NEW DELHI: The Supreme Court has said that 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 of rape under Section 376 of the Indian Penal Code.
"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," a bench of Justices Ajay Rastogi and Bela M Trivedi said.
The top court acquitted Naim Ahamed, who was sentenced by the trial court to 10 years imprisonment of rape of a married woman with three children on the false promise of marriage.
The court pointed out 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 intelligent intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to, the bench said.
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 bench added.
The judgement, authored by Justice Trivedi also noted that the deposition of the prosecutrix was recorded by the trial court in English language though she had deposed in her vernacular language. It emphasised that the evidence of the witness has to be taken down in the language of the court as required under Section 277 CrPC.
The bench said the court is 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 CrPC. 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,” Justice Trivedi wrote.
The bench further said 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. “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," the bench said.
It further added 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.
“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….It is therefore directed that all courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of CrPC,” the bench said.