Holding

An appellate order lacking reasons is unsustainable; therefore, the High Court’s acquittal must be set aside and the case remanded for a reasoned judgment.

Summary

The trial court convicted two accused under Sections 363, 366 and 376 of the Indian Penal Code for raping a girl aged about 17 years. The Allahabad High Court set aside the conviction, acquitting the accused on the basis that the girl was a consenting adult and that there was no reliable evidence of kidnapping or rape. The State of Uttar Pradesh appealed, contending that the High Court’s order was unreasoned and therefore could not be sustained. The Supreme Court held that an appellate order must contain reasons; the absence of any reasoning rendered the High Court’s judgment unsustainable and it must be set aside. The Court also clarified that a victim’s prior sexual experience does not amount to consent and that a prosecutrix’s testimony can be acted upon without corroboration. Consequently, the appeal was allowed and the matter was remanded to the High Court for a fresh, reasoned disposal.

Issues considered

Whether the High Court's acquittal order without recording reasons is valid.
Whether the victim's prior sexual experience can be taken as consent to negate the offence of rape.
Whether the testimony of a prosecutrix in a rape case requires corroboration.

Legislation cited

Indian Penal Code, 1860s. 363, s. 366, s. 376

Subjects

raperight to reasonjudicial reviewacquittal without reasonsprosecutrix testimonyconsentIPC sections 363, 366, 376natural justice

Judgment

[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
898 SUPREME COURT REPORTS [2008] 12 S.C.R.

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 1'---.
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
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
STATE OF U.P. v. MUNSHI 899

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
f ;..
/
on the merits of the case. (Para - 10)
Case Law Reference
(1971) 1 All ER 1148 referred to Para - 6
(1974) ICR 120 (NIRC) referred to Para - 6 G
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
900 SUPREME COURT REPORTS [2008] ·12 S.C.R.
~-

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
aside the conviction and directed acquittal.
D
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
STATE OF U.P. v. MUNSHI 901
[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
has found the conclusions of the trial Court to be erroneous. B
-~·

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
has gone against him. One of the salutary requirements of natural
-4. 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
902 SUPREME COURT REPORTS [2008] 12 S.C.R.

¥
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
be adjudicated was did the accused commit rape on the victim
B 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
D
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
case, there is injury on the physical form, while in the former it
E 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
matter to the High Court for fresh disposal. We make it clear
G
that we have not expressed any opinion on the merits of the +-- ~
case.

11. The appeal is allowed.

S.K.S. Appeal allowed.
H