CITATION: AIR 1979 SC 185

BENCH: A.D. Koshal, Jaswant Singh, and P.S. Kailasam

This article has been written by Payodhi Daschaudhuri of Semester 4, pursuing BA LLB from School of Law and Justice, Adamas University.

INTRODUCTION

Women, irrespective of the nation which they live in, have always been subjected to severe atrocities since ages. And when those atrocities come down to rape cases, then the statistical analysis of both developed and developing countries is quite overwhelming. Speaking about India’s scenario, according to a report published by Statista Research Department in 2021, the total number of rape cases reported in India amounts to 31 thousand. Apart from these, there are thousands of other unreported cases which are prevailing. According to an article published in the national daily- The Hindu, in 2022, India, on an average, faces around 86 rape cases on women per day which is immensely disturbing. Many laws and statues have been implemented in this regard, but the crimes are also getting heinous with each passing day. But these crimes can only be modulated when justice shall be furnished with reasoning and rationale. The aforementioned case, which is popularly known as Mathura Rape case, is a landmark case as well as rape and its laws are concerned. The tragedy occurred in the Maharashtra district of Chandrapur in 1972, and it rocked the nation. The Supreme Court’s ruling sparked widespread indignation throughout the country. Several rallies were planned against the ruling by activists such as Vasudha Dhagamwar (who filed an open letter to the Chief Justice of India on the subject) and Upendra Baxi, Raghunath Kelkar and Lotika Sarkar. It also prompted more reflection and a review of legislation on rape in India, as well as a redefining of consent.

This infamous case of Tukaram vs State of Maharashtra throws light upon custodial rape and the evidence and arguments required to substantiate prove a commission of rape on a victim. Mathura, a young tribal girl, was reportedly raped by two officers in the grounds of Desaiganj Police Station in Maharashtra’s Gadchiroli district on March 26, 1972. Following the acquittal of the accused by the Supreme Court, there was public outrage and protests, which finally led to modifications to the Indian Rape Law via the Criminal Law Amendment Act, 1983. The decision of Justices Jaswant Singh, Kailasam, and Koshal in this case was widely criticised and ridiculed for its logical, legal, and linguistic flaws, as well as its vague and sexist tone. The aftermath of the case proved to be very successful and enlightening in the field of criminal law, as it has opened new pathways and provisions as far as rape cases are concerned. 

BACKGROUND

The facts of the case revolve around an Adivasi orphan named Mathura was a of age between 14-16 years. Mathura’s parents died when she was a toddler and she lived with her brother Gama. Mathura used to work as a helper at Nunshi’s house and allegedly, she got involved in sexual relations with Nunshi’s nephew Ashok. She wanted to marry Ashok, but her brother strictly objected it. In order to sabotage Ashok and save her sister from the shackles of the Nunshi’s family, he filed a kidnapping case against Ashok and his family on 26th March 1972 at Desai Gunj police station. After filing the complaint, head constable Baburao summoned Ashok, Nunshi, Gama, and Mathura to the police station at 9:00 pm for recording their statements. It was 10:30 p.m. when the statements were taken, and Baburao went for his residence, asking the four of them to follow him. While Mathura, Gama, Ashok, and Nunshi were departing, Constable Ganpat invited Mathura to accompany him inside. He sexually attacked her in the restroom by shining a torch on her private regions. Then he abducted her and raped her in the rear of the police station. Tukaram, the head policeman, sexually abused her by fondling her private parts but was unable to rape her due to his intoxication. There were no new ruptures discovered during the medical evaluation. In addition, no semen was discovered in her pubic hair. However, the same was discovered on her clothing. Moreover, after getting medically examined by Dr Kamal Shastrakar, no bodily injuries were found on Mathura’s body which in turn weakened the arguments in her favour. The appellants (constables Ganpat and Tukaram) were acquitted by the session court, but the verdict was reversed by the Bombay high court. The session court ruled that the girl was ‘habitual to sexual intercourse’ and that this was an instance of passive submission, but the high court ruled that the passive submission was due to threat and that the consent was not free. Afterwards, the petition was filed in Supreme Court of India.

ISSUES RAISED

The following issues have been raised in the aforementioned case:

• Whether the prosecution established all of the elements of the aforementioned offences?
• Is Mathura’s submission to the act of sexual intercourse fearful or voluntary?
• Is the High Court’s decision to convict the appellant justified?
• Whether the appellants violated Sections 354 and 376 of the Indian Penal Code, 1860?

CONTENTIONS

ARGUMENTS BY THE PETITIONERS

The petitioners Tukaram and Ganpat and others argued before the honourable court that there was no commission of rape as codified in section 375 of the Indian Penal Code, 1860. There was no direct evidence of the purported sexual conduct being confessed by the girl. Since a result, it should have been stripped from the status quo, and it would not have been accessible under the conditions in which the girl was put or had fear or compulsion, as it would allow any unrepentant obedience. The opponent said that charges about sex being tranquil, and the problem of hardness were all contrived and incorrect. They even invalidated the screams that has been heard from the police station that night and claimed that those screams were false. They also argued that the Supreme Court’s assumption that a female must have had sexual intercourse because of fear is not the same as confession. Lastly, the petitioners also contended that, as the medical examinations clearly substantiate that no sort of bodily injuries were found on Mathura’s body, hence the act of rape was not being committed and rather it was more of a consensual sexual activity. Also, the absence of semen or pubic hair in Mathura’s vagina further substantiates the argument.

ARGUMENTS BY THE RESPONDENTS

Disputes occurred on behalf of the victim that the girl Mathura was in the police station where she would have felt powerless in the face of the two complainants who controlled the authority, and their progress couldn’t be dismissed on their own and sexual intercourse would be the outcome of that fright. Thus, it was quite absurd to argue that she was not being raped but rather gave her full-fledged consent to the intercourse just because she didn’t have any bodily injuries.  Moreover, the medical examinations do through light upon the fact that even though traces of semen was not being found from her vagina, but the same was extracted from her clothes. As Mathura appeared for the medical examination few days after the commission of rape, hence there is a rightful possibility that because of certain day-day activities like bathing, those semen traces might have been washed away from her private parts. Hence, there was no reason to believe that Mathura had undergone a consensual intercourse with the alleged constables. 

JUDGEMENT

The petition was originally filed in the learned sessions court where it determined that there was insufficient evidence to indicate that Mathura was under the age of 16 on the day of the incident. He went on to call her a “shocking liar” whose evidence was “riddled with lies and improbabilities.” The learned Judge observed that Mathura had most likely had sexual relations with the second appellant, Ganpat. However, he stressed that “sexual intercourse” and “rape” are not the same thing. He said that Mathura had sexual relations with Ganpat of her own volition and this was a case of “passive submission”. The court justified the presence of semen on Ganpat’s clothes by addressing it as “nightly discharges”. The court held that Tukaram too grabbed her because she was “habitual to sexual intercourse”. Sexual intercourse with a woman under the age of 16 is considered rape under Section 375 of the Indian Penal Code, 1860, whether with or without her agreement. Even though Dr. Shastrakar produced proof showing Mathura was between the ages of 14 and 16, the Sessions Judge ruled that the evidence was insufficient to determine Mathura’s age.

The Bombay High Court differentiated correctly between passive acquiescence and consent. It was determined that because the accused were strangers to Mathura and her brother had recently filed a complaint in the same police station, the possibilities of her making advances on them were extremely remote. Furthermore, they were in a position of authority, and any opposition to them may be harmful to her or her brother. This is a clear example of passive acquiescence brought on by the prospect of bodily harm. The fact that the constables confined her to the police station, along with her conduct of immediately telling her family about the occurrence, demonstrates a clear lack of consent. The Court correctly determined that the “lack of semen on vaginal smears and pubic hair” was due to the fact that she was checked 20 hours after the occurrence and had probably had a shower in the interim. Although the High Court correctly convicted the defendants, several aspects of the verdict were contradictory. While overturning the accused’s acquittal, the High Court observed that these two “gentlemen” were complete strangers to Mathura, and it is highly unlikely that she would seek them to meet her sexual demands.

The Supreme Court overruled the high court’s decision, calling it consenting intercourse. First and foremost, no traces of violence were found on her. She may have felt powerless in the presence of two police officers, but if she had struggled, some marks of injury would have been created. Second, she didn’t cry for aid and there was no indication that she was tied; even though her companions collected people and shouted for help, she didn’t show up. The Supreme Court also agreed with the Sessions Judge that Mathura was “habitual to sex” and that the entire scenario was made up to make her appear “virtuous in front of Ashok.” In this context, two frequent English language fallacies, ‘Argumentum ad Hominem’ and ‘Hasty Generalization,’ have been committed. This simply implies that, rather than considering the case on its merits, the Court repeatedly attacked the victim’s character and reached conclusions that had no connection to the premise. Mathura was said to be so promiscuous that she couldn’t pass up any opportunity for sexual encounters, even though her sister Gama, employer Nushi, and beloved Ashok were waiting for her outside the police station. No consideration was given to the fact that Ganpat and Tukaram were strangers to her, and she had never seen them before this episode, or that the lights had been turned out, making it impossible for her to see their features properly. The fact that Tukaram stood by and watched Ganpat rape her as if it were a pornographic film, or that he was intoxicated on duty, was likewise judged irrelevant in assessing the destiny of this young lady. The Supreme Court thus acquitted both the accused and quoted that the alleged intercourse was a ‘peaceful affair’. 

DEFFECTS OF LAW

The Mathura rape case is one of the most controversial judgements in the history of Indian Judiciary. This case is a perfect example depicting the scenario that how women have been subjugated in every phase of life even after they are innocent. This case sparked strong emotions and animosity among members of society. A legislation that was more sensitive to the victims’ sentiments and safeguarded their human rights and dignity had to be written. Providently, the Supreme Court had underwent negligence regarding assessing the facts of the alleged case. Evidently, there were no bodily injuries on Mathura, but we cannot overlook the fact that traces of semen was extracted from her clothing. Also, defaming Mathura’s character by quoting “habituated to intercourse” gained a lot of protects and controversies and above all acquitting the accused just on the basis that no bodily injuries were present and thus terming it as a consensual intercourse was also debatable. Also, the Supreme Court’s stance on the statement that Mathura’s not screaming for help further substantiates that the intercourse was consensual, but it didn’t throw light upon the fact that the doors and windows of the police station was completely closed and even if she screamed, then also it wouldn’t have been heard from outside. All these loopholes and questions were being debated after the verdict was passe which further makes it case more disputed and erroneous.

AFTERMATH

The aftermath of the case has really been massive as it has brought several amendments in the criminal law. The Criminal Law Amendment Bill was thus passed in the year 1983. First and foremost, it amended section 114 of the Indian Evidence Act, 1872 stating that if the victim doesn’t give consent on the sexual intercourse, then the court would presume that it was not a consensual intercourse. Not only this, Section 376 of Indian Penal Code, 1860 was also amended which incorporated sub-section 376C by the Act 43 of 1983 which recognised custodial rape and made it a punishable offense with not less than 7 years of imprisonment. Once sexual intercourse is proved, the burden of proof shifts from the victim to the perpetrator. The amendment also prohibited the publishing of victims’ identities and mandated that rape trials be place behind closed doors. Despite the fact that Parliament altered rape legislation to promote justice, judicial interpretation of these provisions has done the reverse. While numerous decisions issued after the 1983 Amendment Act have been effective in providing justice to victims, an equal number have been framed incorrectly, such as the Mathura Rape Case.

CONCLUSION

Despite of frequent amendments to the criminal law, especially rape and other offences related to women, the numbers are still augmenting. The society needs to understand that making stringent laws isn’t enough to decrease the crime rates in the country; for that along with strict, fair and proper implementation, vigilance among the masses is also a need of the hour. The general masses should be well educated and well versed with the law which is prevailing in the society. Until and unless, the mindset and conservative notion of the society changes, no statue or no strict implementation can curb out the crimes prevailing in the society. Or else, India might achieve great excellence in the field of development, but the inherent social structure will still be feeble which will in turn make the backbone of the nation even more weak and delicate and prone to devastation. 

REFERENCE

• https://blog.ipleaders.in/case-analysis-tukaram-and-another-v-state-of-maharashtra-mathura-rape-case
• https://www.thelegalvidya.in/tukaram-anr-vs-state-of-maharashtra
• https://indiankanoon.org/doc/114584494/
• https://lexcliq.com/mathura-rape-case/
• https://feminisminindia.com/2021/09/02/mathura-rape-case-1972-watershed-moment-india-rape-laws/?amp
• MANU/SC/0190/1978
• Dube, D. (2008), Rape laws in India, LexisNexis Butterworths India
• The Indian Penal Code, by Ratanlal Dhirajlal, 35th Edition 2023, Lexis Nexis