STATE OF U.P. versus MANOJ KUMAR PANDEY

Citation: [2008] 15 S.C.R. 903 · Decided: 07-11-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

[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 
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the victim was· more than 16 years of age, that cannot be a 
ground to hold that she was consenting party, particularly when 
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 
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.,.. 
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 
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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 
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-
E 
A] 
. 
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 
F No. 1982 of 1998. 
G 
S.N. Pandey, Chandra Prakash Pandey for the Appellant. 
P .K. Jain, P.K. Goswami and K.K. Mishra for the · 
Respondent. 
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 
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~I . 
J 
STATE OF U.P. v. MANOJ KUMAR PANDEY 
905 
I 
[DR. ARIJIT PASAYAT, J.] 
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 
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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 c 
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 D 
which is as follows: 
"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. 

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