Tukaram & another VS state of Maharastra

 

 

 

 

TUKARAM & ANOTHER VS STATE OF MAHARASTRA

[(1979) 1 SCR 810]

 

The historic case of Tukaram and Anr. v. State of Maharashtra, also known as the Mathura

Rape Case, resulted in significant reforms in India's rape laws. In this case, a young girl named Mathura was subjected to custodial rape.

FACTS OF THE CASE

Mathura, an orphan Adivasi girl of age 14-16 years use to live with her brother named Gama. She was a worker at Nunshi’s house; there she met Ashok, Nunshi’s nephew and developed an intimate relationship with him and both decided to marry each other. On March 26, 1972, Gama lodged a complaint at Desai Ganj police station alleging that Ashok and his family has kidnapped her sister. At 9-00 p.m. the Head Constable, Baburao summoned Ashok, Mathura, Nunshi and Gama and also recorded their statements. Around 10-30 p.m., Head constable asked all four to leave after recording their statements. When they were leaving, Constable Ganpat called Mathura and asked her to come with her. She was gang raped by the policemen.

On March 27, 1972 at 8-00 pm, Dr. Kamal Shastrakar examined her and discovered no

bruises on her body or traces of intercourse. But he found semen on the cloths of both Mathura and Ganpat. On the advice of Dr. Khume, who had initially examined her, Mathura filed an FIR against the two police constables. In 1979, the appellants were acquitted by the Supreme Court after a long battle.

On June 1, 1974, the case was heard in the Sessions Court where the defendants were found not guilty. The bench said that since no injuries were discovered therefore there is no rape, it is just sexual intercourse. And since Mathura was "habituated to sexual intercourse" hence her consent was voluntary.

On appeal, the Bombay High Court's Nagpur bench overturned the Sessions Court's decision and sentenced Tukaram and Ganpat to one and five years in prison, respectively. The Bench observed that passive submission produced by serious threats could not be regarded as consent or desired sexual intercourse.

In June, 1979, the Hon’ble SC of India reversed the judgement of the Hon’ble HC and acquitted the defendants. The SC observed that Mathura had not raised any alarm, and there were no apparent signs of harm on her body, implying no resistance and hence no rape. The bench further mentioned that "Because she was used to sex, she might have incited the cops who were intoxicated on duty to have intercourse with her."

The following issues were framed

I. Was there Mathura’s consent?

II. Is the action of the police officer will be the same as rape defined under the Indian

Penal Code?

III. Whether appellant one named Tukaram had committed offence under Section 354 of

the Indian Penal Code and the second appellant named Ganpat under Section 376

thereof?

IV. Are the findings of the Courts justified?

The plea of the accused are

• There is no direct evidence about the nature of the consent of the girl to the act of

sexual intercourse. Hence, one could not arrive at the conclusion that the girl had

been subjected to or was under any fear or compulsion as would justify an inference

of any “passive submission.”

• The alleged intercourse was a peaceful affair and the story of stiff resistance is all

false.

• The allegation made by the girl that she had shouted loudly is false.

The plea of the victim are

• The appellants raped and sexually assaulted Mathura on March 26, 1972 at the

Desai Gunj Police Station when Gama had filed a complaint that she had been

kidnapped by Nunshi’s family. The statements were recorded by Head Constable

Baburao and had asked them to leave the station. But Mathura was asked to stay by

appellant, Ganpat. Immediately after that he took her at the back of the police

and then raped her despite her stiff resistance.

• It was also contended that appellant Tukaram  intended to rape her but failed as he was in a highly intoxicated state.

• On medical examination, the doctor detected the presence of semen on the clothes

of Mathura and appellant Ganpat.

• The age of the girl was estimated to be 14-16 years.

 

Section 375 of IPC: Definition of Rape

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual

intercourse with a woman under circumstances falling under any of the six following descriptions:

1.   Against her will.

2.  Without her consent.

3.   With her consent, when her consent has been obtained by putting her or any

person in whom she is interested in fear of death or of hurt.

4.  With her consent, when the man knows that he is not her husband, and that her

consent is given because she believes that he is another man to whom she is or believes

herself to be lawfully married.

5.  With her consent, when, at the time of giving such consent, by reason of

unsoundness of mind or intoxication or the administration by him personally or through

another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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

Section 376 of IPC: Punishment for rape.

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be

punished with imprisonment of either description for a term which shall not be less than

seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

 

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is appointed;

or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody

established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Section 34 of IPC : Acts done by several persons in furtherance of common intention When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Section 354 of IPC : Assault or criminal force to woman with intent to outrage her modesty.—

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment Of either description for a term which may extend to two years, or with fine, or with both.

 

Session Court’s Judgment

The learned Sessions Judge concluded that there was insufficient evidence to show that Mathura was under the age of 16 at the time of the incident. The Judge also mentioned that she was a "shocking liar" whose testimony was "riddled with lies and inconsistencies."

According to the learned Judge, Mathura most likely had sexual intercourse with Ganpat.

However, the Judge clarified that "sexual intercourse" and "rape" are not the same thing.

Mathura had sexual intercourse with Ganpat on her own desire, the Judge claimed. Tukaram also grabbed her because she was "used to sexual intercourse." Moreover, prosecution also failed to prove its case.

High Court’s Judgment

The High Court concurred with the learned Sessions Judge with respect to the findings related to Mathura’s age, but concluded that the charges made by Mathura against Ganpat were credible due to circumstantial evidence, particularly the existence of semen stains on the girl's and Ganpat’s cloths. Although the learned Sessions Judge was correct in stating that there is a world of difference between sexual intercourse and rape, the High Court went on to add that there is a difference between consent and "passive submission." The sexual intercourse in question was forced and amounted to rape, according to the High Court. The High Court did not believe that appellant Tukaram sought to rape the girl, but it accepted her word for it. The High Court convicted and sentenced appellant Tukaram to one year in prison and appellant Ganpat to five years in prison.

Supreme Court’s judgment

The type of the victim's assent had to be judged from the circumstances, and the circumstances made it evident that the assent was not "passive," according to the Supreme Court. There was no injury to the girl's body, and it was impossible to conclude that she had been subjected to or was under any fear or force that would justify a conclusion of "passive submission." In terms of the allegations made against Tukaram, the girl's FIR contained significant allegations, which she refuted at the trial, and the acts covered by which she assigned to Ganpat instead in her deposition. Where is the assurance that the girl's word is true in relation to what she currently says about Tukaram if she may change her mind about these severe claims at will? As a result, the charge against Tukaram appellant remains unproven.