Naim Ahamed v. State (NCT of Delhi)

[2023] 1 SCR 1061

Court: Supreme Court of India (Criminal Appellate Jurisdiction)
Case: Criminal Appeal No. 257 of 2023
Decided: 30 January 2023
Bench: Ajay Rastogi, Bela M. Trivedi (judgment by Bela M. Trivedi, J.)
Citation: [2023] 1 SCR 1061
Provisions: IPC s. 375 (rape; Secondly: without her consent) = BNS s. 63(ii)
IPC s. 90 (consent given under fear or misconception) = BNS s. 28(a)
BNS s. 69 (sexual intercourse by deceitful means or by a promise to marry without any intention of fulfilling it, not amounting to rape; up to 10 years and fine; no IPC equivalent)
Indian Evidence Act, 1872 s. 114A (presumption as to absence of consent); now Bharatiya Sakshya Adhiniyam, 2023, s. 120 (owner-supplied equivalence)

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Headnote

Sensitive matter. Sexual-offence matter (rape, IPC s. 375 and 376). The complainant and the minor child are not named anywhere in this case file.

Rape · BNS s. 69 · IPC s. 375 and s. 90 (BNS s. 63(ii) and s. 28(a)) · Promise to marry: false promise and breach of promise · Consent under misconception of fact

The case, in the Court's words

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 fine of Rs.50,000/-, in default thereof to suffer further imprisonment for a period of one year. [para 3]

Held

It cannot be gainsaid that a consent given by a person would not be a consent as intended by any Section of the Indian Penal Code, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90 IPC. Further, Section 375 also describes certain acts which if committed by the accused under the circumstances mentioned therein, as the commission of ‘Rape’, even though committed with the consent of the prosecutrix. [para 11]
In our opinion, the expression “misconception of fact” contained in Section 90 IPC is also required to be appreciated in the light of the Clauses – contained in Section 375 IPC, more particularly the Clauses - Thirdly, Fourthly and Fifthly thereof, when the accused is charged for the offence of ‘rape’. The circumstances described in the said three Clauses are wider than the expression “misconception of fact”, as contemplated in Section 90 of IPC. [para 11]
The exposition of law in this regard is discernible in various decisions of this Court, however the application of such law or of such decisions would depend upon the proved facts in each case, known as legal evidence. The ratio laid down in the judgements or the law declared by this Court do provide the guidelines to the judicial mind of the courts to decide the cases on hand, but the courts while applying the law also have to consider the evidence before them and the surrounding circumstances under which the alleged offences are committed by the accused. [para 12]
[...] there is a difference between giving a false promise and committing breach of promise by the accused. 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 the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas 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. So, 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 under Section 376. [para 20]

Result

For the reasons stated above, the impugned judgments and orders passed by the High Court and the Sessions Court are set aside, except the direction for the payment of compensation to the prosecutrix. The appellant-accused is acquitted from the charges levelled against him and is directed to be set free forthwith. The appeal stands allowed accordingly. [para 26]

Editorial note: subsequent treatment

Cited in Mahesh Damu Khare v. State of Maharashtra (2024 INSC 897), which follows it, and in 2024 INSC 181 and 2025 INSC 457 (Jaspal Singh Kaural v. State of NCT of Delhi). The extracts above are the Court's own paragraphs, not quoted passages.

The headnote consists of extracts from the Court's judgment, selected by The Daily Bench for convenience. The selection is not part of the judgment, is not a law report and should not be cited. It may contain errors; rely on the official judgment. Library reference TDB-LL BNS-69/04 is our own cataloguing label and is not a citation.