This post is written by Shally Yadav, a first-year law student of Hidayatullah National Law University, Raipur.
Title of case: Tukaram and others Vs. State of Maharashtra
Citation: AIR 1979 SC 185
Court: Supreme Court of India
Bench: A.D. Koshal, Jaswant Singh and P.S. Kailasam.
Appellants: Tukaram and others
Respondent: State of Maharashtra
Brief Facts of the case:
- Mathura, an adivasi girl, who was aged between 14 years to 16 years lived with his brother Gama as her parents had died. She used to work at Nunshi’s house. There she met Nunshi’s nephew, Ashok, and both developed an intimate relationship and decided to marry each other.
- Gama lodged a report on 26th March 1972 at police station Desai Gunj alleging that Mathura had been kidnapped by Ashok’s family. Head Constable Baburao called Mathura, Gama, Ashok and Nunshi for giving their statements at 09:00 PM. By the time statements were taken it was 10:30 PM and Baburao left for his house and asked the four of them to leave too.
- While Mathura, Gama, Ashok and Nunshi were leaving Constable Ganpat asked Mathura to come inside with him. He sexually assaulted her in the bathroom by looking at her private parts with a torch. Then he took her at the back of the Police station and raped her.
- Head constable Tukaram also sexually assaulted her by fondling her private parts but wasn’t able to rape her as he was in a highly intoxicated condition.
- Mathura filed an FIR against the two police constables on advice by Dr. Khume who initially examined her. On 27th March at 08:00 PM she was examined by Dr. Kamal Shastrakar who found no injuries on her body and no signs of intercourse either. Though semen was present on the clothes of both Mathura and Constable Ganpat.
- 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.
Session Court’s Judgment:
The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The learned Judge stated that in all probability Mathura had intercourse with the second appellant, that is Ganpat. But he added that there is a world of difference between “sexual intercourse” and “rape”. He stated that Mathura had sexual intercourse with Ganpat on her free will. And Tukaram groped her because she was “habitual to sexual intercourse”. And then concluded that the prosecution had failed to prove its case against the appellants
High Court’s Judgment:
The High Court agreed with the learned Sessions Judge in respect of his finding with regard to the age of Mathura but held that the allegations made by her towards Ganpat were reliable due to circumstantial evidence, especially that of the presence of stains of semen on the clothes of the girl and Ganpat appellant.
The High Court proceeded to observe that although the learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he stated that there is difference between consent and “passive submission”. The High Court concluded that the sexual intercourse in question was forcible and amounted to rape.
In relation to appellant Tukaram , the High Court did not believe that he had made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.
It was in these premises that the High Court convicted and sentenced appellant Tukaram with one year imprisonment and appellant Ganpat with five years of imprisonment.
Supreme Court’s judgment:
The Supreme Court stated that the nature of consent of the victim had to be determined from the circumstances and the circumstances made it clear that the consent was not “passive”. There was no injury on the person of the girl, 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 “.
As for the allegations made against Tukaram, the first information report the girl had made against Tukaram had serious allegations on which she had gone back at the trial and the acts covered by which she attributed in her deposition to Ganpat instead. If the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram? Thus charge remains wholly unproved against Tukaram appellant.
In conclusion, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the conviction recorded against as well as, the sentences imposed upon the appellants by it are set aside. The appellants are thus acquitted.