Citation: 1979 AIR 18 1979 SCR (1) 810 1979 SCC (2) 143
Judges involved in judgment: Koshal, A.D.; Singh, Jaswant; Kailasam, P.S.
Petitioner: Tuka Ram and Anr
Respondent: State of Maharashtra
Date of Judgment - 15/09/1978
Introduction
Indian Penal Code Sec. 375 - Rape - What is the meaning of without consent - Obtaining consent by putting fear of death or hurt - Criminal trial - Onus is on prosecution to prove all the ingredients of an offence.
Facts of the case
● Mathura, an orphan tribal girl, lived with her brother, Gama. Both of them worked as laborers to earn a living. Mathura used to work as a domestic helper at the house of Nunshi where she met Ashok, Nunshi’s nephew, who wanted to marry her.
● On 26th of March, 1972 Gama lodged a report at the police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. After the report was recorded the three persons who complained against Mathura, as well as Mathura, were brought to the police station. After the general investigation, all the persons were asked to leave.
● However, as they were leaving, Mathura was asked to stay behind while everyone else was asked to wait outside. Then Ganpat, the police head constable, sexually assaulted Mathura in the bathroom by looking at her private parts with a torch and then took her to the back of the police station to rape her. After Ganpat was done fulfilling his lust, Tuka Ram, a police constable, fondled with her private parts but could not rape her due to high levels of intoxication.
● Her relatives grew suspicious and therefore shouted and attracted a crowd. Mathura filed an FIR against the two police constables as advised by Dr. Khume who examined her right after the incident. On 27th March at 08:00 PM she was examined by Dr. Kamal Shastrakar who found no injuries on her body and no traces of semen in pubic hair and vagina smears. But semen was present on the clothes of both Mathura and Constable Ganpat.
Issues of the case
● Whether appellant one named Tukaram had committed offense under Section 354 of the Indian Penal Code and the second appellant named Ganpat under Section 376 thereof.
Contentions of petitioner
The main contention which has been raised by the appellants is that no direct evidence is available about the nature of the consent of the girl to the alleged act of sexual intercourse, from available circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any "passive submission". Also, no marks of injury were found on the person of the girl after the incident which indicates that the alleged intercourse was a peaceful affair, and that there was no stiff resistance. It is further clear that the claims by the girl that she had been shouting loudly for help are also lies.
Contentions of respondent
The respondent contested that the consent of the girl was a case of "passive submission". At the time of the incident, the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law.
Session Court’s Judgment
● The Session Judge held that there was no satisfactory evidence to prove that Mathura was under 16 years of age on the date of the incident.
● He further added that Mathura was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”.
● He concluded that Mathura had sexual intercource with her own free will with Ganpat and Tukaram groped her as she was “habitual to sexual intercource”. But she had to sound virtuous before Nunshi and Ashok. There is a world of difference between “sexual intercourse” and “rape”.
● Thus, the Judge acquitted the appellants.
High Court’s Judgment
● The High Court held that the allegations made by Mathura towards Ganpat were reliable due to circumstantial evidence, particularly the presence of semen stains on Mathura and Ganpat’s clothes.
● The High Court stated that there is a difference between consent and “passive submission”, thus the sexual intercource was forcible and amounted to rape.
● In case of Tukaram, the High Court agreed with the Session Judge that he had not made an attempt to rape Mathura but he had taken her word for granted as he was alleged to have fondled her private parts.
● On the basis of the circumstances, the High Court convicted and sentenced Ganpat to 5 years of imprisonment and Tukaram to 1 year imprisonment.
Supreme Court’s Judgment
● The Supreme Court held that as there was no injury on Mathura, thus, it could not be deduced that she was subjected to or was under any fear or compulsion so the nature of the consent could not be inference of any “passive submission”.
● The FIR which Mathura had made against Tukaram had serious allegations on which she had gone back at the trial and the acts which she attributed to Ganpat instead. If she could change her words with respect to such serious allegations, there is a lack of assurance that she is truthful about Tukaram. Thus the charge against Tukaram remains unproved.
Conclusion
In conclusion, the appeal had succeeded and was accepted. The High Court’s judgment is reversed and the sentences imposed on Ganpat and Tukaram are set aside. Thus, the appellants are acquitted.
This article is written by Jaanvi Garg of The University of Manchester.