NDLI: Tuka Ram and Anr. Vs. State of Maharashtra

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Indian Penal Code Sec. 375
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Penal Code (45 of 1860)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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.The prosecution alleged that appellant No. I, the Police Head Constable and appellant No. 2 Police Constable attached to Desai Gunj Police Station raped Mathura (P.W. 1) in the police station. Mathura's parents died when she was a child and she was living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and during the course of her visits to that house she came in contact with Ashok who was the sister's son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife. 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. The report was recorded by Head Constable Baburao, at whose instance all the three persons complained against as well as Mathura were brought to the police station at about 9 p.m. and the statements of Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok started to leave the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. The case of the prosecution is that immediately thereafter Ganpat, appellant No. l, took Mathura into a latrine raped her and thereafter dragged her to a Chhapri on the back side and raped her again. Thereafter, appellant No. 2 fondled with her private parts but could not rape her because he was in a highly intoxicated condition. Nunshi, Gama and Ashok who were waiting outside the police station for Mathura grew suspicious. They, therefore shouted and attracted a crowd. Thereafter, a complaint was lodged. Mathura was examined by a doctor who found that she had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the traces of semen in the pubic hair and vaginal-smear Slides. The presence of semen was, however, detected on the girl's clothes. The Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of occurrence. He held that Mathura was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". The Court came to the conclusion that she had sexual intercourse while at the police station but rape had not been proved and that she was habituated to sexual inter-course, but finding that Nunshi and Ashok would get angry with her, she had to sound virtuous before them. Really speaking, she would have surrendered her body to the Constable. The District Judge, therefore, acquitted the appellants. The High Court reversed the order of acquittal. The High Court found that the sexual intercourse was forcible and amounted to rape. Since both the accused were strangers to Mathura, it was highly improbable that Mathura would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However, the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same. About appellant Tuka Ram, the Court believed that he had not 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. In an appeal by special leave, the appellant contended that:- (I) there is no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse. Therefore, it had to be inferred from the available circumstances 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." (2) The alleged intercourse was a peaceful affair and the story of shit resistance is all false. (3) The averments of the girl that she had shouted loudly is false. (4) The reasoning of the High Court that the girl must have submitted to sexual intercourse because of the fear does not amount to consent. Secondly, the High Court lost sight of the fact that Mathura and Gama , had started to leave the police station and the case is that at that time Ganpat caught her.
Judge	Hon'ble Mr. Justice A.D. Koshal
Neutral Citation	1978 INSC 178
Petitioner	Tuka Ram And Anr.
Respondent	State Of Maharashtra
SCR	[1979] 1 S.C.R. 810
Judgement Date	1978-09-15
Case Number	64

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