The bench of Justices Ajay Rastogi and Bela M. Trivedi observed that it would be a folly to treat every breach of promise to marry as a false promise and to prosecute a person for the offense of rape under section 376 of Indian Penal Code.

Sr. Advocate Indira Jaisingh was appointed Amicus Curiae in the case who represented the prosecutrix.

The Court interpreted the term consent in the following words:-

"It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime – ‘Rape’, the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

The bench also considered the exposition of law in this regard and relied upon the decision of the Apex Court in the case of Uday Vs. State of Karnataka reported in (2003) 4 SCC 46 wherein it is decided that the test is to find out if the consent given by the prosecutrix is voluntary or whether it was under misconception of fact.

Noting the facts of the case the court observed that prosecutrix was residing in a tenanted premises at C-1/3/5, Sanjay Enclave, Uttam Nagar, Delhi with her husband and three children in the year 2009. The accused was also residing in a tenanted premises which was situated in front of her house. On 21.03.2015, the prosecutrix lodged a complaint against the accused alleging inter alia that the accused was persuading her by stating that her husband was not earning sufficient income and that he (the accused) had a good job and he would maintain her according tohis status. The accused also assured her that he would solemnize marriage (nikah) with her. Thereafter, the accused with an intention to have illicit intercourse with her, used to call her at various places, as a result thereof, she was impregnated in the year 2011. She further alleged that the accused persuaded the prosecutrix that after the delivery of child, he would marry her. He also assured her that he was not a married man and after the marriage, he would take her to his native place. In the year 2012, the accused enticed her away in another rented premises at Kapashera Border Nathu Mal Building and continued to have illicit relationship with her. After sometime the accused vacated the said rented premises with a false excuse that his parents were severely ill and he had to visit his native place. He told the prosecutrix to take shelter in a shelter home along with the minor child Naman. He also forced her to take divorce from her husband. The prosecutrix had further alleged in the complaint that the accused had lied to her that he had gone to his native place, but in fact he had not gone, which she came to know when she visited the call center where the accused was working. When she made hue and cry at his place of working, he assured her that he would soon marry her. In the year 2012, she visited the native place of the accused and came to know that he was already married and had children also. The parents of the accused refused to keep her there. Thereafter, also the accused kept on assuring her to marry her but did not marry. Hence, the complaint was filed. The said complaint was registered as the FIR No.412/2015 at Police Station Bindapur, District South West, Delhi on 21.03.2015 against the accused for the offence under Section 376 of the Indian Penal Code

While acquitting the accused Tthe Court observed as under:-

"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 enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. 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 accused in his further statement recorded under Section 313 of Cr.P.C. 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."

Case Details:-

CRIMINAL APPEAL No. 257 OF 2023
NAIM AHAMED .......APPELLANT
VERSUS
STATE (NCT OF DELHI) ......RESPONDENT

Appearances of advocates:-

For Petitioner(s) 
Ms. Indira Jaisingh, Sr. Adv. (AC)
Mr. Parasnath Singh, Adv.
Mr. Srisatya Mohanty, Adv.
Mr. Ravinder Singh, Adv.
Ms. Raveesha Gupta, Adv.
Ms. Mantika Haryani, Adv.
Mr. Sanjeev Kaushik, Adv.
Mr. Shreyas Awasthi, Adv.
Mr. Devvrat Singh, Adv.
Mr. Rohin Bhatt, Adv.
Ms. Muskan Surana, Adv.
Ms. Astha Sharma, (AOR)
Mr. Raj Kishor Choudhary, AOR
 Mr. Shakeel Ahmed, Adv.
 Mr. Anupam Bhati, Adv.
 Mr. Rizwan Ahmed, Adv.
 Mr. Amir Kaleem, Adv.
 Mr. Vikramjeet Singh Ranga, Adv.
 Mr. Nakul Chaudhary, Adv.
 Mr. Waseem Akhatar Khan, Adv.

For Respondent(s) 
Mr. K.L. Janjani, Adv.
Mr. Ketan Paul, Adv.
Mohd. Akhil, Adv.
Ms. Deepabali Dutta, Adv.
Mr. T.S. Sabarish, Adv.
Mr. Gurmeet Singh Makker, AOR