Case Commentaries

CRIMINAL LAW

TUKA RAM AND ANR V. STATE OF MAHARASHTRA

(1979) 2SCC 143

Mr Rakshit Ranjan

THE BACKGROUND OF THE CASE


Mathura was a young and orphan girl living with her brother in the state of Maharasthra. She was employed by a woman named Nushi as a domestic helper. Mathura fell in love with the nephew of her employer, Ashok. They decided to get married. A complaint was filed by the brother of Mathura stating that she had been kidnapped. All the above mentioned persons were summoned to the police station. Mathura was raped by two constables named Tukaram and Ganpat in the police station itself.


THE BAR AND BENCH OF THE CASE


● Size of the Bench: Full Bench

● Names of judge(s) comprising the Bench: S/Shri A.D Koshal, Jaswant Singh and P.S Kailasam.

● Name of the author of the Judgement: A. Koshal.


MATERIAL FACTS OF THE CASE


Mathura was an orphan living with her brother. They both worked as labourers. They were employed as house helps for a woman, and Mathura was romantically involved with her employer's nephew. They decided to get married. On March 26,1972 the brother of Mathura filed a complaint against the boy and his Aunt for the offence of kidnapping Mathura. The three of them were summoned at the police station. All the people involved other than Mathura herself were asked to leave the police station and she was taken to a washroom. Therein she was stripped and examined in the light of a torch, Post this she was allegedly raped by the two police constables. They locked her in the washroom and one of them raped her while the other kept a lookout. Then the other person entered and touched her private parts but could not rape her because of being extremely intoxicated. Girl returned to relatives and narrated the entire incident.


THE QUESTION BEFORE THE COURT


1. Whether the act of sexual intercourse took place between the complainant and the accused?

2. If the said act took place, was it consensual or not?

3, Did the accused molest the prosecutrix?


POINT OF LAW


Section 375 of the Indian Penal Code relating to ''Rape".

Section 354 of the Indian Penal Code relating to ''assault or criminal force to women with intent to outrage her modesty"


Session Court's Decision

The session court acquitted the accused. The court observed that there were no bodily injuries on the complainant. The fact of fear of injury or death has not been proved and the medical report of the examining doctor is not sufficient to prove the age of the girl to be between 14-16 years. It further observed that semen found on clothes and pubic hair could have been from having intercourse with another person but the semen found on the accused was justified as nightly discharge. The judge recorded that given the fact that Mathura was 'habitual to sexual intercourse', it is possible that she herself could have invited the accused for sex.


He held that in order to maintain a clean image in front of her lover, Mathura concocted a false story of being raped.


The sessions court judge called Mathura “a shocking liar whose testimony was riddled with falsehood and improbabilities.”


High Court Decision


The high court clearly defined the much needed distinction between consent and passive submission to threat. In a legal system where fraudulent promise to marriage to extract sexual favors is also considered a form of rape, passive submission to threat being considered form of consent was nothing short of a travesty of justice.


The inconsistent distribution of semen on clothes and body was considered a normal consequence of the fact that the medical examination took place 20 hours after the incident and that was sufficient time for Mathura to take a bath.


The court also considered the fact that the accused were previously unknown to the victim and it was highly improbable that she would invite them for consensual intercourse.


The court decided that the constables were in a position of authority and could have threatened the victim. On the basis of these observations, the court found them guilty.


Appeal to the Apex Court

The Supreme court overruled the high court's decision and acquitted the appellants. The court held that Mathura must not have raised any alarm because her brother and lover were standing right outside the police station and no one heard anything . The factum of no bodily injury was considered as the deciding point of this case. The Supreme court did not agree with the high court's conclusion that the intercourse was a result of passive submission to threat and not active participation and consent. Mathura had previously named Tukaram as the main perpetrator of the offence and switched it to ganpat later on. This was considered as a substantial and material improvement in the statement and it cast a shadow of doubt on the entire testimony of the prosecutrix.


DETAILED ANALYSIS OF THE CASE


The case has been one of the most criticized judgments of Indian judicial history. The Judgment was riddled with bias, hasty generalization and technical irregularities. The following questions can be raise against the conclusions of the court-


1. If the medical report submitted by the examining doctor was insufficient to determine the age of Mathura at the time of the incident, why wasn't further inquiry ordered as it was of material importance to decide the case. Section 375(6) states clearly that sexual intercourse with a woman below 16 years of age is an offence of rape notwithstanding whether it was consensual or non-consensual.[1]


2. If the session's court considered the semen present on the clothes of the prosecutrix a result of intercourse with another man, why was the semen present on the clothes of the constables considered nightly discharge solely based on gender roles?


3. Why wasn't the improbability of the fact that the prosecutrix would indulge in consensual sexual intercourse with two strangers while her brother, lover and a future in-law stood waiting outside for her? What was the basis of declaring the prosecutrix to be so promiscuous that she won't let any possibility of sexual intercourse let slip?


4. How was the previous sexual life of the prosecutrix of any relevance to the case? Why was the rule of evidence that no proof regarding bad character of a party can be admissible as long as the party concerned itself has not presented any proof of good character for oneself?[2]


5. Why did the court not consider the fact that while isolating the victim from her family the accused were in a position of authority over all of them? Why was the inebriated state of one of the policemen an irrelevant to the case despite him being on duty?


6. Why was the distinction between active consent and passive submission to threat disregarded by the Supreme Court?


7. Why was the fact that the accused were previously unknown to the victim and the lights were turned off when the alleged incident took place not taken into account while dealing with the change in stance of the prosecutrix about who the main perpetrator was?


8. What was evidence on which the session's court decided that it would be tactics employed by the prosecutrix to appear virtuous in front of her lover?


All these points taken together to paint the bigger picture, inevitably lead us to the conclusion that the decision of the court in the case was perverse and hasty. The character of the victim was questioned and attacked throughout the judicial process. The sexual promiscuity of the prosecutrix was somehow of great interest to the court.


However, there were certain factors both in law and fact that hurt the case of the prosecution-


1. There was no substantive evidence led by the prosecution to establish the factum of sexual intercourse. The medical examination of the victim took place 20 hours after the alleged incident and no hard piece of medical evidence could be produced to establish any bodily injury. The semen found on the prosecutrix and the accused could not be identified as the DNA recognition technology was not present back then and was only invented in the year 1984. As in most rape cases, there was no eye-witness present other than the complainant herself. The report of the doctor regarding Mathura being underage (14-16 years) was also not adequate.


2. The burden of proof was on the prosecution and hence presumption of innocence in favor of the accused, as per the law back then and as no substantive evidence was produced, the case was to be decided on the basis of circumstantial evidence. The rule of evidence in the matter is very clear. The chain of events is to be so established that there can be no other reasonable conclusion other than the guilt of the accused. The prosecution story had failed to do this as the defense had managed to create a parallel possibility of consensual peaceful intercourse.


3. Falsus in uno, falsus in omnibus. In a case where circumstantial evidence is already inadequate, a material improvement in the statement of the sole eye-witness can be fatal to the prosecution's case. The prosecutrix identified Tukaram as the main perpetrator initially and at a later stage of the proceedings switched to Ganpat. This was the final nail in the coffin.


AFTERMATH OF THE CASE-


Post acquittal of the accused and character assassination of the victim, there was a great public resentment towards the entire system. The government was under severe pressure to bring substantial changes in the rape laws of the country to make them more responsive towards the needs of the victims. Following steps were taken to further the rape law regime in the country.


This resulted in the Criminal Law Amendment Act being passed in 1983[3]. This act amended Section 114(A) of the Indian Evidence Act, which stated that if the victim does not consent to sexual intercourse then the Court would presume that she did not consent.


Section 376 of the IPC was also amended, making custodial rape an offense punishable with not less than 7 years imprisonment. This section shifted the burden of proof from the victim to the offender, once sexual intercourse is established.


The amendment also banned publication of victims’ identities and held that rape trials should be conducted as in-camera proceedings.


CONCLUSION


Rape in India and worldwide is an infamous crime for the double victimisation of the complainant. First, at the hands of the perpetrator and secondly at the hands of the judicial system and society. The character assassination of a person for simply being the victim of a crime is condemnable beyond the scope of words. These ill aspects of the judicial system were highlighted in the much criticized Mathura rape case. The case lead to a huge hue and cry among the masses and the subsequent amendment in criminal law to make it more sensitive towards the victims of sexual offences such as rape. The precedents set by the Supreme court since independence to enhance women security in the country are in stark contraction with Mathura case judgment. Rules of Evidence regarding consent, burden of proof and age of the victim are major topics for contemplation in the light of the facts of this case. The shift of burden of proof from prosecution to defense is a much debated topic in the legal fraternity. Some are of the opinion that because sexual offenses mostly take place in secrecy away from the reach of independent witnesses, it is fair to expect the defense to prove innocence rather than prosecution proving guilt. On the other hand there are those who argue that proving a negative is extremely difficult and the benefit of presumption of innocence should be provided to persons accused of any and every offence.


In India, women safety laws are constantly under severe pressure from society and rightly so. The judiciary has time and again responded to public needs. The Madhya Pradesh High court in Imratlal vs State of M.P[4] held that discharge of semen inside vagina is not necessary to prove rape. Conviction can be based on the sole testimony of the victim.


The Orissa High court in the case of Ghanshyam Mishra vs State[5] held that when a person takes advantage of his position to commit a sexual offence then the quantum of punishment needs to be higher as it is an aggravating circumstance.


Law does not operate in a vacuum. Law is the mirror of the society and in cases like the Mathura Rape case, society is forced to see its reflection in a broken glass. The rape law regime has come a long way since the 1970s but it still has a long road ahead. The judiciary and the legislature alone cannot create the environment of safety if we as a community do not partake. We must keep pushing our leaders to come up with better solutions for the eradication of sexual offenses from our country. We must always remember that the law is for the vigilant and not the ignorant.



References:


[1] The Indian Penal Code, 1860, Act No. 45 of 1860.

[2] Section 53, The Indian Evidence Act, 1872, Act no, 1 of 1872.

[3] Criminal Law (Second Amendment) Act, 1983, Act no, 043 of 1983.

[4] 1996 (0) MPLJ 662

[5] AIR 1957 Ori 78

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