. (¶¶ 23, 24, 25)
Held
- It would be folly to treat every breach of a promise to marry as a false promise and prosecute it as rape; each case turns on its proved facts. The prosecutrix, a mature married mother of three, continued the relationship after the child's birth and after learning in 2012 that the accused was married, divorced her husband in 2014 and complained only in 2015; she could not be said to have consented under a misconception of fact, so the conviction under Section 376 IPC cannot stand. (¶¶ 18, 19, 20, 21, 22)
- The direction to pay Rs. 5 lakh compensation remains, since the accused accepted responsibility for the child and has paid it. (¶¶ 22, 26)
- All courts recording evidence must comply with Section 277 CrPC so that the text, tenor and demeanour of a witness's evidence can be appreciated from the original deposition. (¶¶ 24, 25)
Result
Criminal Appeal No. 257 of 2023 allowed; judgments of the Delhi High Court dated 30.09.2016 in Crl. A. No. 46 of 2016 and of the Sessions Court in S.C. No. 67 of 2015 set aside except the direction to pay compensation to the prosecutrix; the appellant acquitted and directed to be set free forthwith.