{"id":257,"date":"2020-04-23T10:29:47","date_gmt":"2020-04-23T10:29:47","guid":{"rendered":"http:\/\/lexforti.com\/legal-news\/?p=257"},"modified":"2021-01-17T12:15:11","modified_gmt":"2021-01-17T12:15:11","slug":"tukaram-v-state-of-maharashtra","status":"publish","type":"post","link":"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/","title":{"rendered":"TUKARAM V. STATE OF MAHARASHTRA"},"content":{"rendered":"\n<p><strong>BENCH:<\/strong> \u00a0Jaswant Singh, P.S. Kailasam and A.D. Koshal<\/p>\n\n\n\n<p><strong>CASE NUMBER: <\/strong>\u00a0Criminal Appeal No. 64 of 1977<\/p>\n\n\n\n<p><strong>DATE OF\nDECISION:<\/strong> 15\/09\/1978<\/p>\n\n\n\n<p><strong>CITATION:<\/strong> 1979 AIR (SC) 185: 1979(1)\nSCR 810: 1979(2) SCC 143<\/p>\n\n\n\n<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_47_1 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title\">Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"ez-toc-toggle-icon-1\"><label for=\"item-6a226200ebbe5\" aria-label=\"Table of Content\"><span style=\"display: flex;align-items: center;width: 35px;height: 30px;justify-content: center;direction:ltr;\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/label><input  type=\"checkbox\" id=\"item-6a226200ebbe5\"><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-5'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#FACTS_OF_THE_CASE\" title=\"FACTS OF THE CASE:\">FACTS OF THE CASE:<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-5'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#Proceedings_at_the_trial_and_high_court\" title=\"Proceedings at the trial and high\ncourt:\">Proceedings at the trial and high\ncourt:<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-5'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#OBSERVATIONS_BY_THE_SUPREME_COURT\" title=\"OBSERVATIONS BY THE SUPREME COURT:\">OBSERVATIONS BY THE SUPREME COURT:<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-5'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#FINAL_JUDGEMENT\" title=\"FINAL JUDGEMENT:\">FINAL JUDGEMENT:<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-5'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#AFTERMATH_THE_DECISION\" title=\"AFTERMATH THE DECISION:\">AFTERMATH THE DECISION:<\/a><\/li><\/ul><\/nav><\/div>\n<h5 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"FACTS_OF_THE_CASE\"><\/span><strong>FACTS OF THE CASE:<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h5>\n\n\n\n<ul><li>Appellant\nNo. 1 was a Head Constable of police, was attached to the Desai Gunj\npolice station and so was appellant No.2, who was a police constable.\nMathura (PW 1) was the girl who is said to have been raped. Her parents\ndied when she was a child and she was living with her brother, Gama (PW 3),\nboth of them worked as laborers to earn a living. Mathura used to go the\nhouse of Nushi (PW 2) for work and during the course of her visits to that\nhouse, came into contact with Ashok, who was the sister\u2019s son of Nushi and\nwas residing with the latter. The contact developed into an intimacy so\nthat Ashok and Mathura decided to become husband and wife.<\/li><li>On\nthe 26 March\u2019 1972, Gama lodged report Ex. P-8 at police station Desai\nGunj alleging that Mathura had been kidnapped by Nushi, her husband Laxman\nand the said Ashok. The report was recorded by Head Constable Baburao (PW\n8) at whose instance all the three persons complained against as well as\nMathura was brought to the police station at about 9 p.m. later the\nstatements of the two lovers were recorded. By then it was about 10.30 p.m.\nand Baburao left the police station to bring some documents and have his\nmeal. At that time the two appellants were present at the police station.<\/li><li>After\nBaburao had gone away Mathura, Nushi, Gama and Ashok started leaving the\npolice station. The appellants, however, asked Mathura to wait at the\npolice station and told her companions to move out. Thereafter Ganpat (appellant)\ntook Mathura into a latrine situated at the rear of the main building,\nloosened her under-wear, lit a torch and stared at her private parts. He\nthen dragged her to a chhapri which served the main building. In the\nchhapri he felled her on the ground and raped her in spite of protests and\nstiff resistance on her part. He departed after satisfying his lust and\nthen Tukaram (appellant), who was seated on a cot nearby, came to the\nplace where Mathura was and forded her private parts. He also wanted to\nrape her but was unable to do so for the reason that he was in a highly\nintoxicated condition.<\/li><li>Nushi,\nGama and Ashok, who had been waiting outside the police station for\nMathura grew suspicious when they found the lights of the police station\nbeing turned off and its entrance door being closed from within. They went\nto the rear of the police station in order to find out what the matter\nwas. No light was visible inside and when Nushi shouted for Mathura there\nwas no response. The noise attracted a crowd and sometime later Mathura\nemerged from the rear of the police station and informed Nushi and Gama that\nGanpat had compelled her to undress herself and had raped her.<\/li><li>Nushi\ntook Mathura to Dr. Khune (PW 9) and the former told him that the girl was\nsubjected to rape by a police constable and a Head Constable in police\nstation Desai Gunj. The doctor told them to go to the police station and\nlodge a report there.<\/li><li>A\nfew persons brought Head Constable Baburao from his house. He found that\nthe crowd had grown restive and was threatening to beat Ganpat appellant\nand also to burn down the police station. Baburao however, was successful\nin persuading the crowd to disperse and thereafter took down the statement\n(Ex. 5) of Mathura.<\/li><li>Mathura\nwas examined by Dr. Kamal Shastrakar at 8 p.m. on the 27 March\u2019 1972. The\ngirl had no injury on her person. Her hymen revealed old ruptures. The\nvagina admitted two fingers easily. There was no matting of the pubic\nhair. The age of the girl was estimated by the doctor to be between 14 and\n16 years. A sample of the pubic hair and two vaginal-smear slides were\nsent by the doctor in a sealed packet to the Chemical Examiner who found\nno traces of semen therein. Presence of semen was however detected on the\ngirl\u2019s clothes and the pyjama which was taken off by Ganpat.<\/li><li>This\nappeal by special leave was filed against the judgment dated 12 Oct\u2019 1976\nof the High Court of Judicature at Bombay (Nagpur Bench).<\/li><\/ul>\n\n\n\n<h5 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"Proceedings_at_the_trial_and_high_court\"><\/span><strong>Proceedings at the trial and high\ncourt:<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h5>\n\n\n\n<ul><li>The\n<strong>learned Sessions Judge<\/strong> found\nthat there was no satisfactory evidence to prove that Mathura was below 16\nyears of age on the date of the occurrence. He further held that she was\n\u201ca shocking liar\u201d whose testimony \u201cis riddled with falsehood and\nimprobabilities\u201d. But he observed that \u201cthe farthest one can go into\nbelieving her and the corroborative circumstances, would be the conclusion\nthat while at the Police Station, she had sexual intercourse and that, in\nall probability, this was with accused No. 2.\u201d He added however that there\nwas a world of difference between \u201csexual intercourse\u201d and \u201crape\u201d, and\nthat rape had not been proved. <\/li><\/ul>\n\n\n\n<ul><li>He further observed: \u201cFinding Nushi angry and knowing that Nushi would suspect something fishy, Mathura could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. This is why it is a possibility she might have invented the story of having been confined at the Police Station and raped by accused No. 2. Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastratkar and accused No. 2 and then concluded that the prosecution had failed to prove its case against the appellants.<\/li><\/ul>\n\n\n\n<ul><li>The\n<strong>High Court<\/strong> took note of the\nvarious findings arrived at by the learned Sessions Judge and then itself\nproceeded to shift the evidence bearing in mind the principle that a\nreversal of the acquittal would not be justified if the view taken by the\ntrial court was reasonably possible even though the High Court was\ninclined to take a different view of the facts. <\/li><li>The\nfact that semen was found neither on the pubic hair nor on the\nvaginal-smears was considered to be of no consequence by reason of the\ncircumstance that the girl was examined by the lady doctor about 20 hours\nafter the event, and of the probability that she had taken a bath in the\nmeantime. <em>The High Court proceeded\nto observe that although the learned Sessions Judge was right in saying\nthat there was a world of difference between sexual intercourse and rape,\nhe erred in appreciating the difference between consent and \u201cpassive\nsubmission\u201d.<\/em> In coming to the conclusion, the High Court remarked:<\/li><\/ul>\n\n\n\n<p><em>\u201cBesides\nthe circumstances that emerge from the oral evidence on the record, we have to\nsee in what situation Mathura was at the material time. Both the accused were\nstrangers to her. It is therefore, indeed, highly improbable that Mathura on\nher part would make any overtures or invite the accused to satisfy her sexual\ndesire. Indeed it is also not probable that a girl who was involved in a\ncomplaint filed by her brother would make such overtures or advances. The\ninitiative must, therefore, have come from the accused and if such an\ninitiative comes from the accused, indeed she could not have resisted the same\non account of the situation in which she had found herself especially on\naccount of a complaint filed by her brother against her which was pending enquiry\nat the very police station.<\/em><\/p>\n\n\n\n<ul><li>In relation to Tukaram\n, the High Court did not believe that he had made any attempt to rape the girl\nbut took complainant\u2019s word for granted in so far as he was alleged to have\nfondled her private parts after the act of sexual intercourse by Ganpat. It was\nin these premises that the High Court convicted and sentenced the two\nappellants.<\/li><\/ul>\n\n\n\n<h5 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"OBSERVATIONS_BY_THE_SUPREME_COURT\"><\/span><strong>OBSERVATIONS BY THE SUPREME COURT:<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h5>\n\n\n\n<ul><li>Supreme\nCourt observed that \u201cIn coming to the conclusion that the consent of the\ngirl was a case of \u2018passive submission\u2019, the High Court mainly relied on\nthe circumstance that at the relevant time the girl was in the police\nstation where she would feel helpless in the presence of the two\nappellants who were persons in authority and whose advances she could\nhardly repel all by herself and inferred that her submission to the act of\nsexual intercourse must be regarded as the result of fear. <em>This reasoning suffers from two errors.<\/em>\nIn the first place, it loses sight of the fact which was admitted by the\ngirl in cross-examination and which has been thus described in the\nimpugned judgment.<\/li><li>She\nasserted that after Baburao had recorded her statement before the occurrence,\nshe and Gama had started to leave the police station and were passing\nthrough the front door. While she was so passing, Ganpat caught her. She\nstated that she knew the name of accused No. 2 as Ganpat from Head\nConstable Baburao while giving her report. She stated that immediately\nafter her hand was caught by Ganpat she cried out. However, she was not\nallowed to raise the cry when she was being taken to the latrine but was\nprevented from doing so. She stated that she had raised alarm even when her\nunderwear was loosened at the latrine and also when Ganpat was looking at\nher private parts with the aid of a torch. <\/li><\/ul>\n\n\n\n<ul><li>Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as \u2018passive submission\u2019.\u201d<\/li><\/ul>\n\n\n\n<ul><li>Secondly,\nit has to be borne in mind that the onus is always on the prosecution to\nprove affirmatively each ingredient of the offence it seeks to establish\nand that such onus never shifts. It was, therefore, incumbent on it to\nmake out that all the ingredients of Section 375 of the Indian Penal Code\nwere present in the case of the sexual intercourse attributed to Ganpat\nappellant.<\/li><li>Further,\nfor circumstantial evidence to be used in order to prove an ingredient of\nan offence, it has to be such that it leads to no reasonable inference\nother than that of guilt. We have already pointed out that the fear which\nis spoken of is negotiated by the circumstance that the girl is said to\nhave been taken away by Ganpat right from amongst her near and dear ones\nat a point of time when they were all leaving the police station together\nand were crossing the entrance gate to emerge out of it. The\ncircumstantial evidence available, therefore, is not only capable of being\nconstrued in a way different from that adopted by the High Court but\nactually derogates in no uncertain measure from the inference drawn by\nit.\u201d<\/li><li>Finally\nSupreme Court observed that \u201cThe only allegation found by the High Court\nto have been brought home to Tukaram appellant is that he fondled the\nprivate parts of the girl after Ganpat had left her. The High Court itself\nhas taken note of the fact that in the FIR, the girl had made against\nTukaram serious allegations on which she had gone back at the trial and\nthe acts covered by which she attributed in her deposition to Ganpat\ninstead. Now if the girl could alter her position in regard to these\nserious allegations at will, where is the assurance that her word is\ntruthful in relation to what she now says about Tukaram. The High Court\nappears to have been influenced by the fact that Tukaram was present at the\npolice station when the incident took place and that he left it after the\nincident. This circumstance, in our opinion, is not inculcator and is\ncapable of more explanations than one.\u201d<\/li><\/ul>\n\n\n\n<h5 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"FINAL_JUDGEMENT\"><\/span><strong>FINAL JUDGEMENT:<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h5>\n\n\n\n<p>Supreme Court\nheld that \u201cwe conclude that the sexual intercourse in question is not proved to\namount to rape and that no offence is brought home to Ganpat.\u201d With regard to\nTukaram, Court held that\u00a0\u201cWe do not, therefore, propose to take the girl\nat her word in relation to Tukaram appellant and hold that the charge remains\nwholly unproved against him.\u201d<\/p>\n\n\n\n<h5 class=\"wp-block-heading\"><span class=\"ez-toc-section\" id=\"AFTERMATH_THE_DECISION\"><\/span><strong>AFTERMATH THE DECISION:<\/strong><span class=\"ez-toc-section-end\"><\/span><\/h5>\n\n\n\n<p>After the\nSupreme Court acquitted the accused, there was public outcry and protests,\nwhich eventually led to <strong><em>THE CRIMINAL\nLAW (SECOND AMENDMENT) ACT, 1983<\/em><\/strong> in which:<\/p>\n\n\n\n<ul><li><em>Section 114(A) was added to Evidence Act<\/em> which states that if the victim says that she did\nnot consent to the sexual intercourse, the Court shall presume that she did not\nconsent (rebuttable presumption of law).<\/li><li>Section 376(A), Section 376(B), Section 376(C),\nSection 376(D) in IPC were also added which made custodial rape punishable\n(which were further amended in 2013 after Nirbhaya Rape Case).<\/li><li>Besides defining custodial rape, the amendment\nshifted the burden of proof from the accuser to the accused once intercourse\nwas established; it also added provisions for in-camera trials, the prohibition\non the victim identity disclosure and tougher sentences.<\/li><\/ul>\n","protected":false},"excerpt":{"rendered":"<p>BENCH: \u00a0Jaswant Singh, P.S. Kailasam and A.D. Koshal CASE NUMBER: \u00a0Criminal Appeal No. 64 of 1977 DATE OF DECISION: 15\/09\/1978 CITATION: 1979 AIR (SC) 185: 1979(1) SCR 810: 1979(2) SCC 143 FACTS OF THE CASE: Appellant No. 1 was a Head Constable of police, was attached to the Desai Gunj police station and so was [&hellip;]<\/p>\n","protected":false},"author":167,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[26],"tags":[],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v21.8.1 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>TUKARAM V. 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Koshal CASE NUMBER: \u00a0Criminal Appeal No. 64 of 1977 DATE OF DECISION: 15\/09\/1978 CITATION: 1979 AIR (SC) 185: 1979(1) SCR 810: 1979(2) SCC 143 FACTS OF THE CASE: Appellant No. 1 was a Head Constable of police, was attached to the Desai Gunj police station and so was [&hellip;]\" \/>\n<meta property=\"og:url\" content=\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/\" \/>\n<meta property=\"og:site_name\" content=\"LexForti\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/Lexforti\/\" \/>\n<meta property=\"article:author\" content=\"https:\/\/www.facebook.com\/Lexforti\" \/>\n<meta property=\"article:published_time\" content=\"2020-04-23T10:29:47+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2021-01-17T12:15:11+00:00\" \/>\n<meta name=\"author\" content=\"LexForti Legal News Network\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@https:\/\/twitter.com\/lex_forti\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"LexForti Legal News Network\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"11 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/#article\",\"isPartOf\":{\"@id\":\"https:\/\/lexforti.com\/legal-news\/tukaram-v-state-of-maharashtra\/\"},\"author\":{\"name\":\"LexForti Legal News Network\",\"@id\":\"https:\/\/lexforti.com\/legal-news\/#\/schema\/person\/dc82860cbb04dab62a7b0a28b0cabc88\"},\"headline\":\"TUKARAM V. 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