[2008) 12 S.C.R. 897

-,,,_

STATE OF U.P.

A v.

MUNSHI (Criminal Appeal No. 287 of 2007)

AUGUST 28, 2008 B

~·

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860; Ss. 363, 366 and 376: "

Rape - Conviction - Accused acquitted by High Court c on ground that prosecutrix was a consenting party and no reliable evidence available on record to show commission of rape by the accused - Correctness of - Held: In absence of reasons in the judgment, appellate Court cannot perform their function properly/exercise power of judicial review - Absence p of reasons rendered the judgment of the High Court not ..-+- sustainable - Moreover, even assuming that prosecutrix previously accustomed to sexual intercourse, she has a right to refuse to submit herself to sexual intercourse - Her testimony could be acted upon without corroboration of E material particulars - High Court directed to rehear the matter

Trial Court found the accused-respondents guilty of committing the offence of rape punishable u/ss. 363, 366 and 376 IPC. The High Court acquitted the convicts on

' . j.- the ground that the prosecutrix was a consenting party F

and there was no reliable evidence to show that she was kidnapped and raped by the accused persons. Hence the present appeal.

Appellant-State contended that recording of reasons G by the High Court in the judgment is necessary, ..

particularly, when the analysis of the evidence made and the conclusions arrived at by the trial Court in detailed manner are sought to be upset by the High Court. ·

897 H

A Allowing the appeal, the Court

....

HELD: 1.1 Reasons introduce clarity in an order. On plainest consideration Qf justice, the High Court ought to have set forth its reason~, howsoever brief, 'in its order indicative of an application of its mind, all the more when 8 its order is amenable to" further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. (Para - 5) [901 8-C]

Breen vs. Amalgamated Engg. Union (1971) 1 All ER c 1148 and Alexander machinery (Dudley) Ltd. vs. Crabtree

(1974) ICR 120 (NIRC) - referred to.

1.2 Reasons substitute subjectivity'by objectivity. The

emphasi~ on recording reasons is . that if the decision reveals the "inscrutable face of the sphinx", it can, by its D silence, render it virtually impossible for the Courts to

1'---.

perform their appellate function or exercise the power of --.. judicial review in adjudging the validity of the decision. + (Para - 6) [901 E, F]

1.3 Right to reason is an indispensable part of a E sound judicial system; reasons at least sufficient to indicate an application of mind to the matter befors 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 F the order made. (Para - 6) [901 F, G]

2.1 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.

G (Para - 7) [901-H 902:-A]

 2.2 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 H accused commit rape on the victim on the occasion

f ;..

complained of. Even if it is hypothetically accepted that A 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 B to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. (Para ..,.. 8) [902 A, B,~]

2.3 It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an C accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. However, if the court of facts finds it difficult to accept the version of the prosecutrix D 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. (Para - 9) (902 D, E, F] E

2.4 The High Court should re-hear the matter and dispose of the appeal by a reasoned judgment. (Para - 10)

3. It is clarified that no opinion has been expressed F on the merits of the case. (Para - 10)

Case Law Reference

(1971) 1 All ER 1148

(1974) ICR 120 (NIRC)

referred to

referred to

Para - 6

Para - 6

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 287 of 2007

From the final Judgment and Order dated 28.3.2003 of

the High Court of Judicature at Allahabad, Lucknow Bench H

~- A Lucknow in Crimin_al Appeal Nos. 317 and 327 of 1987

R. Dash, Anuvrat Sharma, Fuzail Khan, Sahdev Singh and Alka Sinha for the Appellant.

Sakesh Kumar for the Respondent.

B The Judgment of the Court was delivered by

~ 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 c 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

D 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: E "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

F 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

G reliable evidence on record to show that she was kidnapped by the accusi:; d 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 appe:lants."

i-1

3. Learned counsel for the appellant-State highlighted the

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[DR. ARIJIT PASAYAT, J.]

desirability of recording reasons, particularly, when the analysis of A the evidence made and the conclusions arrived at 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 B 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 c 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 EH' 1148, observed: "The giving of reasons is one of the D

...... fundamentals of good administration." In Alexander 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 E 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

I function or exercise the power of judicial review in adjudging F 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

-4. has gone against him. One of the salutary requirements of natural G

~ 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.

7. In the instant case, let alone any discussion of the; evidence, the High Court has not even indicated any basis tori H

¥ A 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

B 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 ", ti...-

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 c earlier, she has a right to refuse to submit herself to sexual

intercourse to anyone and everyone because she is not a j. 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 + acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter

E 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 F the context of an accomplice would do. t- ..

10. In our view, the High Court should re-hear the matter and dispose of the appeal by a reasoned judgment. \fl/e, therefore, set aside the !mpugned judgment and remand the

G 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.

H S.K.S.

Appeal allowed.