Tuka Ram & ANR Vs. State of
Maharashtra  INSC 176 (15 September 1978)
SINGH, JASWANT KAILASAM, P.S.
CITATION: 1979 AIR 185 1979 SCR (1) 810 1979
SCC (2) 143
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
The prosecution alleged that appellant No. 1,
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. 1, 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 811 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.
6. 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.
7. In an appeal by special leave, the
appellant contended that :- (1) 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 stiff 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.
Allowing the appeal, the Court ^
HELD : 1. 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
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. [817G-H, 818A, G-H,819A] Secondly, the intercourse in question is
not proved to amount rape and that no offence is brought home to appellant
Ganpat. As far as Tuka Ram is concerned, the girl has made serious allegations
against Tuka Ram in the First 812 Information Report. She went back on these allegations
at the Trial. The presence of Tuka Ram at the police station is not inculpatory
and is capable of more explanations than one. The appellants were acquitted.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 64 of 1977.
Appeal by Special Leave from the Judgment and
Order dated 12th/13th December, 1978 of the Bombay High Court (Nagpur Bench) in
Criminal Appeal No. 193/74.
M. N. Phadke, S. V. Deshpande, V. M. Phadke
and N. M. Ghatate for the Appellants.
H. R. Khanna and M. N. Shroff for the
The Judgment of the Court was delivered by
KOSHAL, J.-This appeal by special leave is directed against the judgment dated
the 12th October 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 the 1st of June 1974, and convicting Tukaram,
appellant No. 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.
2. Briefly stated, the prosecution case is
Appellant No. 1, who is a Head Constable of
police, was attached to the Desai Gunj police station in March, 1972 and so was
appellant No. 2 who is a police constable.
Mathura (P.W. 1) is the girl who is said to
have been raped. Her parents died when she was a child and she is living with
her brother, Gama (P.W. 3). Both of them worked as labourers to earn a living.
Mathura (P. W. 1) used to go to the house of Nunshi (P.W. 2) for work and
during the course of her visits to that house, came into contact with Ashok, who
was the sister's son of Nunshi (P.W. 2) and was residing with the latter. The
contact developed into an intimacy so that Ashok and Mathura (P.W. 1) decided
to become husband and wife.
On the 26th of March, 1972, Gama (P.W. 3)
lodged report Ex-P8 at police station Desai Gunj alleging that Mathura (P.W. 1)
had been kidnapped by Nunshi (P.W. 2), her husband Laxman and the said Ashok.
The report was recorded by Head Constable Baburao (P.W. 8) at whose instance
all the three persons complained against as well as Mathura (P.W. 1) were
brought to the police station at 813 about 9 p.m. and who recorded the
statements of the two lovers. By then it was about 10-30 p.m. and Baburao (P.W.
8) told them to go after giving them a direction that Gama (P.W. 3) shall bring
a copy of the entry regarding the birth of Mathura (P.W.1) recorded in the
relevant register and himself left for his house as he had yet to take his
evening meal. At that time the two appellants were present at the police
After Baburao (P.W. 8) had gone away, Mathura
(P.W. 1), Nunshi (P.W. 2), Gama (P.W. 3) and Ashok started leaving the police
station. The appellants, however, asked Mathura (P.W. 1) to wait at the police
station and told her companions to move out. The direction was complied with.
Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a latrine
situated at the rear of the main building, loosened her under-wear, lit a torch
and stared at her private parts.
He then dragged her to a chhapri which serves
the main building as its back verandah. In the chhapri he felled her on the
ground and raped her in spite of protests and stiff resistance on her part. He
departed after satisfying his lust and then Tukaram appellant, who was seated
on a cot nearby, came to the place where Mathura (P.W. 1) was and fondled her
private parts. He also wanted to rape her but was unable to do so for the
reason that he was in a highly intoxicated condition.
Nunshi (P.W.2), Gama (P.W. 3) and Ashok, who
had been waiting outside the police station for Mathura (P.W.1) grew suspicious
when they found the lights of the police station being turned off and its
entrance door being closed from within. They went to the rear of the police
station in order to find out what the matter was. No light was visible inside
and when Nunshi (P.W. 2) shouted for Mathura (P.W. 1) there was no response.
The noise attracted a crowd and sometime later Tukaram appellant emerged from
the rear of the police station and on an enquiry from Nunshi (P.W. 2) stated
that the girl had already left. He himself went out and shortly afterwards
Mathura (P.W. 1) also emerged from the rear of the police station and informed
Nunshi (P.W. 2) and Gama (P.W. 3) that Ganpat had compelled her to undress
herself and had raped her.
Nunshi (P.W. 2) took Mathura (P.W. 1) to Dr.
Khume (P.W. 9) and the former told him that the girl was subjected to rape by a
police constable and a Head Constable in police station Desai Gunj. The doctor
told them to go to the police station and lodge a report there.
814 A few persons brought Head Constable
Baburao (P.W. 8) from his house. He found that the crowd had grown restive and
was threatening to beat Ganpat appellant and also to burn down the police
station. Baburao (P.W. 8), however, was successful in persuading the crowd to
disperse and thereafter took down the statement (Ex. 5) of Mathura (P.W. 1)
which was registered as the first information report.
Mathura (P.W. 1) was examined by Dr. Kamal
Shastrakar at 8 p.m. on the 27th of March 1972. 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. A sample of the public
hair and two vaginal-smear slides were sent by the doctor in a sealed packet to
the Chemical Examiner who found no traces of semen therein. Presence of semen
was however detected on the girl's clothes and the pyjama which was taken off
the person of Ganpat appellant.
3. 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 circumstances, would be the conclusion that
while at the Police Station she had sexual intercourse and that, in all
probability, this was with accused No. 2." 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 some thing 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. 2................................... Mathura is habituated
to sexual intercourse, as is clear from the testimony of Dr. Shastrakar, and
accused No. 2 is no novice. He speaks of nightly discharges. This may be
untrue, but there is no reason to exclude the possibility of his having stained
his Paijamal with semen while having sexual intercourse with persons other than
815 Mathura. The seminal stains on Mathura can be similarly accounted for. She
was after all living with Ashok and very much in love with
him.................. " and then concluded that the prosecution had failed
to prove its case against the appellants.
4. The High Court took note of the various
findings arrived at by the Learned Sessions Judge and then itself proceeded to
sift the evidence bearing in mind the principle that a reversal of the
acquittal would not be justified if the view taken by the trial court was
reasonably possible, even though the High Court was inclined to take a
different view of the facts. It agreed with the learned Sessions Judge in
respect of his finding with regard to the age of Mathura (P.W. 1) but then held
that the deposition of the girl that Ganpat appellant had had sexual
intercourse with her was reliable, supported as it was by circumstantial
evidence, especially that of the presence of stains of semen on the clothes of
the girl and Ganpat appellant. The fact that semen was found neither on the
public 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 remarked:
"Besides the circumstances that emerge
from the oral evidence on the record, we have to see in what situation Mathura
was at the material time. Both the accused were strangers to her. It is not the
case of the defence that Mathura knew both these accused or any of them since
before the time of occurrence. It is, therefore, indeed, highly improbable that
Mathura on her part would make any overtures or invite the accused to satisfy
her sexual desire. Indeed it is also not probable that a girl who was involved
in a complaint filed by her brother would make such overtures or advances. The
initiative must, therefore, have come from the accused and if such an
initiative comes from the accused, indeed 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. If these circumstances are taken into
consideration it would be clear that the initiative for sexual intercourse must
have come from the 816 accused or any of them and she had to submit without any
resistance............... 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 statement
immediately not only to her relatives but also to the members of the crowd
leave no manner of doubt that she was subjected to forcible sexual
intercourse." In relation to Tukaram appellant, the High Court did not
believe that he had 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.
It was in these premises that the High Court
convicted and sentenced the two appellants as aforesaid.
5. The main contention which has been raised
before us on behalf of the appellants is that no direct evidence being
available about the nature of the consent of the girl to the alleged act of
sexual intercourse, the same had to be inferred from the available
circumstances and that from those circumstances it could not be deduced that
the girl had been subjected to or was under any fear or compulsion such as
would justify an inference of any "passive submission", and this
contention appears to us to be well- based. As pointed out earlier, no marks of
injury were found on the person of the girl after the incident and their
absence goes a long way to indicate that the alleged intercourse was a peaceful
affair, and that the story of a stiff resistance having been put up by the girl
is all false. It is further clear that the averments on the part of the girl
that she had been shouting loudly for help are also a tissue of lies. On these
two points the learned Sessions Judge and the High Court also hold the same
view. In coming to the conclusion that the consent of the girl was a case of
"passive submission", the High Court mainly relied on the
circumstance 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 817 act of sexual intercourse must be
regarded as the result of fear and, therefore, as no consent in the eye of law.
This reasoning suffers from two errors. In the first place, it loses sight of
the fact which was admitted by the girl in cross-examination and which has been
thus described in the impugned judgement:
"She asserted that after Baburao had
recorded her statement before the occurrence, she and Gama had started to leave
the police station and were passing through the front door. While she was so
passing, Ganpat caught her. She stated that she knew the name of accused No. 2
as Ganpat from Head Constable Baburao while giving her report Exh. 5.
She stated that immediately after her hand
was caught by Ganpat she cried out. However, she was not allowed to raise the
cry when she was being taken to the latrine but was prevented from doing so.
Even so, she had cried out loudly.
She stated that she had raised alarm even
when the underwear was loosened at the latrine and also when Ganpat was looking
at her private parts with the aid of torch. She stated that the underwear was
not loosened by her." Now the cries and the alarm are, of course, a
concoction on her part but then there is no reason to disbelieve her assertion
that after Baburao (P.W. 8) had recorded her statement, she and Gama had.
started leaving the police station and were passing through the entrance door
when Ganpat appellant caught hold of her and took her away to the latrine. And
if that be so, it would be preposterous to suggest that although she was in the
company of her brother (and also perhaps of Ashok and her aunt Nunshi) and had
practically left the police station, she would be so over-awed by the fact of
the appellants being persons in authority or the circumstance that she was just
emerging from a police station that she would make no attempt at all to resist.
On the other hand, her natural impulse would be to shake of the hand that
caught her and cry out for help even before she noticed who her molester was.
Her failure to appeal to her companions who were no others 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 "passive submission".
Secondly, it has to be borne in mind that the
onus is always on the prosecution to prove affirmatively each ingredient of the
offence it seeks to establish and that such onus never shifts. It was,
therefore, incumbent on it to make out that all the ingredients of section 818
375 of the Indian Penal Code were present in the case of the sexual intercourse
attributed to Ganpat appellant. That section lays down:
375. `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 five
First.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent
has been obtained by putting her 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
Fifthly.-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.
Exception.-Sexual intercourse by a man with
his own wife, the wife not being under fifteen years of age, is not rape.' The
section itself states in clauses Thirdly and Fourthly as to when a consent
would not be a consent within the meaning of clause Secondly. For the
proposition that the requisite consent was lacking in the present case,
reliance on behalf of the State can be placed only on clause Thirdly so that it
would have to be shown that the girl had been put in fear of death or hurt and
that that was the reason for her consent. To this aspect of the matter the High
Court was perhaps alive when it talked of "passive submission" but
then in holding that the circumstances available in the present case make out a
case of fear on the part of the girl, it did not give a finding that such fear
was shown to be that of death or hurt, and in the absence of such a finding,
the alleged fear would not vitiate the consent.
Further, for circumstantial evidence to be
used in order to prove an ingredient of an offence, it has to be such that it
leads to no reasonable inference other than that of guilt, We have already
pointed out that the fear which clause Thirdly of section 375 speaks of is
negatived by the circumstance that the girl is said to have been taken away by
Ganpat right from amongst her near and dear ones at a point of time when they
were, all leaving the police station 819 together and were crossing the
entrance gate to emerge out of it. The circumstantial evidence available,
therefore, 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.
6. In view of what we have said above, we
conclude that the sexual intercourse in question is not proved to amount to
rape and that no offence is brought home to Ganpat appellant.
7. The only allegation found by the High
Court to have been brought home to Tukaram appellant is that he fondled the
private parts of the girl after Ganpat had left her. The High Court itself has
taken note of the fact that in the first information report (Ex. 5) the girl had
made against Tukaram serious allegations on which she had gone back at the
trial and the acts covered by. Which she attributed in her deposition to Ganpat
instead. Those allegations were that Tukaram who had caught hold of her in the
first instance, had taken her to the latrine in the rear of the main building,
had lit a torch and had stared at her private parts in the torch-light. Now if
the girl could alter her position in regard to these serious allegations at
will, where is the assurance that her word is truthful in relation to what she
now says about Tukaram ? The High Court appears to have been influenced by the
fact that Tukaram was present at the police station when the incident took
place and that he left it after the incident. This circumstance, in our
opinion, is not inculpatory and is cable of more explanations than one. 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.
8. In the result, the appeal succeeds and is
The judgment of the High Court is reversed
and the conviction recorded against as well as the sentences imposed upon the
appellants by it are set aside.
P.M.P. Appeal allowed.