CASE COMMENT

TUKARAM vs STATE OF
MAHARASTRA
AIR 1979 SC 185

Name: XXXX XXXX

Section: J
Exam Roll No.: XXXX
Class Roll No.: XXXX
Year: Third Year
Centre: Law Centre 1

Background:
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.

Brief Facts:
i. 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.
ii. 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.
iii. 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.
iv. 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.
v. 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.
vi. 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.

Legal Issues:
i. Whether the prosecution proved all the ingredients of the above-
mentioned offences?
ii. Whether the girl submitted to the act of sexual intercourse out of fear or
was it of free will?
iii. Whether the decision of the High Court convicting the appellant
was justified?
iv. Whether the appellants were guilty under Section 354 and 376 of
Indian Penal Code, 1860?
Ratio Dicedendi:
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.

Decision:
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.

My Observation:
Rape is most inhumane crime and it is shame for a country like INDIA where
women areequated to goddess.
This verdict by Supreme Court is complete miscarriage of justice and created a
very unfortunate example. In this case an orphan and helpless girl was
victimized by authorities whichwas supposed to be safeguarding her rights.

My observation in this case are followings—

* Hon’ble Supreme Court failed to appreciate the very vexed difference

between consentand submission. High court was right in
differentiating between both terms. Since both constableswere
persons in authority so the helpless and unaware girl had all reason to
believe on them when they stop her.
* Supreme Court only focused on third component of section 375 of
IPC which applies when rape is committed with woman consent and
her consent is obtained by putting her in fear of death or hurt. But
second component of section 375 is when rape occurs without her
consent.
Conclusion:
Even though rape laws in India have been reformed over time, the occurrences
of rape keep increasing every year. Besides causing tremendous physical injury
to the victim, this crime has devastating psychological effects as well such as
PTSD, depression, flashbacks, sleep disorders and more. One step towards
elimination of this crime would be to improve safety and security for women in
the State. More than stringent laws to penalize the wrongdoers, it is the attitude
and mentality of men, like the Supreme Court Judges in the Mathura Rape Case
that requires reformation.