SCHOOL OF LAW, LOVELY PROFESSIONAL

UNIVERSITY, PUNJAB (INDIA)

Tukaram and Another versus The State of Maharashtra

1979 (2) SCC 143

SUBMITTED BY
RAVIDEEP SINGH
REG.NO. 11611106
LL.BTYC (2nd Year)
Course Code: Law 421 Course Title: Law of Crime -II

Course Instructor: Shaifali Dixit

Academic Task No.: CA-2 Academic Task Title: Case Analysis

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Contents
INTRODUCTION OF THE CASE ........................................................................................................ 1
FACT OF THE CASE ............................................................................................................................ 2
LAW POINTS ........................................................................................................................................ 3
SECTION 375. RAPE.— .................................................................................................................... 3
SECTION 376. PUNISHMENT FOR RAPE ..................................................................................... 3
SECTION 34.ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF COMMON
INTENTION ....................................................................................................................................... 5
SECTION 354. ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO
OUTRAGE HER MODESTY ............................................................................................................ 5
ISSUES ................................................................................................................................................... 5
ARGUMENT BY THE APPELLANT ................................................................................................... 6
ARGUMENT BY THE RESPONDANT ............................................................................................... 6
CASE HISTORY .................................................................................................................................... 6
SESSION COURT JUDGEMENT ..................................................................................................... 6
HIGH COURT JUDGEMENT ............................................................................................................... 7
SUPREME COURT JUDGMENT ......................................................................................................... 7
CRITICAL ANALYSIS ......................................................................................................................... 8
LATER AMENDMENT ,SUGGESSION AND RECOMMENDATIONS ......................................... 10
CONCLUSION ..................................................................................................................................... 11
REFERENCES ..................................................................................................................................... 12
STATUTES....................................................................................................................................... 12
BOOKS ............................................................................................................................................. 12
ONLINE SOURCES ......................................................................................................................... 12
INTRODUCTION OF THE CASE

Appellant

Suraj Ratan Thirani & Ors

Respondents

The Azamabad Tea Co. & Ors

Case No.

Civil Appeal No 330 Of 1960

Judges

The Hon'ble The Chief Justice Bhuvaneshwar Prasad Sinha

The Hon'ble Justice J.C shah

The Hon'ble Justice n. Rajagopala Ayyangar

Advocates

S.T Desai, Senior Advocate (B.P Maheshwari, Advocate, with him).

B. Sen and N.R Ghosh, Senior Advocates, (Salil K. Datt and P.K Ghosh, Advocates, with
them).

This appeal by special leave is directed against the judgment dated October 12, 1976 of the
High Court of Judicature at Bombay (Nagpur Bench) reversing a judgment of acquittal of the
two appellants of an offence under section 376 read with section 34 of the indian penal
code recorded by the Sessions Judge, Chandrapur, on June 1, 1974, and convicting Tukaram,
Appellant 1, of an offence under section 354 of the code and the second appellant named
Ganpat of one under Section 376 thereof. The sentences imposed by the High Court on the
two appellants are rigorous imprisonment for a year and 5 years respectively.

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FACT OF THE CASE
1. Mathura was an orphan girl who lived with her brother, Gama. Both of them worked
as labourers. Mathura used to work at the house of a lady named, Nushi. During the
course of her visits to their house, Mathura developed an intimacy with Nushi’s
nephew Ashok. They decided to get married. On March 26, 1972.
2. Gama lodged a complaint at police station Desai Gunj alleging that Mathura had been
kidnapped by Nushi, her husband Laxman and Ashok. The report was recorded by
Head Constable Baburao. Mathura and other three persons complained against were
brought to the police station on his instance. The statements were recorded. Gama
presented the relevant document proving Mathura’s age which was registered.
Baburao then left for home.
3. When Mathura and others were leaving, the appellants asked Mathura to wait at the
police station and asked her companions to move out. When they did so, one of the
accused Ganpat took Mathura to a latrine in the police station, where he loosened her
underwear and stared at her private parts using a torch. He then dragged her to the
rear of the police station and raped her. Tukaram, the other accused, then came and
fondled with her private parts. He could not rape her owing to his highly intoxicated
state.
4. The others grew suspicious finding lights turned off and entrance door being closed
from within. They went in calling for Mathura. Finally Mathura emerged and told the
others about the whole incident. Nushi took Mathura to a doctor to get her examined.
The doctor told them that they should first get an FIR registered.
5. Baburao was called back and he registered the FIR. Mathura was examined the next
day. The girl had no injury on her person. Her hymen revealed old ruptures. The
vagina admitted two fingers easily. There was no matting of the pubic hair. The age of
the girl was estimated by the doctor to be between 14 and 16 years. No traces of
semen were found on her body, though it was found in the clothes worn by both the
girl and the accused.
6. 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". It was finally concluded that the prosecution had failed to prove its
case against the appellants. The Bombay High Court reversed the judgment finding
Ganpat guilty under Section 376 and Tukaram under Section 354 of the Indian Penal

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 Code. The two of them then came before the Supreme Court in appeal against the
High Court judgement

LAW POINTS

SECTION 375. RAPE.—A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the
offence of rape.

 The appellants are charged under the Rape offence because it is fall under the first
three description of this act. Accused no. 1 had sexual intercourse with her against her
will and without her consent and put her into fear.
 Note- The said section is amended after this case. Many provisions included after that
case in this section

SECTION 376. PUNISHMENT FOR RAPE1

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than
seven years but which may be for life or for a term which may extend to ten years and shall

1
Indian Penal Code, 1860

3
also be liable to fine unless the women raped is his own wife and is not under twelve years of
age, in which cases, he shall be punished with imprisonment of either description for a term
which may extend to two years or with fine or with both: Provided that the court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which
he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a
woman in his custody as such public servant or in the custody of a public servant subordinate
to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman’s or children’s
institution takes advantage of his official position and commits rape on any inmate of such
jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official
position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall
not be less than ten years but which may be for life and shall also be liable to fine: Provided
that the Court may, for adequate and special reasons to be mentioned in the judgment, impose
a sentence of imprisonment of either description for a term of less than ten years. Explanation
1.—Where a woman is raped by one or more in a group of persons acting in furtherance of
their common intention, each of the persons shall be deemed to have committed gang rape
within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution”
means an institution, whether called an orphanage or a home for neglected woman or children
or a widows’ home or by any other name, which is established and maintained for the
reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of
the hospital and includes the precincts of any institution for the reception and treatment of
persons during convalescence or of persons requiring medical attention or rehabilitation.

 This is a rape case and section 376 describe the punishment of the rape. Therefore 376
is apply on accused no. 1

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  Note- The said section is amended after this case. Many provisions included after that
case in this section

SECTION 34.ACTS DONE BY SEVERAL PERSONS IN FURTHERANCE OF

COMMON INTENTION.2—When a criminal act is done by several persons in furtherance
of the common intention of all, each of such persons is liable for that act in the same manner
as if it were done by him alone.

 Section 34 deals with the common intention to done any act. In this case accused no.1
and 2 having same intention to rape Mathura. Although accused no. 2 failed to do so
caused of highly intoxication.

SECTION 354. ASSAULT OR CRIMINAL FORCE TO WOMAN WITH

INTENT TO OUTRAGE HER MODESTY3.—Whoever assaults or uses criminal
force to any woman, intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.

 This section is apply on Tukaram because he was outrage the modesty of Mathura by
touching her private parts.

ISSUES

 Whether the victim had been subjected to or was under any fear or compulsion such
as would justify an inference of any “passive submission”?

2
Section 34 in The Indian Penal Code
3
Section 354 in The Indian Penal Code

5
ARGUMENT BY THE APPELLANT
 The initiative had come from the girl side. Because the complaint was filed by her
brother against her which was pending enquiry at the very police station and mere
purpose of her these act to do inquiry in her favor.
 In relation to Tukaram (appellant), he had not made any attempt to rape the girl
falsely alleged that he had fondled her private parts after the act of sexual intercourse
by Ganpat appellant.
 There is not any substantive prove that the girl was under the age of 16 years.
 That there is not any medical evidence which clearly proved the sexual intercourse is
done by the appellant. Because there is not any sample found of semen in her vagina
and on her public hair.
 That the girl was habitual to sex and found old rapture on her hymn by the medical
examiner.
 That there was not found any marks on her body which were shows that she had
forcefully raped.

ARGUMENT BY THE RESPONDANT

 The initiative had come from the accused and if such an initiative comes from the
accused she could not have resisted the same on account of the situation in which she
had found herself especially on account of a complaint filed by her brother against her
which was pending enquiry at the very police station.
 It is highly improbable that Mathura on her part would make any overtures or invite
the accused to satisfy her sexual desire.
 That in the doctor report clearly states that the girl age between 14 to 16 years.
 That the medical examination is done after the 20 hours, there is all possibility the girl
was washed herself.
 That the semen sample was found on the cloths of the girls.
 That the girl was with her brother on that circumstance why she is take that kind of
initiative for the sexual intercourse.
 That passive submission due to fear induced by serious threats could not be construed
as willing sexual intercourse.

CASE HISTORY

SESSION COURT JUDGEMENT

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". But
he observed that "the farthest one can go into believing her and the corroborative

6
circumstances, would be the conclusion that while at the Police Station she had sexual
intercourse and that, in all probability, this was with accused Tukaram." He added however
that there was a world of difference between "sexual intercourse" and "rape", and that rape
had not been proved in spite of the fact that the defence version which was a bare denial of
the allegations of rape, could not be accepted at its face value. He further observed: "Finding
Nunshi angry and knowing that Nunshi would suspect something fishy, she (Mathura) could
not have very well admitted that of her own free will, she had surrendered her body to a
Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before
him. This is why-this is a possibility-she might have invented the story of having been
confined at the Police Station and raped by accused no. 1. and then concluded that the
prosecution had failed to prove its case against the appellants. The session court acquitted the
both accused for the same.

HIGH COURT JUDGEMENT

The High Court said that “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, nor can
furnish an answer by the mere fact that the sexual act was not in opposition to such desire or
volition. On the other hand, taking advantage of the fact that Mathura was involved in a
complaint filed by her brother and that she was alone at the police station at the dead hour of
night, it is more probable that the initiative for satisfying the sexual desire must have
proceeded from the accused, and that victim Mathura must not have been a willing party to
the act of the sexual intercourse. Her subsequent conduct in making a statement immediately
to her relatives and to the members of the crowd leaves no manner of doubt that she was
subjected to forcible sexual intercourse.” The Nagpur bench of the Bombay High Court, thus,
set aside the judgment holding that that passive submission due to fear induced by serious
threats could not be construed as willing sexual intercourse. The High Court’s judgment
reflects forward thinking and social sensitivity.

SUPREME COURT JUDGMENT

The onus is always on the prosecution to prove affirmatively each ingredient of the offence. It
was therefore, incumbent on the prosecution to prove all the ingredients of Section 375 of
the Indian Penal Code. The High Court has not given a finding that the consent of the girl
was obtained by putting her in a state of fear of death or of hurt. Therefore, the third clause
of section 375 will not apply. There could be no fear because the girl was taken away by
Ganpat right from amongst her near and dear ones. The circumstantial evidence available is
not only capable of
being construed in a way different from that adopted by the High Court but actually
derogates in no uncertain measure from the inference drawn by it. Secondly, the intercourse
in question is not proved to amount rape We do not, therefore, propose to take the girl at her
word in relation to Tukaram (appellant) and hold that the charge remains wholly unproved
against him.In the result, the appeal succeeds and is accepted. The judgment of the High
7
Court is reversed and the conviction recorded against as well as the sentences imposed upon
the appellants by it are set aside.

CRITICAL ANALYSIS
The case under analysis was an extraordinary decision in complete violation of human rights
of women under the law and the Constitution. As per the judgment given by the Supreme
Court, the main contention raised on behalf of the appellants was that no direct evidence
being available about the nature of the consent of the girl to the alleged act of sexual
intercourse.
The Hon’ble Court relied upon the facts that no marks of injury were found on the person of
the girl after the incident to infer that the “alleged intercourse was a peaceful affair, and that
the story of a stiff resistance having been put up by the girl was all false.” What must be
noticed here is that the victim was an illiterate village orphaned tribal girl, who was there at a
police station involved in a complaint filed by her brother against her lover. People from such
backward classes of society even today, possess an innate fear for the policemen and this is a
case dating back to 1970s. The High Court very rightly observed that at the relevant time 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.
The girl was in the police station in the “dead hour of night” stuck amidst two men in
authority. The High Court found it impossible to believe that she might have taken initiative
for intercourse. It is indeed unreasonable of the Apex Court of the land to expect a young girl
14-16 years old, when trapped by two policemen inside the police station, to successfully
raise alarm for help. Does it seriously expect the girl, a labourer, to put up such stiff
resistance against well-built policemen so as to have substantial marks of physical injury?
Does the absence of such marks necessarily imply absence of stiff resistance?
The Supreme Court actually believed that Mathura had “invented” the story of rape, and even
the confinement in the police station in order “to sound virtuous” before Ashok. The Court
believed that even when her brother, her employer, and her lover were waiting outside the
police station, a girl of 14-16 years during those times could not let go of the opportunity of
having sexual intercourse with two unknown policemen, and that too in the area adjoining the
police station latrine.

8
The Supreme Court only focused on third component of the provision which applies when
rape is committed with the woman’s consent, when “her consent has been obtained by putting
her in fear of death or hurt”. But the second component of Section 375 is when rape occurs
without her consent. There is a clear difference in law, and common sense, between
‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily
true. Nor is absence of resistance necessarily indicative of consent. It appears from the facts
as stated by the Court and its holdings that there was submission on the part of Mathura. The
finding on the crucial element of consent was missing in the judgement. Pre-marital sex with
a man in those days was considered a social stigma for a woman. Questions were thus, raised
over Mathura’s character which had absolutely nothing to do with the case. She was
stigmatized for two things – for having pre-marital sex and for being a rape victim. Even the
Sessions Court Judge had made a shocking inference in regard to this. He observed that
Mathura was habituated to sexual intercourse and Ganpat was also no novice. The stains of
semen on his pyjama could be due to him having sexual intercourse with persons other than
Mathura and the seminal stains on Mathura could be similarly accounted for. He attributed
the fact of finding semen stains on her clothes to the fact that “she was living with Ashok and
very much in love with him”.

The Supreme Court for lack of any finding relating to “fear of death or hurt” which could
vitiate consent, held Ganpat not guilty under Section 375. While the Honorable High Court
on the contrary had taken the opposite view. The fact that semen was found neither on the
pubic hair nor on the vaginal-smears taken from her person was considered to be of no
consequence by reason of the circumstance that the girl was examined by the lady doctor
about 20 hours after the event, and of the probability that she had taken a bath in the
meantime. 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 erred in appreciating the difference between consent and “passive submission”.
In coming to the conclusion that the sexual intercourse in question was forcible and amounted
to rape, the High Court said that “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, nor can furnish an answer by the mere fact that the sexual act was not in opposition to
such desire or volition. On the other hand, taking advantage of the fact that Mathura was
involved in a complaint filed by her brother and that she was alone at the police station at the
dead hour of night, it is more probable that the initiative for satisfying the sexual desire must

9
have proceeded from the accused, and that victim Mathura must not have been a willing party
to the act of the sexual intercourse.
While on the other hand, Ganpat was acquitted by the Supreme Court owing to the apparent
consent by Mathura. What is even more egregious in the decision is the rationale employed
by the Hon’ble Supreme Court for holding Tukaram not guilty. He was acquitted because the
court believed that Mathura’s words were inconsistent and that as she had lied about raising
an alarm, she must have lied about Tukaram molesting her also. The most disappointing part
in judgment is that the Supreme Court gave such a decision when on the same set of facts, the
High Court in a well-reasoned judgment had held the two policemen guilty.

LATER AMENDMENT ,SUGGESSION AND RECOMMENDATIONS

Mathura case is a cause of various changes in criminal law and after that case the criminal
law is made more victim friendly.Section 114-A in the Indian Evidence Act, 1832, the
presumption of guilt of the accused if the victim in her statement admits that she did not
consent for the sexual intercourse, was accepted and inserted in the Criminal Law
(Amendment) Act, 1983. Since the presumption under Section 114-A is rebuttable, the non
insertion of the explanation to Section 375 or adding of free and voluntary consent in the
section makes no change from the earlier provision. The Criminal Law (Amendment) Act,
1983, amended Sections 375 and 376 and inserted Sections 376-A, 376-B, 376-C and 376-D

Severe and certain punishment in a time bound manner, of the rapists has some deterrent
value. Arrest alone may not constitute a strong societal response. Lengthy prison sentences
have some behavior-altering deterrent values. Many well-known jurists and I have advocated
capital punishment for the criminals who commit rape as it is an offence worse than murder
so far as its impact is concerned.

10
CONCLUSION
The Supreme Court in the case Tukaram & Anr. v. State of Maharashtra evidently enough,
tragically failed to distinguish between “active consent” and “passive submission”. Such
submission due to fear cannot imply consent. It is the very point where the reasoning of the
Supreme Court faltered, thereby resulting in shocking miscarriage of justice.
Though the case led to the radical amendments in rape laws in the Indian Penal Code making
them more victim-friendly, the decision of the Supreme Court in the case was indeed a big
blot on the face of Indian Judiciary. The Court should have adopted a more sensitive attitude
towards the victim. There is not a single word in the judgment condemning the very act of
calling Mathura, and detaining her at the police station which was in gross violation of the
law. Nor is there a single word condemning the use of the police station as a theatre of rape or
submission to sexual intercourse. There is no direction to the administration to follow the
law. The Court unfortunately enough, gave no consideration whatsoever to the socio-
economic status, the lack of knowledge of legal rights, the age of victim, lack of access to
legal services, and the fear complex which haunts the poor and the exploited in Indian police
stations and that too an orphaned illiterate tribal girl of fourteen or sixteen.

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REFERENCES

STATUTES
Indian Penal Code, 1860

BOOKS
Indian Penal Code, Rattan Lal & Dhiraj Lal

ONLINE SOURCES
www,indiankanoon.com

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