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 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 Presiding Judge – All courts while recording the evidence of the witnesses, shall duly comply with the provisions of s.277.