# TUKA RAM AND ANR v. STATE OF MAHARASHTRA

- **Citation:** [1979] 1 S.C.R. 810
- **Court:** Supreme Court of India
- **Decided:** 1978-09-15
- **Case number:** Criminal Appeal No. 64 of 1977
- **Bench:** Jaswant Singh, P. s. KAILASAM, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tuka-ram-and-anr-v-state-of-maharashtra-7540
- **Pages:** 10

## Headnote

Indian Penal ·Code Sec. 375-Rape-What is the meaning of without consent
-Obtaining consent by putting fear of death or hurt--Crbninal trial-Onus is 011
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 'vhen she was
a child and she was living with her brother, Gam3:.
Both of them worked as
JOOourers 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
'vith Ashok who was the sister's son of Nunshi. The coniact 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 5tation
alleging that Mathura had been kidnapped by Nunshi, her husbanU Laxman and
Ashok. The report was recorded by Head Constable BabunMJ, at whose instance
all the three persons complained against as well as Mathura \Vere brought to
the police station at about 9 p.m. and the statements of Ashok and Mathura
v.1erc recorded.
By that time, it was 10.30 p.m. and Babur:i.o asked all
tht~
persons to leave with a direction to Gama' to bring a copy of the entry regairding
the birth date of Mathura. After Baburao· left Mathura, Nunshi and Gama
and Ashok started to leave the police station. The a·ppellants, 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 G<.inpat, appellant No. l, took Mathura into a la.trine raped her and thereafter dragged her
to a Chhapri on the back side and raped her again. Thereafter, appe11ant No. 2
fondled with her private parts but could not rape her because he was in .;t
highly intoxicated condition.
Nunshi, Gama a<nd 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 exarnincd by a doctor who
found that she had no injury on her person. Her hymen revealed old ruptures.
The vaigina 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.
Th.e
presence of semen was, however, detected on the girl's clothes.
The Sessions Judge found that there was no saitisfactory 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
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TUKA RAM V. MAHARASHTRA
811
intercourse while at the police station but ra.pe had not been proved and that
she was habituated to sexual inter-course, but finding that Nunshi •nd Ashok
would get angry with her, she had to sound virtuous before them.
Really
speaking, she would have surreudered her body to the Constable.
6. The District Judge, therefore, acquitted the appellauts. The High Court
reversed tho order of acquittal. The High Court found that the sexual interA
course was forcible and amounted to rape.
Since both the
accused
were
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straugers to Mathur•, 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
O\·ertures 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 ns he
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was alleged to have fondled her private parts after the act of sexual intercours

## Text

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810
TUKA RAM AND ANR.
v.
STATE OF MAHARASHTRA
September 15, 1978
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.]
Indian Penal ·Code Sec. 375-Rape-What is the meaning of without consent
-Obtaining consent by putting fear of death or hurt--Crbninal trial-Onus is 011
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 'vhen she was
a child and she was living with her brother, Gam3:.
Both of them worked as
JOOourers 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
'vith Ashok who was the sister's son of Nunshi. The coniact 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 5tation
alleging that Mathura had been kidnapped by Nunshi, her husbanU Laxman and
Ashok. The report was recorded by Head Constable BabunMJ, at whose instance
all the three persons complained against as well as Mathura \Vere brought to
the police station at about 9 p.m. and the statements of Ashok and Mathura
v.1erc recorded.
By that time, it was 10.30 p.m. and Babur:i.o asked all
tht~
persons to leave with a direction to Gama' to bring a copy of the entry regairding
the birth date of Mathura. After Baburao· left Mathura, Nunshi and Gama
and Ashok started to leave the police station. The a·ppellants, 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 G<.inpat, appellant No. l, took Mathura into a la.trine raped her and thereafter dragged her
to a Chhapri on the back side and raped her again. Thereafter, appe11ant No. 2
fondled with her private parts but could not rape her because he was in .;t
highly intoxicated condition.
Nunshi, Gama a<nd 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 exarnincd by a doctor who
found that she had no injury on her person. Her hymen revealed old ruptures.
The vaigina 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.
Th.e
presence of semen was, however, detected on the girl's clothes.
The Sessions Judge found that there was no saitisfactory 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
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TUKA RAM V. MAHARASHTRA
811
intercourse while at the police station but ra.pe had not been proved and that
she was habituated to sexual inter-course, but finding that Nunshi •nd Ashok
would get angry with her, she had to sound virtuous before them.
Really
speaking, she would have surreudered her body to the Constable.
6. The District Judge, therefore, acquitted the appellauts. The High Court
reversed tho order of acquittal. The High Court found that the sexual interA
course was forcible and amounted to rape.
Since both the
accused
were
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straugers to Mathur•, 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
O\·ertures 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 ns he
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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:-
(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 circuimtances 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 peaceflll 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
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had started to leave the police station and the case is that at that time Ganpat
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caught her.
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Allowing the appeal, the Court
HELD : 1. The onus is always on the prosecution to pro?e 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 bas not given a finding that the consent of the girl was obtairlcil
by putting her in a state of fear of death or of hurt. Therefore, the third
clanse of section 375 will not apply. There could be no fear because the girl
was taken away by Ganpat right from amongst her near arid dear ones.
Tlie
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 [8170-H, 818A, G-H, 819A]
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Secondly, the intercourse in question is not proved to amount rape aud that
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no offence is brought home to appellant Goopat. As far ns Tuka Ram is concerned, the girl has made serious allegations against Tu"ka Ram in the First
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SUPREME COURT REPORTS
[J 979] J S.C.R
Information Report.
She went back on these allegations at the Trial.
Th~
presence of Tuka Ram at the police station is not inculpatory and is capable
of more exp1anations than one.
The appellants were a..:quitted.
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 64
of 1977.
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Appeal by Special Leave from the Judgment and Order dated
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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 Respondent.
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 this.
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.
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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
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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 repnrt ExP8 at police station Desai Gunj alleging that Mathura (P.W. 1) had
been kidnapped by Nunshi (P.W. 2), her husband Laxman and the
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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 statipu at
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TUKA RAM l'. MAHARASHTRA (Koshal, J.)
813
about 9 p.m. and who recorded the statements of the two lovers. By
then it was abont 10-30 p.m. and Baburao (P.W. 8) told them to
go after giving them a direction that Gama (P.W. 3) ~hall bring a
copy of the entry regarding the birth of Mathur a (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 station.
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
polioe station.
The appellants, however, asked Mathura (P.W. 1)
to wait at the police station and tole! her companions to move out.
The direction was complied ~. Immediately thereafter Ganpat
appellant took Mathura (P .W. 1) int.o 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
Tukarain appellant, who was seated on a cot nearby, came to the
place where Matbura (P.W. I) 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 some time 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
volice 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 fonner 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.
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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
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Mathura (P .W. 1) was examined by Dr. Kamal Shastraka,r 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
ago 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
slide~
were sent by the doctor in a sealed p11cket 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 shock-
. ing liar" whose testimony "is riddled with falsehood !!nd 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
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"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 something fishy, she (Mathura) could not have very well admitted that
of her own free will, she had surrendered her body to a Police ConsG
mble.
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.
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Mathura is habituated to sexual intercourse, as is clear from
the
testimony of Dr. Shastrakar, and accused No. 2 is no novice.
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speaks of nightly discharges.
This may be untrue, but there is no
reason to exclude the possibility of his having stained his Paija~
with semen while having sexual intercourse with persons other than
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TUKA RAM v. MAHARASHTRA (Koshal, /.)
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 pro~ecution had failed to prove its case against the appellants.
4. The High Court took note of the various findings arrived at
hy 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 l
but then helc' that the deposition of the girl that Gaupat 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 thy learned Sessions Judge was right in saying
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that there was a world of difference between sexual intercourse and
rape, he erred in appreciating the difference between consent and
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"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 Matlmra 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 roust, therefore, have come from the accused and if such
an inieative cqme!) 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
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SUPREME COURT REPORTS
[1979] 1 s.c.R.
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 acti 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 intercour~e 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
a.s 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 Imig 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 averrnents 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
gir\ 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 subms.sion to the
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TUKA RAM v.'MAHARASHTRA (Koshal, J.)
817
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~ct. of sexu"al intercourse must lie 'regarded as the resul_t of fear and,
tlie'rdore, 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
w.i,s admitted by the-girl in cross-examination and which h~s been thl;IS
desfdbed hl _the impugned judgm~t : _
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"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 renort Exh. 5.
She stated that immediately after her hand was
cauglii ~y Ganpat she -cried out _ However, she was not allow~d to
raise· the cry when she was b_eing 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 i~ 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 en- -
tranc;_e door when Ganpat appellant caught hold of her and took her
away to t_he latrine.
And if tha\ be so, it would be preposterolls
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 impul~e would be
to shake off the hand that caught her and cry out for help even be"
fore she noticed who her molester was.
Her failure to appeal to her
COl\lpanions 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
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the "prosecution to prove affirmatively each ingredient of the offence
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it seeks to establish and that such onus never shifts.
rt was, therefore, incumbent on it to make out that all the ingredients of section
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375 of the Indian Penal Code were .present in the case of the seitaal
intercourse attributed to Ganpat appellant. That section lays doWI!. :
375. 'A man is said to commit "rape" who except in the case
hereinafter excepted, has sexual intercourse with a womu Wider
circumstances falling under any of the five following descriptiolll :
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 corisent, when the man knows that he
is not her husband, and that he.r con.§ent is given because
sne believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.-With or without her consent, when she is under
sixteen: yt'Clrs 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 owa
wife, the wife not being under fifteen years of age, is not
rape.'
The section itself states in dames Thirdly and .Fourthly Bil to
whtr! 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 Ile
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 par( 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 ~~idence 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 Thirdl_y of section 375 speaks
of is negatived by the circumstance that the girl is said to have i>een
taken away by Ganpat right from amongsj; her near and dear ones
at a point of time when they were, all leaving the police station
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TUKA RAM~- MAI;ARASHTM -(Kos/za/;J;)- -----&19
1cgcthcr and were crossing th~ entrance ga~ to emerge out of it. The
circumstantial evidence available, therefore, is not only capable _of
. '!Jciilg construed in a way different from that adopted by the High
. Court but actually derogates in 110 uncertain ~easure from the infer-
<nco drawn by it.
A
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6. In view of what we fuive said abQve, we _conclude that the
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· -sexual intercourse in question is not proved to amount to rape and
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tllat no offence is brought home to Ganpat appellant..
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7. The- only allegation found. by the High Court to have been
llrC\llht home to Tukaram appellant is that he fondled the private
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of the girl after Ganpat had left her. The High Court itseU ·
bas taken note of the fact that in the first information report (Ex. 5)
the girl had made againSt Tukaram serious allegations on which she
b:id gone back at the trial and the aEts covered by which she attributed·
ill her deposition to Ganpat instead. Those allegations y;:ere that
7ukaram w~o had caught hoJd 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
-ccuid alter her position in regard to these -seriOJlS allegations at will,
'where is the assurance that her word is truthful in relation to what
!he now says about Tukaram 1 Tb~ High Court appears to have been
influenced by the fact that Tukaram w;!S present at the police station
when the incident took place and that he left it after the incident.
This circumstance, in our opiniop, is not inculpatory and is capable
-cf more explanations than one. We do not, therefore, propoi~ · to
take the girl at her word in relatioll to Tukaram appellant and bold
that the charge remains wholly unproved against him.
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8. Iri the result, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the qinviction r~orded ag;tlnst
· as well as the s:entences imposed upon the apgellanls by it are set
caside.
P.H.P. -·
Appeal allowed .
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