Court: Supreme Court of India
Citations: 1979 AIR 185, 1979 SCR (1) 810, 1979 SCC (2) 143
Coram: A.D. Koshal (J), Jaswant Singh(J), P.S. Kailasam (J)
Theme Custodial rape case in which consent was determined with circumstantial evidence and the reasoning exposed the Court’s deep rooted biases against women, leading to important amendments in the IPC.
Subject: Indian Penal Code
FACTS OF TUKA RAM AND ANR V STATE OF MAHARASHTRA
The cause of action for this case arose on 26th March 1972, when a girl named Mathura (P.W.1) was sexually assaulted at Desai Gunj Police Station, by Appellant No.1 Tukaram (Police Constable) and Appellant No. 2 Ganpat (Head Constable). Mathura worked at Nunshi’s (P.W. 2) house where she met Ashok, Nunshi’s relative and fell in love with him. Their relationship gradually became very intimate after which they decided to get married. On the above said date, Gama, Mathura’s brother (P.W. 3) lodged a report with the Desai Gunj police station accusing Nunshi, her husband Laxman and Ashok of kidnapping Mathura. Subsequently they were all brought to the police station at about 9:00 pm where the statements of Mathura and Ashok were recorded by Head Constable Baburao (P.W.8). After the recording of statements, at around 10:30 pm Baburao left after directing Gama to bring a copy of Mathura’s birth record.
As Mathura, Nunshi, Gama and Ashok were leaving, the appellants asked Mathura to stay back and her companions to move out. Ganpat then dragged Mathura to the latrine at the rear end of the building, where he loosened her underwear, lit the torch and stared at her private parts. Soon after that she was then dragged to the Chhapri, the verandah at the back of the building where he had sexual intercourse with her despite protests and stiff resistance on her part. As regards Appellant No. 1 Tukaram, the allegation was that he fondled her private parts but was unable to have sexual intercourse due to his intoxicated state.
Nunshi, Gama and Ashok, who were waiting outside the police station grew suspicious when they saw that the lights were turned off and that the entrance was locked from within. They went to the rear end of the building and shouted for Mathura, which attracted a crowd outside the police station. Shortly afterwards, Tukaram exited the police station and informed them that Mathura had already left. After this, when Mathura emerged from the police station, she informed Nunshi and Gama that Ganpat had forced her to undress and had raped her. For the purpose of registering a complaint for the same, Baburao was brought from his house. He took Mathura’s statement which was registered as the first information report.
Mathura was examined by Dr. Shastrakar at 8 p.m. on 27th March and the examination revealed that there were no injury marks on her body and her hymen revealed old ruptures. The vagina easily admitted two fingers and there was no matting of the pubic hair. Her age was estimated to be around 14-16 years by the doctor. Though no semen was found on the pubic hair and inside the vagina, Mathura’s clothes as well as Ganpat’s pyjamas revealed the presence of semen.
harges were brought against the Appellants under Section 376 (Punishment for Rape) read with Section 34 (Acts done by several persons in furtherance of the common intention of all) of the Indian Penal Code.
THE SESSIONS COURT AND THE HIGH COURT
The Sessions Court found no satisfactory evidence to conclude that Mathura was raped or sexually assaulted by Ganpat and Tukaram. Mathura was referred to as a “shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The Court observed that there is a vast difference between sexual intercourse and rape and assumed that what happened in this particular case between Mathura and the Appellants was consensual sex as rape could not be proved by the Prosecution.
According to the Sessions Court Mathura’s accusation against Ganpat and Tukaram were only because she couldn’t confess in front of her brother Gama and lover Ashok that she wilfully surrendered to two men in authority. The court justified the finding of semen on both Mathura’s and Ganpat’s clothes by stating that Mathura was habituated to having sexual intercourse and the fact that she was living with Ashok was proof of the same. Therefore the court concluded that the semen stains on Mathura’s clothes could be due to her sexual intercourse with someone else and that of Ganpat was due to his ‘nightly discharges’. Thus, the appellants were acquitted.
The High Court though agreed on the findings of the age of Mathura but disagreed with its view that the presence of semen on clothes of Mathura and Ganpat and not on her pubic hair or body was not enough to draw a conclusion that Mathura was raped. The High Court considered the fact that Mathura was only examined by the doctor 20 hours after the incident and there was a probability that she bathed in the meantime. It also agreed with the lower court on the difference between sexual intercourse and rape but it also differentiated between consent and passive submission.
The court observed that both the appellants were complete strangers to Mathura and hence it was improbable that she would have initiated the sexual intercourse, in fact she couldn’t have resisted the sexual intercourse initiated by the two policemen in whose hands lay the complaint made by her brother. “Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will.”
On the other hand the fact that they took advantage of Mathura being alone at the police station and also their authority over their case might mean that they were the ones to take the initiative. Taking all of this into account, the High Court reversed the acquittal and observed that there was passive submission on Mathura’s part due to fear and this was not free consent in the eyes of law. Thus, Appellant No. 1 Tukaram was convicted under Section 354 (Outraging the modesty of a woman) and Appellant No. 2 Ganpat was convicted under Section 376 (Punishment for Rape) of the Indian Penal Code.
ISSUES IN TUKA RAM AND ANR V STATE OF MAHARASHTRA
This appeal by Special Leave is preferred by the appellants from the Judgement and Order of the Bombay High Court. The main issue made out by the Supreme Court in this case is whether there was consent on Mathura’s part for the sexual intercourse that took place as indicated by the circumstantial evidence brought before the Court. The court determined the presence of free consent based on the following – absence of injury marks on Mathura’s body, failure to raise an alarm and shout for help and no fear of death or hurt at the time of the incident.
THE SUPREME COURT
The Supreme Court contended that Mathura’s natural impulse, if she genuinely didn’t consent in her free will to Ganpat dragging her to the latrine, would have been to resist, jerk off the hand that grasped her or shout out for help. Mathura’s failure to appeal to her companions and the fact that the medical examination did not reveal any injuries on her body shows that her consent cannot be brushed aside as “passive submission”. The Court stated, “It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies.” Further, the onus of proving all the ingredients which constitute the offence of rape under Section 375 of the Indian Penal Code is on the prosecution and to vitiate Mathura’s consent so that the offence of rape is made out, it has to be shown, according to Section 375 thirdly, that she was in fear of hurt or death. However, the circumstantial evidence presented before the Court does not warrant for such a conclusion. She was taken by Ganpat right in front of her near and dear ones and could have easily asked for their help.
With respect to the accusations against Tukaram, it was noted that Mathura had made serious allegations against him in the first information report but had gone back on her word at the trial. As such, her words cannot be taken to inculpate Tukaram and the Court could not rely on her testimony alone. He was present at the police station when the incident took place but such circumstantial evidence is capable of many explanations and does not lead solely to the appellant being guilty.
Thus, the Court reversed the Bombay High Court’s conviction and acquitted the appellants.
IMPACT OF TUKA RAM AND ANR V STATE OF MAHARASHTRA
This landmark judgement delivered in 1978 led to large scale social outcry and several legal reforms. It introduced Sections 376 (A), (B), (C) and (D) to the Indian Penal Code, making custodial rape punishable. Further, Section 114 (A) was added to the Evidence Act, shifting the burden of proof from the prosecution to the defence. This means that in certain cases of prosecution for rape, where it is evident that the accused holds a position of power with respect to the victim, if the victim states that the sexual intercourse took place without her consent, the Court will presume that rape had occurred and the onus will be upon the defendant to prove his innocence by rebutting this presumption. Provisions for in-camera trials and prohibition of disclosure of the victim’s identity were also added.
The most shocking aspect of this judgement is the mentality behind the reasoning provided by the judges. The Sessions Court and the Supreme Court have very conveniently ignored the power dynamics involved – Mathura is a tribal girl and the accused were police persons with immense power and authority which plays an important role and might have been the cause of her passive submission, which explains why her body was free of injuries and her failure to raise an alarm. The insinuation that she is of a promiscuous character, that a girl who is still in her teenage years accepted invitation to a sexual act from complete strangers when her brother and the man she was in love with were nearby clearly shows that the judges’ opinion of her was coloured by the fact that she had been sexually active previously.
An open letter was written by Upendra Baxi, Raghunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar to the Chief Justice of India criticising the above judgement. They put forward several disturbing questions about how the Court can expect a girl of 14-16 years to successfully raise an alarm and put up stiff resistance against two able-bodied policemen in a police station with locked doors in the dark. Further, they contended that should the absence of such injuries and alarm necessitate that the victim consented, especially in cases such as these where power was in play? A dumb or a gagged victim cannot raise an alarm, does this mean that they will be deemed to have consented?
With respect to the handling of semen stains as conclusive evidence, the scholars state, “Does it believe with the Sessions Judge that Mathura was “habituated to sexual intercourse” to such an extent? And therefore further think that the semen marks on Mathura’s clothing could have come from further sexual activities between the police incident and the next morning when she was medically examined? What about semen marks on Ganpat’s trousers? Why this double standard? Ganpat’s sexual habits give him the benefit of doubt of having ‘raped’ Mathura; her sexual habits make the Court disbelieve the story of the rape altogether!”  All this clearly shows that Mathura’s socio-economic status and her being identified by the Court as a girl who is of an easy virtue stood in the way of delivery of justice.
 Tuka Ram & Anr. v State of Maharashtra, 1979 AIR 185 Tuka Ram & Anr. v State of Maharashtra, 1979 AIR 185  Tuka Ram & Anr. v State of Maharashtra, 1979 AIR 185  Tuka Ram & Anr. v State of Maharashtra, 1979 AIR 185  Letter from Upendra Baxi, Raghunath Kelkar, Lotika Sarkar and Vasudha Dhagamwar to the Chief Justice of India (16 September 1979)
Contributed by: Snigdha Kajaria and Rithika Reddy Shyamala (Students, Jindal Global Law School)
The views of the author are personal only. (if any)