REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 287 OF 2007

State of U.P.  …Appellant

Vs.

Munshi  …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  this  appeal  is  by  the  State  of  U.P.

questioning  the  correctness  of  the  judgment  rendered  by  a

learned Single Judge of the Allahabad High Court, Lucknow

Bench,  Lucknow.   The  learned  Additional  Sessions  Judge,

Hardoi   in Sessions Trial No.455 of 1985 convicted the two

respondents  for offence punishable under Sections 363, 366

and 376 of the Indian Penal Code, 1860 (in short the ‘IPC’).

The  High  Court  by  the  impugned  judgment  set  aside  the

conviction and directed acquittal.    

2. The factual position need not be narrated in view of the

fact that the High Court’s order, to say the least, is not only

cryptic  but  also  non-reasoned.   The  High  Court  for  the

purpose of directing acquittal only observed as follows:

“I have heard the learned counsel for the parties at length and I have gone through the record.  

My  attention  has  been  drawn  by  the learned  counsel  for  the  appellants  to  the medical evidence on record, which shows that the girl in question was aged about 17 years. She  might  be  thus  of  19  years  as  well.  No injury internal  or external  was found on her body and she was used to sexual intercourse. The girl in question thus appears to be major and was thus a consenting party and there is no reliable evidence on record to show that she was kidnapped by the accused persons or was raped. The girl in question was returned home safely  on  the  same  day.  The  learned  Court below was not thus justified in believing the prosecution  theory  and  convicting  the appellants.”

3. Learned counsel  for the appellant-State highlighted the

desirability  of  recording  reasons,  particularly,  when  the

analysis of the evidence made and the conclusions arrived at

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by the trial Court in detailed manner are sought to be upset

by the High Court.  

4. Learned  counsel  for  the  respondent  on  other  hand

submitted that though elaborate reasons have not been given,

the High Court has found the conclusions of the trial Court to

be erroneous.  

5. Reasons  introduce  clarity  in  an  order.  On  plainest

consideration of justice, the High Court ought to have set forth

its  reasons,  howsoever  brief,  in  its  order  indicative  of  an

application  of  its  mind,  all  the  more  when  its  order  is

amenable  to  further  avenue  of  challenge.  The  absence  of

reasons  has  rendered  the  High  Court’s  judgment  not

sustainable.

6. Even in respect of administrative orders Lord Denning,

M.R. in  Breen v.  Amalgamated Engg. Union (1971) 1 All ER

1148, observed:  “The  giving  of  reasons  is  one  of  the

fundamentals  of  good  administration.”  In  Alexander

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Machinery (Dudley) Ltd. v.  Crabtree 1974 ICR 120 (NIRC) it

was observed: “Failure to give reasons amounts to denial of

justice.”  “Reasons  are  live  links  between  the  mind  of  the

decision-taker to the controversy in question and the decision

or conclusion arrived at.” Reasons substitute subjectivity by

objectivity. The emphasis on recording reasons is that if the

decision reveals the “inscrutable face of the sphinx”, it can, by

its  silence,  render  it  virtually  impossible  for  the  courts  to

perform  their  appellate  function  or  exercise  the  power  of

judicial review in adjudging the validity of the decision. Right

to reason is an indispensable part of a sound judicial system;

reasons at least sufficient to indicate an application of mind to

the matter before court. Another rationale is that the affected

party can know why the decision has gone against him. One of

the  salutary  requirements  of  natural  justice  is  spelling  out

reasons for the order made; in other words, a speaking-out.

The “inscrutable face of the sphinx” is ordinarily incongruous

with a judicial or quasi-judicial performance.

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7. In  the  instant  case,  let  alone  any  discussion  of  the

evidence, the High Court has not even indicated any basis for

departing from the conclusions of the trial Court.

8. Even  assuming  that  the  victim  was  previously

accustomed to sexual intercourse, that is not a determinative

question.  On the contrary, the question which was required

to be adjudicated was did the accused commit rape on the

victim  on  the  occasion  complained  of.  Even  if  it  is

hypothetically accepted that the victim had lost her virginity

earlier, it did not and cannot in law give licence to any person

to rape her.  It is the accused who was on trial and not the

victim.  Even  if  the  victim  in  a  given  case  has  been

promiscuous in her sexual behaviour earlier, she has a right

to  refuse  to  submit  herself  to  sexual  intercourse  to  anyone

and everyone because she is not a vulnerable object or prey

for being sexually assaulted by anyone and everyone.  

9. It is well settled that a prosecutrix complaining of having

been a victim of the offence of rape is not an accomplice after

the crime. There is no rule of law that her testimony cannot be

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acted upon without corroboration in material particulars. She

stands at a higher pedestal than an injured witness. In the

latter case, there is injury on the physical form, while in the

former  it  is  both  physical  as  well  as  psychological  and

emotional.  However,  if  the court of  facts finds it  difficult  to

accept the version of the prosecutrix on its face value, it may

search  for  evidence,  direct  or  circumstantial,  which  would

lend  assurance  to  her  testimony.  Assurance,  short  of

corroboration as understood in the context of an accomplice

would do.  

10. In our view, the High Court should re-hear the matter

and  dispose  of  the  appeal  by  a  reasoned  judgment.   We,

therefore, set aside the impugned judgment and remand the

matter to the High Court for fresh disposal. We make it clear

that we have not expressed any opinion on the merits of the

case.  

11. The appeal is allowed.  

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……..…….............................J. (Dr. ARIJIT PASAYAT)

……..… ….............................J.

(Dr. MUKUNDAKAM SHARMA) New Delhi, August 28, 2008

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