Case – Tukaram v. State of Maharashtra, 1979
Fact
Mathura’s parents died when she was a child and she was living with her brother, Gama. Both worked as laborers to earn a living. Mathura used to go to the house of Nunshi for work and during her visits to that house she met Ashok who was the sister’s son of Nunshi. The contact developed into an intimacy between Ashok and Mathura. Both 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 as well as Mathura was 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, all are started to leave the police station. Tuka Ram & Ganpat (constable), however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat took Mathura into a latrine room and intercourse with her and thereafter dragged her to a Chapri on the back side and did again.
Thereafter, Tukaram fondled with her private parts but could not intercourse with her because he was in a highly intoxicated condition.
Issue
Whether sexual intercourse by Ganpat was without consent? Whether Tuka Ram had committed offence of molestation?
Contentions & Judgement:
- There could be no fear because the girl was taken away by Ganpat from amongst her near and dear ones. Even mere fear is not sufficient. Fear must be for death or hurt. In this case she had fear that her boyfriend and his relative would not accept her.
- High Court concluded that there was fear. But High Court did not say that fear was for death or hurt. So merely such fear did not vitiate consent.
- On the point of consent of the victim Supreme Court said that 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. So, it was matter of “passive submission”.
- Burden of proof lies over prosecution to prove that sexual intercourse was without consent or consent was given under fear.
- There was no direct evidence. Case was decided by High Court on the basis of circumstantial evidence. There were more conclusion than one.
- In this case appellants were acquitted.
