In Tukaram vs State of Maharashtra case, an appeal by special leave is directed against the judgment dated 12th October 1976 of the High Court of Judicature at Bombay reversing a judgment of acquittal of the two appellants and convicting Tukaram, appellant No. 1 of an offence under Section 354 and the second appellant named Ganpat under Section 376 of IPC thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years, respectively.
BENCH: KOSHAL, A.D.
RELEVANT PROVISIONS: Section 354 and Section 376 of the Indian Penal Code
- The prosecution alleges that both the appellants have raped a girl named Mathura, aged about 14-16 years of age, in the police station. Mathura’s parents died when she was a child and she has been living with her brother, Gama. Both of them worked as labourers to earn a living.
- Mathura used to work in Nunshi’s house and during that course she came in contact with Ashok, who was the sister’s son of Nunshi. The contact between them further developed into an intimacy as a result, they decided to marry each other.
- On 26th of March 1972, a complaint was being lodged by Gama alleging that Mathura had been kidnapped by Nunshi, her husband and her nephew. At the instance of the Head Constable Baburao, the statement of Ashok and Mathura were recorded. Around 10:30 pm, all the persons were asked to leave with a direction to Gama to bring for a copy of the entry regarding the birth date of Mathura.
- While all of them left, Mathura was asked by the appellants to wait at the police station and immediately thereafter, Ganpat (referred as appellant No.1) took Mathura into a latrine, raped her and thereafter dragged her to a Chhapri on the backside and raped her again. Further, it is alleged that Tukaram (referred as appellant No. 2) fondled with her private parts but could not rape her as he was in a highly intoxicated condition.
- Nunshi, Gama and Ashok, who were waiting outside the police station for Mathura, grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They, therefore, shouted and attracted a crowd. Thereafter, a complaint was being lodged against the two police constables on being advised by the doctor, who initially examined her.
- On 27th of March 1972 at 8pm. The doctor examined the victim and stated that the girl had no injury on her body and no signs of intercourse either. However, presence of semen was being detected on the girl’s clothes and the pyjama of appellant No.1.
- Whether the prosecution proved all the ingredients of the above mentioned offences?
- Whether the girl submitted to the act of sexual intercourse out of fear or was it of free will?
- Whether the decision of the High Court convicting the appellant was justified?
- Whether the appellants were guilty under Section 354 and 376 of Indian Penal Code, 1860?
That no satisfactory evidence was being found by the Session Judge to prove that the victim was below 16 years of age on the date of occurrence. It was held that Mathura was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The conclusion drawn was that certainly, the intercourse had taken place between the appellant No.1 and the victim i.e. Mathura, but also added that the offence of rape had not been proved. Thereupon, the appellant was acquitted and held that there is a world of difference between “sexual intercourse” and “rape”.
Further, the High Court agreed with the learned Sessions Judge regarding his finding with regard to the age of Mathura but reversed the order of acquittal on the ground that the sexual intercourse was forcible and hence amounting to rape. He erred in appreciating the difference between consent and “passive submission”.
The High Court remarked it was not the case of the defence that Mathura knew both the accused or any of them since before the time of occurrence. It is, therefore highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire and neither possible for a girl who was involved in a complaint filed by her brother to make such overtures or advances. Thereupon implying that the initiative must have come from the accused and if this is the case, she could not have resisted the same. In relation to Tuka Ram, it was believed by the Court that no attempts have been made by him to commit the offence of rape but the allegation against Ganpat of fondling the private parts of the victim was considered.
It was on these premises that the High Court convicted and sentenced appellant Tuka Ram with one year and appellant Ganpat with five years of imprisonment.
Hence, the said appeal was made by the appellants against the judgment of the High court, and the following contentions were raised before the concerned court on behalf of them :
- Since there was no direct evidence about the consent of the girl to the alleged act of sexual intercourse, it need to be inferred from the circumstances available and it could not be deduced from those circumstances that the girl had been subjected to or was under any fear or compulsion as would justify an inference of any “passive submission”.
- No marks of injury have been found on her body, showing that the alleged intercourse was a peaceful affair and the story of stiff resistance was all false.
- The averments by the girl that she had screamed loudly for help at the time of incident were also found false.
- The reasoning of the High Court that her submission to the act of sexual intercourse was because of fear does not amount to consent in the eye of law.
- The High Court loses the sight of the fact that the girl was taken by the accused from amongst her dear ones.
In view of the above findings, the Supreme Court held that the onus was on the prosecution to prove that all the ingredients of Section 375 of IPC were present in the case of sexual intercourse attributed to the appellant.
Section 375 of Indian Penal Code,1860 defines rape as
“sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mind and if she is under 18 years of age”.
Since the High Court could not establish that the consent of the girl was got by putting her in a state of fear of death or of hurt, therefore the third clause of Section 375 will not apply. It was further submitted that no question of fear arises as the girl didn’t object when she was taken away from her family members, excluding section 375(2), which states that rape is sexual intercourse with a woman without her consent.
It was further stated by the Supreme court that the nature of consent of the victim had to be determined from the circumstances, which clarified that the consent was not passive. Finally, taking into consideration the above facts and circumstances, the Supreme Court overruled the decision of the High Court convicting the appellants and acquitted the accused on the grounds that this was a case of consensual sexual intercourse.
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