“TUKA RAM AND ANOTHER V. STATE OF MAHARASTRA (1979 (3) SCC 143)"

In the Supreme Court of India – Criminal Appeal No.64 of 1977 (1979 AIR 185, 1979 SCR (1) 810)

PETITIONER – Tukaram and Another

RESPONDENT – State of Maharastra

DATE OF JUDGEMENT – 15th September, 1978

BENCH – Hon’ble Justice Koshal, A.D. Koshal, A.D. Singh, Jaswant, Kailosam,

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FACTS OF THE CASE

A young girl named? Mathura lived? with her brother (Gama) as her parents died her childhood. Both of them worked as laborers. Mathura worked at the house of Nunshi and during her course of employment, she came in contact with the son of Nunshi’s sister (Ashok) and developed a sexual relationship. Thereafter, they decided to get married.

On 26th March,1972, Gama, her brother lodged a complaint at the Desai Gunj Police Station, stating that Mathura has been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by head constable Baburao. Mathura and other three persons against were brought to the police station on his instance. Everyone’s statements were recorded.

After all the statements were recorded it was 10:30 pm and everyone was asked to leave the police station with a direction to Gama to bring the copy of the entry regarding the birth date of Mathura. After that Baburao left. Mathura, Nunshi, Gama and Ashok started to leave the police station where the appellants told Mathura to wait inside the Police Station and her companions to move out. The direction was complied with.

When they all went out one of the accused Ganpat switched off the light, closed the door and took Mathura to the bathroom and raped her then dragged her to the rear side of police station and again raped her. The other accused, Tukaram, them came and fondled with her private parts but could not rape her as he was in a highly intoxicated condition.

The others waiting outside grew suspicious finding lights turned off and entrance door closed from within. They went in calling for Mathura. Finally Mathura emerged out and told others about the whole incident. Then an FIR was registered and Baburao was called back to register it.

On 27th March, 1972, Mathura was examined by Dr. Kamal Shastrakar. The girl has no injury on her body. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no mating of pubic hair. The age of the girl was estimated to be between 14 to 16 years of age by the doctor. No traces of semen was found on her body and on pubic hairs, though it was found in the clothes worn by both the girl and the accused.

The judgement of the Session Court states that there was no evidence to prove that Mathura was below 16 years of age on the date of incidence. The court further held that she was a “shocking liar” whose testimony “is ridiculed with falsehood and improbabilities” They further used this argument to justify the presence of semen on her clothes to have come from her act of having sexual intercourse with some person other than Ganpat. By this statement the Judge implied that Mathura was so eager that she had intercourse with ‘someone’ between the hours of this incident and the medical examination. Further, in justifying the semen on Ganpat’s clothes he said that it was “nightly discharge” and also she they added that Mathura narrated this entire story to sound virtuous before Ashok. It was finally held that the prosecution had failed to prove its case against the appellants.

The Bombay High Court reversed the judgement of the session court and held that sexual intercourse was rape and not consensual sexual intercourse. The high court distinguished between ‘passive submission’ and ‘consent’. They clearly stated that both the accused were strangers to her and its highly improbable to say that she can have sexual intercourse with them to fulfill her sexual needs. It is observed that is a mere passive submission or helpless surrender of the body due to fear induced by threat of? injury cannot be constructed as willing sexual intercourse. The court held that the “absence of semen on vaginal smears and pubic hair” was because of the fact that she was examined 20 hours after the incident and its presumably for her to have taken a shower in the meantime. So the Bombay high court held Ganpat guilty under section 376 and Tukaram under section 354 of the Indian Penal Code.

The two of them then came before the Supreme Court in appeal against the High Court.

ISSUES

• Whether the victim had been subjected to or was under any fear or compulsion such as which would justify an interference of any ‘passive submission’?
• Whether the appellant no.1 and appellant no.2 are liable under section 376 of the Indian Penal Code?

DECISION

• JUDGEMENT OF THE SUPREME COURT –

The appeal made by the accused against the judgement of High court was accepted and the decision of the high court was again reversed by the supreme court and the order of conviction imposed upon the appellants was also set aside. The Supreme Court agreed with the decision of the Session Court and held that it was a case of consensual sexual intercourse. The Court also added that there were no “marks of injury” found on Mathura’s body, there was “no battle” on her part and since she did not raise an alarm for help she ‘consented to sex’. Further, if Mathura had tried to resist she would have been ‘powerless’ in front of the two well built strong constables and thus impossible for “marks of injury” to be carved onto her body. It has also been observed that Mathura’s mistake to point out the exact appellant who has raped her further worked against her because the court stated that if she could go against her initial testimony by changing the accused from Tukaram to Ganpat, it was possible that she had lied about everything else too.

REASON

• For the proposition that the requisite consent was lacking in the present case, and to believe on Mathura’s story it would have to be shown that the girl had been put in fear of death or hurt and that was the reason for her consent. To this aspect of the matter the High Court perhaps was alive when it talked of ‘passive submission’ but then in holding the circumstances available in present case make out a cause of fear on the part of girl, it did not give a finding that such a fear was shown to be that of death or hurt and in the absence of such finding, the alleged fear would not vitiate the consent. Further for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be so that it leads to no reasonable interference other than guilt.

We have already pointed out the fear which Section 375 clause third speaks is negative by the circumstance that the girl said to have been taken away by Ganpat right from her near and dear ones at a point of time when they all were leaving the police station together and were crossing the entrance gate to emerge out of it.

In view of what is said above it, in conclusion the sexual intercourse in question is not proved to amount to rape and no offence against Ganpat is proved.

• The only allegation to have been brought against Tukaram is that he fondled with the private parts of the girl. But the high court itself has taken note of the fact that in the FIR the girl has made serious allegations against Tukaram on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. The girl first made an allegation that Tukaram had taken her to the bathroom but then she said that it was not him but Ganpat. Now, if a girl could alter her position in regard to this serious allegations at will, what is the assurance that her word is truthful in relation to what she now says about Tukaram?
• The High Court appears to have been influence by the fact that Tukaram was present at the police station when the incident took place and left it after the incident. The court do not therefore propose to take the girl at her word in relation to Tukaram appellant and hold that the charges remain wholly unproved against him.
• The above mentioned all the facts are the only reason for the final decision of the Supreme Court where Tukaram and Ganpat were set free. As in case of Tukaram the prosecution could not prove the allegations true against him and also the essentials of Section 375 has not been proved to account that act of sexual intercourse of Mathura as rape.
• LAW ON POINT – The laws which were further charged against the appellants are as follows –?
• Section 354 of the Indian Penal Code? relating to “Assaulting or criminal force to women with intent to outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.
• Section 375 of the Indian Penal Code relating to “Rape”

Section 375 – A man is said to commit ‘rape’ who except in the case hereinafter, expected, has sexual intercourse with a woman under circumstances falling under the five following descriptions -??

First – Against the will

Secondly – Without her consent

Thirdly – With her consent, when her consent has been obtained by putting her in fear of death or hurt.

Fourthly – With her consent, when the man knows that he is not her husband, and her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With or without her consent, when she is under sixteen years of age.

Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception – Sexual intercourse by a man with his own wife not being under fifteen years of age is not rape.

CASE ANALYSIS

The final decision given by the Supreme Court cannot be justified in any way as the court gave no proper analysis as to why the factors given by the high court were insufficient to justify conviction for rape. The Honorable Court relied upon the fact that there were no ‘marks of injury’ on the body of the girl after the incident to infer that the “alleged intercourse was a peaceful affair, and the story of stiff resistance which was put up by the girl was all false.” Although the court relied upon it but still there was no specific evidence to prove it.?

The High Court very rightly observed that at the relevant time when the girl was in the police station at the dead hour of night where she would feel helpless in the presence of two well built appellants and also who were in a position of authority while she was all alone, she could hardly repel them and inferred that the act of sexual intercourse must be regarded as the result of fear, and therefore no consent in the eyes of law as no other option was left with her.

The Supreme court particularly relied upon the fact that the girl had changed her statement twice during her trial so she could not be trusted and also she made some false narration as well. But the Supreme Court evidently failed to acknowledge that the girl being all alone at the dead hour of the night would never have an intercourse with two unknown men to satisfy her sexual needs. It is nearly impossible to believe it.

?Even after the final decision of the supreme court some of the major questions regarding the incidence still remains unanswered such as why was she asked to stay in the police station while all her relatives were asked to leave after all the statements were recorded? Why was the lights off having the girl alone and the door of the police station was shut? Does the absence of marks necessarily imply absence of stiff resistance? If the fact that Tukaram was intoxicated and he was not able to stop Ganpat from raping her can be considered material then there is a possibility that in his intoxication he might have raped her but this is considered totally immaterial one may ask why so? Even if we consider that the shout for help and stiff resistance are all tissues of lies but how can the absence of shout justify the act of consensual sex at the police station and that too in the bathroom?

The Supreme Court did not justify a single major question of the case in their decision. The decision was? a clear biased decision.

The court focused only on the third provision of section 375 but completely ignores the second provision which talks about “without her consent”. There is a clear difference between “submission” and “consent” and from the facts of the case it is crystal clear that it was submission of the body passively and no consent for the sexual intercourse was given. The only basic question before the court was whether the act committed was by consent or under any fear of death or hurt and from the facts it was clear that there was submission and no consent but it seemed as if the court had completely ignored the difference between the term “Consent” and “passive submission”.?

The session court and the supreme court both raised questions over Mathura’s character although it had nothing to do with the case. The pre-marital sex of Mathura with Ashok was used as a weapon against her in this case and its judgement. Due to the social stigmatization Mathura’s words were not trusted and as she was an helpless orphan girl it was easy to suppress her by pointing out no marks of injury as consensual sexual intercourse and the charge against both the accused were removed and they were set free.

To conclude, the judges should have adopted a sensitive attitude against the rape victim rather than using her situation as a weapon against her as the unanswered questions in the decision and the circumstances of the case were sufficient to hold the two men guilty but supreme court did the opposite which was not at all a fair decision as they had a great fall in differentiating between “passive submission” and “active consent”. The unwillingness to have sexual intercourse cannot be solely checked by the parameters of physical injuries as it is not at all justified.

The Judgement of the supreme court was nothing but a mere disappointment to all people who believe in justice and it was not at all a well reasoned judgement but a clear biased judgement.

CONCLUSION

• The Supreme Court in this case evidently tragically failed to distinguish between consent and submission. Such submission due to fear cannot comply consent. The difference between consent and submission is misunderstood in many cases. All consents are submission but all submissions are not consent. Submission may be active or passive depending upon the situation. But the only factor which matters is that unwillingness on the part of the victim should not be determined solely on the parameter of physical injuries. This is where the problem arises.
• The court needs to adopt a sensitive attitude towards the genuine rape victims. There is no single word in the judgement condemning the very act of calling Mathura and detaining her at the police station all alone which was a gross moral violation. The court also gave no consideration to the socio- economic class of the girl, her mental state, her age etc.?
• The ultimate fact being that this judgement by the supreme court was a big blot on the face on Indian Judiciary as the decision was not a fair and just one.

BIBLIOGRAPHY

• www.indiankanoon.org
• www.indianlegalservices.com
• www.legitquest.com
• www.delhilawacademy.com

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