REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1068 OF 2001

State of U.P. …Appellant

Versus

Manoj Kumar Pandey …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the order of a Division Bench of the

Allahabad High Court dismissing the appeal filed by the State.  Challenge in

the appeal was to the judgment of the learned Special Additional Sessions

Judge, Fatehpur in Sessions Trial No. 566 of 1996.  The respondent faced

trial for alleged commission of offences punishable under Sections 376 and

323 of the Indian Penal Code, 1860 (in short the ‘IPC’).  The High Court

dismissed  the  appeal  in  very  cryptic  manner  holding  that  there  was

possibility of the prosecutrix being a consenting party as she was above 16

years of age.

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2. Learned counsel for the appellant-State submitted that the manner of

disposal of the Government appeal needs much to be desired.  Trial court

did not even record any finding that the prosecutrix was a consenting party

to the sexual intercourse.  It went on some hypothetical questions regarding

alleged delay in lodging FIR.  The trial court concluded that since the girl

was more than 16 years of age consent had to be presumed.  The High Court

concurred with the view and disposed of the appeal which is as follows:

“Heard learned A.G.A. and perused the judgment of the trial court.   The age of the girl was found to be above  16  years  and  further  finding  is  that  from  the circumstances  appearing   in  the  case the possibility of the prosecutrix  being a consenting party was not  ruled out.   The  reasons  in  support  of  order  of  acquittal  are plausible and cogent.  No sufficient ground is made out for interference in the order of acquittal.

Leave to appeal is refused.”

3. The  approach  of  the  trial  court  and  the  High  Court  is  clearly

unsustainable.  Merely because the victim was more than 16 years of age as

held  by  the  trial  court  that  cannot  be  a  ground  to  hold  that  she  was

consenting party.  No evidence was led to show such consent.  Apart from

that normal rule regarding the duty of the prosecution to explain the delay in

lodging FIR and the lack of prejudice and/or prejudice caused because of

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such delayed lodging of FIR does not per se apply to cases of rape.  This has

been  the  consistent  view of  this  court.   The  High  Court  was,  therefore,

clearly wrong  in  disposing  of  the  appeal  in  such  cryptic  manner.  In  the

circumstances  of  the  case,  we set  aside the order  of the High Court  and

remit the matter to it for fresh hearing so that it can consider the matter and

hear in detail and dispose of the same by a reasoned judgment.  Whatever

has been expressed by us supra is  only for the purpose of coming to the

conclusion that the manner of disposal of the appeal is not proper.

4. The appeal is allowed to the aforesaid extent.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

……………………………………J. (D.K. JAIN)

New Delhi:  November 7, 2008

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