Original deposition of the witness has to be taken into account and not the translated memorandum

The Supreme Court bench including Justices Ajay Rastogi and Bela M. Trivedi ordered the trial judges to record the evidence of the witness in the language of the court or the witness. They further added that “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.” 

In the Naim Ahamed vs State (NCT of Delhi) case, 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 had a good job and would maintain her according to his status. The accused also assured her that he would solemnize marriage with her whereas he used to call her at various places with the intention to have illicit intercourse with her, as a result thereof, she was impregnated. 

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The Sessions Court while holding the appellant-accused guilty for the offence under Section 376 of IPC had sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs.50,000, in default thereof to suffer further imprisonment for a period of one year.  They further directed the appellant to pay compensation of Rs.5,00,000 to the prosecutrix to enable her to maintain herself as well as the minor child. The High Court in the appeal filed by the appellant modified the order of sentence passed by the Sessions Court, by reducing the term of sentence to 7 years from 10 years. The case was then presented before the Top Court against the judgment and order passed by the Delhi High Court.

The Apex Court highlighted that it was a fallacy on the part of the courts to hold the appellant guilty under Section 376 IPC. 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 consent to have a sexual relationship with the appellant. In this context, the bench highlighted that “A false promise is not a fact within the meaning of the Code.” The bench further mentioned that “Having regard to the facts and circumstances of the case, it could not be said by any stretch of the imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact”. Therefore, holding the appellant guilty of committing rape within the meaning of Section 375 of IPC. 

Moreover, the Supreme Court highlighted that 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 translated into the language of the court for forming part of the record. They further urged that “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.” 

The impugned judgments and orders passed by the High Court and the Sessions Court were set aside, except the direction for the payment of compensation to the prosecutrix. The appellant-accused was acquitted of the charges leveled against him and the appeal was allowed.

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