In the Supreme Court of India Criminal Appeal No. 64 of 1977 1979 AIR 185, 1979 SCR (1) 810 Petitioner Tuka Ram & anr Respondent State of Maharashtra Date of Judgement 15th September 1978 Bench Hon’ble Justice Koshal, A.D. Koshal; A.D. Singh, Jaswant, Kailasam, P.S.
Background of the Case:
A young girl named Mathura was living with her brother (Gama) as her parents died in her childhood. Mathura worked as a laborer at the house of Nunshi and during her course of employment she came in contact with son of Nunshi’s sister (Ashok) and developed a sexual relationship. Thereafter, they decided to get married.
On 26th march, 1972 her brother, Gama logged a complaint at police station stating that Mathura had been kidnapped by Nushi, her husband Laxman and Ashok. Statements were recorded by the Head Constable Baburao (appellant no.1), at 10:30 P.M. He recorded the statements of Mathura and Ashok. Later, Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura.
The Appellant no. 1 asked Mathura to stay at the police station only. After everyone left, the appellant no.1 closed the doors and switched off the lights also. And then he took Mathura inside the washroom and raped her. After him, appellant no.2 fondled with her private parts and tried to rape her but failed due to his high intoxication. Nunshi, Gama and Ashok who were waiting outside the police station for Mathura grew suspicious. Mathura narrated this incident to them. Thereafter, a complaint was logged and Mathura was examined by the Dr. Kamal Shastrakar on 27th March, 1972 and found no injury on her body. The examiner did not find the symptoms of semen, even on the pubic hair. The semen was however found on the girl’s clothes.
Facts of the Case:
Judgment of the Session Court
The Session court held that both the accused were not liable for the offence of rape and acquitted them by stating it as a “consensual sexual intercourse”. It is evident that she was habituated to the sexual intercourse. It is further held that she was a shocking liar whose testimony “is riddled with falsehood and improbabilities”. He further used this line of 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 is implying that Mathura was so eager that she had sexual intercourse with ‘someone’ between the hours of this incident and her medical examination. Further, in justifying the semen on Ganpat’s clothes he said it was due to “nightly discharges”. It is observed that she was scared of Ashok and Nushi that is why she had not made any sound. He further held that in order to sound “virtuous before Ashok” Mathura fabricated a story of being raped.
Judgment of the High Court:
The Bombay high court reversed the order of the session court and held that the sexual intercourse was a rape and not a consensual sexual intercourse. The high court distinguished between passive submission and consent. In its remarks it clearly states that both the accused were strangers to her and it is highly improbable to say that she can have sexual intercourse with them to fulfill the sexual needs of her.
It is highly improbable for her to make such overtures and advanced when she and her brothers were involved in a complaint in the same police station. Further, accused were in a position of authority and any resistance to them could prove detrimental to her or her brother. It is observed that it is a mere passive submission or helpless surrender of the body which may be due to fear induced by threat of injury and it cannot be construed as a willing sexual intercourse.
It had been also observed that her statements immediately after the incident to her relatives and crowd clearly states that she was subjected to “forcible sexual intercourse”. The Court further held that the “absence of semen on the vaginal smears and pubic hair” was because of the fact that she was examined 20 hours after the incident and it is presumably for her to have taken a shower in the meantime.
a. Whether there was a consent given by a girl for sexual intercourse?
b. Whether the act of the police officers’ amounts to rape and can be considered as a forcible sexual intercourse?
c. Whether the appellant no.1 and appellant no.2 are liable under section 376 of Indian Penal Code?
d. Whether the high court rightly made the reversal order of session court judgement?
Judgment of the Supreme Court:
The appeal made by the accused against the judgement of the high court is accepted and the decision of the High Court was again reversed by the Supreme Court and the order of conviction imposed on appellants was also set aside. The Supreme Court agreed with the decision of the Session Judge and held that this 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 tried to resist, she would be powerless in front of two well-built, strong constables and thus impossible for “marks of injury” to be carved onto her body. It has been also observed that Mathura’s mistake to point out the exact appellant who had 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.
- SECTION 375 OF Indian Penal Code: “Rape”.
- SECTION 376 of Indian Penal Code: Punishment for rape.
Edited by Sree Ramya
Approved & Published – Sakshi Raje