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Tuka Ram and Anr. v. State of Maharashtra

Hritika Jannawar & Nandini Gadgil, Students, D.E.S. Shri Navalmal Firodia Law College, Pune

Introduction

The said case is considered a landmark case in the area of criminal law under the offence of rape. Infamously known as the ‘Mathura rape case’, this was an incident of ‘custodial rape’.


The facts are as follows:

Mathura was a poor, young orphan who lived with her brother Gama. She was employed at the house of Nunshi, where she developed sexual relations with Ashok, who was Nushi’s sister’s orphan son. Gama, not approving of this, lodged a complaint in the Desaiganj police station of kidnapping against Nunshi, her husband Laxman, and Ashok. While Gama, Mathura, Ashok and Nunshi, having been in the police station, started to leave, Mathura was asked to stay back. Purportedly, Ganpat appellant then raped her, and Tukaram appellant, highly intoxicated, fondled her private parts.


Background

There were various aspects considered by the court. For instance, the Sessions court at Chandrapur said that the ruptures on Mathura’s hymen indicate she was habituated to intercourse. Therefore, she voluntarily approached the accused. To act virtuously in front of Ashok, she put frivolous allegations on the appellants. Further, the semen found on Mathura’s clothes was of someone other than Ganpat appellant and that on Ganpat’s pant was due to nightly discharge; due to which the accused were acquitted.


The Bombay High Court in contrast to this said that there was a passive submission to the rape by Mathura, considering the authority of the accused. The possibility of herself approaching the accused was less, given that there was probably no acquaintance between them. The accused were therefore convicted though both the Courts refuted the medical reports of her age claiming to be between 14 to 16.


The Supreme Court in its judgment observed that there were no injuries on Mathura’s body to prove there was any resistance by her against the rape. Most importantly, the question was raised as to why she didn’t oppose Ganpat appellant when he took her away “right from amongst her near and dear ones”. As of Tukaram, the Court said that Mathura had wrongly identified Tukaram as the one who raped her and later altered this testimony. So she may as well have faltered other statements in this regard. Thus, it was regarded as an act of consensual sex by the Court, and the accused were consequently acquitted.


Analysis

A) PREVIOUS REASONINGS IN CASES SIMILAR TO MATHURA RAPE CASE:

The period before Mathura i.e. between 1950 and 1979 has received restrictive interpretation in rape cases where the conviction was granted only in case of minor girls largely, while the major girls themselves were subject to suspicion rather than the accused. The Courts presumed there is a consent when no injury marks are present on the person of the victim. Again, she not being a virgin till the time of the said act also led them to the presumption of her habitually to intercourse, and thus the consent. Also, slight irregularity in her testimony would render it wholly to be untrustworthy. The trend can be seen from the cases below:


In Siddheswar Ganguly v. State of West Bengal[1]the accused was charged with the rape of two girls. One was minor and the other, a major. He was convicted for raping the minor girl but not for the latter as she was a major. In spite of corroborative evidence in prosecutrix’s favour, the Court didn’t pay heed to it. The reasoning, “she was major and would not be raped, so it means she consented” is very irregular.


In Gopi Shankar v. State of Rajasthan [2], the Court said that the intercourse seemed to be pre-arranged because the prosecutrix left her two-month-old baby at home and came out, also there didn’t appear active resistance offered by her. The Court expected the victim to sit at home and her venturing out was the analogy they provided for this act to be prearranged. The Court erred to recognise here that the victim was thrown naked in the common hall, her screams were heard by a person in the next building, that she was 17 years old and had just delivered a baby, being too weak to resist.


In Pratap Mishra vs. State of Orissa[3] the 5-month-old pregnant women was raped by 3 sturdy NCC cadets one after another. Here the Apex Court stated the woman was a mature, midwife, habitual of sexual intercourse. In the said case, there were no marks of injury, thus the woman did consent. Here again the court ignored the fact she might have not violently resisted in order to protect her baby. In case of injuries considered, the fact she miscarried the baby after 4-5 days was also side-lined. The fact she couldn’t remember who was wearing what rendered her testimony untrustworthy side-tracking the trauma she underwent to remember this.


B) FALLACY BY THE COURTS IN MATHURA RAPE CASE ASSESSMENT:

The Sessions Court took a Victorian, rather a misogynistic view and concocted the case demeaning Mathura’s character. The Court’s contention was that she was habitual to sexual intercourse and that’s the reason she approached the accused to fulfil her lust. This can be refuted on the grounds that:


1) The accused were totally strangers to her, as later rightly pointed out by the High court.

There were no firm grounds on which the Court based the argument given that there was a probability that Ashok and others were standing outside. So, Mathura indulging in this act would be unusual. Conversely, seeing the probability of Mathura’s consideration that Ashok and others were not waiting for her right outside the police station, there was no need for the police station to be blacked out and locked, as the act is consensual, could have been performed discreetly. The actions of the accused here creates doubts.


· Past sexual history of Mathura cannot indicate that she was lustful and desperate women.

Court further went on with an absurd presumption that the semen on Mathura’s lehenga would belong to Ashok given that she lived with him. And, the semen found on the pants of the accused was because he may have had intercourse with some other women.


· The view taken by the Court was quite inconsistent due to the fact that they considered the presence of semen on the clothes of the prosecutrix as well as the accused, but that the semen belonged to different persons. Such coincidence is difficult to accept for a general mind let alone the judicial one. The High Court was consistent on considering all the aspects of the fact, thus convicting the accused.


· The Supreme Court brushed aside the High Court’s reasoning of ‘passive submission’ by Mathura on the basis that she didn’t cry out for help when the Accused no 2 caught her hand and she didn’t shake it off. It seems illogical on the ground that:


· The Court didn’t consider Ashok, Gama and Nunshi as witnesses though they did accept that all of these along with Mathura had started to leave together. Had the Court considered rightly so, there would have been strong evidence with respect to Mathura’s crying out as Ganpat appellant held her, as she herself initially had testified.


· On the other hand, if the witnesses would have not have testified her crying out, the Court itself would have had a clear, strong point to state initiation of Mathura’s consent.


2) Further, it may be seen that the Supreme Court has termed Mathura’s testimony regarding her raising of alarm as a concoction without citing any clarification, whereas they accepted the further part of this testimony itself, simply because it was not averse to the reasoning of the judgment they were to establish.


3) The SC’s consideration regarding no injury marks on the body of Mathura, and thus no stiff resistance by her can be argued on the ground that though she did resist it was overpowered by the much stronger physique of Ganpat Appellant. The absence of injury marks cannot discredit the testimony of the prosecutrix, and merely because she was a helpless victim who was by force prevented from offering serious physical resistance, she cannot be disbelieved. Her resistance has been evident from the moment Ganpat caught her hand. But time and again her testimony has been discredited without giving any proper reasoning or for that matter evidence in form of the testimony of witnesses’ present.


4) Regarding the issue of the ‘consent’ the SC only focused on the third component of the offence of rape under section 375, establishing that there was no threat of hurt or death and hence her consent was present. But what the SC erred is, not considering the second component of the same sec where “it was without consent”. The circumstances projected in the given case that the Mathura is poor, an orphan, tribal girl who was held up at the late hour of the night at the police station and also had shown her resistance when they were taking her, was blatantly ignored by the court. From the facts, it can only be derived that it was her submission. There is a vast difference between submission and consent. As consent may have submission but not vice versa.


This may further be supported on the grounds of certain grave omissions done by the lower court and in turn the SC which have been noted further.


C) OMISSIONS OF ISSUES BY THE COURT:

1. The character assessment of Mathura seemed to be a major part of the case, but the same was omitted by the court with respect to the accused (the fact that they were drunk on duty).


2. While it may be considered that corroboration regarding expert opinion is needed, in this case, the expert opinion itself was refuted without any grounds being provided.


3. The statements of witnesses to establish that Mathura resisted or not were noted.


D) LEGAL REFORMS – The Criminal law (2ndAmmendment Act, 1983)

This amendment Act made a statutory provision in the face of Section 114 (A) of the Evidence Act made 25 December 1983, which states that if the victim says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent (as a rebuttable presumption of law ).


1. Section 376 ( Punishment of Rape under Indian Penal Code ) underwent a change with the enactment and addition of Section 376(A), Section 376(B), Section 376(C), Section 376(D) IPC, which made custodial rape punishable (which were further amended in 2013 after Nirbhaya Rape Case).


2. Besides defining custodial rape, the amendment shifted the burden of proof from the accuser to the accused once intercourse was established; it also added provisions for in-camera trials, the prohibition on the victim identity disclosure and tougher sentences.


E) COMPARATIVE ANALYSIS:

The subject matter of Mathura case was:

a. Mathura was considered to be a promiscuous woman, who would consent to or approach any person for sexual satisfaction.

b. Her testimony was not taken to be credible in the said case due to the absence of marks on her person.

c. The Supreme Court, owing to the definition of Rape under SEC 375 clause (d) thirdly, did not recognize that there was stiff resistance by Mathura and thus the consent was not by virtue of threat or hurt or death.


With reference to the subject matter of this case, a comparative analysis of certain cases under the jurisdiction of Pennsylvania State of the U.S has been noted further.


In the 1982 case of Pennsylvania v. Williams[4], Pennsylvania expanded its definition of forcible compulsion. The victim was raped under the belief that she would be murdered if not complied with. The Pennsylvania Superior Court stated: It is not necessary that the victim is beaten, that the victim cry, that the victim becomes hysterical, or that she be threatened by a weapon for the crime of rape to occur. The degree of force required to constitute rape is relative and depends on the facts and particular circumstances of each case.


The said clause under the definition of rape that was taken into account in Mathura’s case recognises that consent may be given due to threat of hurt or death only at the side of the victim, whereas the Pennsylvanian Jurisdiction makes a note of the possible force that can be applied by the accused, under various circumstances. This may further be elaborated in case of Pennsylvania vs. Rhodes[5] in 1986, the Pennsylvania Supreme Court expanded the definition of forcible compulsion to include non-physical coercion. It criticized the Superior Court for limiting forcible compulsion to "sheer physical force or physical violence."' The Supreme Court held that forcible compulsion connotes more than physical force and includes moral, intellectual and psychological coercion.'


The Rhodes court noted that Pennsylvania has long evaluated force in terms of the effect it produces on the victim's will. The factfinder should measure the reasonableness of the victim's abandonment of her will by the totality of the circumstances. Relevant factors include, but are not limited to, the following:

a. age of the victim;

b. mental and physical condition of the victim and the defendant;

c. atmosphere and physical setting wherein the alleged rape occurred;

d. defendant's authoritative position over the victim, if any; and

e. victim's duress.


In the case of Mathura, apart from other factors, the mental and physical capacity of the victim and the defendant was not taken into consideration. The circumstances were that she was leaving the police station after just giving her statement against the complaint of abduction filed by her brother against Ashok, her would-be husband. Why would Mathura want to have sex in such situations? The reasoning provided for the presumption that she was a liar and lustful was only because she had had premarital sex which is a baseless ground in itself. There was no evidence in place to prove her promiscuity as she had the only partner. Also, the accused was at the position authority in the case. Attempts to introduce evidence of unchastity into rape trials should be rejected altogether. The relationship between women chastity and whether or not she has been raped is simply too attenuated to warrant consideration as relevant evidence.


Progressive thought in the given case of a foreign jurisdiction is that lot of weightage has been given to circumstantial evidence. Also, the mindset has been taken into thought as well as the place of occurring which have been side-lined a bit in the cases of rape dealt in India. The totality of circumstances is what has been emphasised in the above case. And in this light, the mere absence of marks on the person of the victim should not have ruled out the sexual intercourse as rape.

Conclusion

The analysis has thrown light on how the Indian judiciary had a Victorian and misogynistic approach in the 70s and 80s. Given the mindset of the society then, even actual rape victims were not sympathized with but instead looked down upon. In spite of this, the Court’s trend of questioning the victim’s character and ignoring that of the accused seems unacceptable. The Court in this case put great emphasis on corroborative evidence and all the other cases before this. The course of action was corrected by Justice Krishna Iyer, in Rafiq vs state of UP[6]- “Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a matter of law, but the guidance of under given circumstances.”


In the 1990s more sensitivity has been displayed by the Supreme Court, for instance, in the Bodhisattwa Gautam case[7]. It held here that rape is not only a crime against the person of a woman (victim) but that it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into a deep emotional crisis. It is only by her sheer will power she rehabilitates herself in the society which on coming to know the rape, looks down upon in derision and contempt. Rape is, therefore, a most hated crime against basic human rights and is also violative of victims most cherished of fundamental rights, namely the right of life contained in Article 21.


Though the past sexual history of the victim was a major point in Mathura’s case in 1972, international jurisprudence has positively developed on this matter. Even in India, among other changes, the rape shield law was a part of the amendments that came post Nirbhaya case under sec 53A of the Indian Evidence Act. Today there have been scientific developments to test the psychology of victims. While the human brain deals with fight or flight situations rape victims show a third kind of behaviour- freeze. India is a country that may be observed to be lost in taboos which may have been the underlined reason for the later development of laws regarding rape in the country as apposed those of countries with similar footing as of India. Thus, India needs to take into consideration recent scientific developments while dealing with rape cases.

[1]Siddheshwar Ganguly v. The State of West Bengal AIR 1958 SC 143. [2]Gopi Shankar & Ors. Vs. State of Rajasthan AIR 1967 Raj 159. [3]Pratap Misra & Ors. vs. State of Orissa AIR 1977 SC 1307. [4]Pennsylvania vs. Williams, 439 A.2d 765 (1982, Supreme Court of Pennsylvania). [5] Pennsylvania v. Rhodes, 510 A.2d at 1225 (1986, Supreme Court of Pennsylvania). [6]Rafiq vs. State of U.P. [1981] 1 SCR 402. [7]Bodhisatva Gautam vs. Subrha Chakraborty (1996) 1 SCC 490.

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