2008 Supreme(SC) 1644

2008(8) Supreme 404
SUPREME COURT OF INDIA
Dr. Arijit Pasayat, C.K. Thakker and D.K. Jain, JJ.
State of U.P. — Appellant
versus
Manoj Kumar Pandey — Respondent
Criminal Appeal No. 1068 of 2001
Decided on : 07-11-2008

IMPORTANT POINT
Merely because the victim is more than 16 years of age that cannot be a ground to hold that she was consenting party in an offence of rape.

Headnote:Indian Penal Code, 1860 – Sections 376 and 323 – Prosecution of respondent for alleged commission of offences punishable under Sections 376 and 323 of IPC – Acquittal by trial court holding that since girl was more than 16 years of age consent had to be presumed – State appeal – Dismissed by High Court concurring with view of Trial Court – Appeal – High Court dismissed appeal in very cryptic manner holding that there was possibility of prosecutrix being a consenting party as she was above 16 years of age – Approach of trial court and High Court was clearly unsustainable – Merely because the victim is more than 16 years of age 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 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 – High Court was, therefore, clearly wrong in disposing of appeal in such cryptic manner – In the circumstances of case, impugned order of High Court set aside and matter remitted back to it for fresh hearing so that it could consider matter and hear in detail and dispose of same by a reasoned judgment – Appeal allowed to said extent. (Paras 3 and 4)

       Facts of the Case :

        1. Respondent accused was prosecuted herein in the instant case for alleged commission of offences punishable under Sections 376 and 323 of IPC. Trial court acquitted respondent holding that since girl was more than 16 years of age consent had to be presumed. State appeal thereagainst was dismissed by High Court concurring with view of Trial Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Merely because the victim is more than 16 years of age 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 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. High Court was, therefore, clearly wrong in disposing of appeal in such cryptic manner. In the circumstances of case, impugned order of High Court was set aside and matter was remitted back to it for fresh hearing so that it could consider matter and hear in detail and dispose of same by a reasoned judgment. Appeal allowed to said extent.

       Result : Appeal allowed.