Holding

Age alone does not establish consent; lack of evidence of consent requires the prosecution to prove it, and delay in filing the FIR is not fatal in rape cases.

Summary

The State of Uttar Pradesh appealed the acquittal of Manoj Kumar Pandey, who was charged under IPC sections 376 (rape) and 323 (voluntarily causing hurt). The trial court had acquitted him on the basis that the victim, being over 16 years old, was presumed to have consented, and the High Court upheld this view in a terse order. The Supreme Court held that a victim’s age alone, even if above 16, does not establish consent where no evidence of such consent is adduced, and that the prosecution’s duty to explain any delay in filing the FIR does not automatically render the case prejudiced in rape matters. Consequently, the Court set aside the High Court’s order and remitted the matter for a fresh, reasoned hearing. The appeal was allowed, restoring the State’s challenge to the acquittal.

Issues considered

The mere fact that the prosecutrix is above 16 years of age can be taken as a presumption of consent in a rape case.
Whether the prosecution must explain the delay in lodging the FIR and whether such delay per se causes prejudice in rape prosecutions.
The propriety of the High Court’s cryptic disposal of the State’s appeal.

Legislation cited

Indian Penal Code, 1860s. 323, s. 376

Subjects

rapeconsentage of victimdelay in FIRburden of proofcriminal procedureappealacquittalhigh court orderreasoned judgment

Judgment

[2008] 15 S.C.R. 903
I''
STATE OF U~P. A
v.
MANOJ KUMAR PANDEY
(Criminal Appeal No. 1068 of 2001)
NOVEMBER 7, 2008
B
i -'(' [DR. ARIJIT PASAYAT, C.K.THAKKER AND
D.K. JAIN, JJ.]

Penal Code, 1860 - ss.376 and 323:
c
Rape - Acquittal - Appeal against, disposed of by High .
Court in cryptic manner - High Court dismissed appeal
against acquittal of accused on ground that there was
possibility of the victim being a consenting party as she was

- ;

~ -.,.. above 16 years of age - On appeal, held: Merely because
the victim was· more than 16 years of age, that cannot be a
ground to hold that she was consenting party, particularly when
D

no evidence was Jed to show such consent - Manner of
disposal of appeal by High Court was not proper - Matter
remitted back to High Court.
E
Rape - Delay in lodging FIR - Effect of - Held: Normal
rule regarding duty of prosecution to explain delay in lodging
-4 ---.... FIR and lack of prejudice and/or prejudice caused, because
of such delayed lodging of FIR; does not per se apply to
cases of rape. F
____.. According to the prosecution, Respondent ,
committed offences punishable under ss.376 and 323
-i IPC. The Trial co·urt went into the issue of alleged delay
in lodging of FIR. It concluded that since the prosecutrix
was more than 16 years of age, her consent had to be G 1

.,.. presumed and on that ground acquitted the Respondent.
The High Court dismissed appeal filed by the1 State
holding that there was possibility of the prosecutrix being 1

903 H
904 SUPREME COURT REPORTS [2008] 15 S.C.R.

A a consenting party as she was above 16 years of age.
Hence· the present appeal.

Allowing the appeal, the Court
HELD: The approach of the Trial Court and the High
B 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 I
\.-
party. No evidence was led to show such consent. Apart
from that normal rule regarding the duty of -the
C prosecution to explain the delay in lodging FIR and the
lack of prejudice and/or prejudice caused because of
delayed lodging of FIR does not per se apply to cases of
rape. The High Court was, therefore, clearly wrong in
disposing of the appeal in such cryptic manner. In the
D' circumstances of the case, the order of the High Court
is set aside and the matter is remitted to it for fresh
hearing so that it can consider the matter and dispose of
the same by a reasoned judgment. [Para 3] [905-G-H; 906-
A] .
E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No ..1068 of 2001.

·From the final Judgment and Order dated 12.2.2001 of the
High Court of Judicature at Allahabad in Government Appeal
~I
.
F No. 1982 of 1998.

S.N. Pandey, Chandra Prakash Pandey for the Appellant.

P .K. Jain, P.K. Goswami and K.K. Mishra for the ·
Respondent.
G
The Judgment of the Court was delivered by

DR. ARIJIT PASA VAT, 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
H appeal was to the judgment of the learned Special Additional
J
STATE OF U.P. v. MANOJ KUMAR PANDEY 905
[DR. ARIJIT PASAYAT, J.]
I
Sessions Judge, Fatehpur in Sessions Trial No. 566 of 1996. A
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 B
. _,,,,- 16 years of age .

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.
c
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: D

"Heard learned AG.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 E
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.
F
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 G
r 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
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 H
906 SUPREME COURT REPORTS [2008] 1.5 S.C.R.

A 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.
B 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.

C B.B.B. Appeal allowed ..