State of U.P. Vs.
Munshi & Etc.  INSC 1454 (28 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 287 OF 2007 State
of U.P. ...Appellant Munshi ...Respondent
Dr. ARIJIT PASAYAT,
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.
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
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."
counsel for the appellant-State highlighted the desirability of recording
reasons, 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.
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.
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.
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 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.
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
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.
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 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.
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.
appeal is allowed.
(Dr. ARIJIT PASAYAT)
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