Tukaram and Ors v. State of Maharashtra (Mathura Rape Case)


Citation: Criminal Appeal No. 64 of 1977
Court: Supreme Court of India
Parties Involved: Mathura, Ganpat, Tukaram
Appellant:  M.N. Phadke, S.V. Deshpande, V.M. Phadke and N.M. Ghatate, Advs
Respondent: H.R. Khanna and M.N. Shroff, Advs.
Bench: Justice Jaswant Singh, Kailasam and Koshal

Brief facts:
Mathura, a young orphan, lived with her brother Gama. She worked as a laborer at the house of Nushi.
During the course of employment, she developed sexual relations with Ashok, the son of Nushi’s sister.
Thereafter, they decided to get married. On the basis of a report filed by Gama on March 26, 1972,
stating that Mathura had been kidnapped, all the concerned parties including Ashok, Nushi and other
relatives were brought before the police station.
After their statements were recorded, everyone began walking out at about 10:30 pm. The first
appellant Ganpat asked Mathura to wait inside the police station. After closing the doors and turning off
the lights inside, he took her up to the washroom and raped her in spite of her resisting.
After he was done, the second appellant Tukaram came and fondled with her private parts. He tried to
rape her too but failed, as he was heavily intoxicated.
After being reunited with her family and friends, Mathura narrated this incident to them. On being
medically examined it was asserted that Mathura was between the age of 14-16 years and her hymen
revealed old ruptures but there was no injury on her body.
She was examined by Dr. Shastrakar on March 27, on whose advice an FIR for the same was filed. After a
long battle, The Supreme Court acquitted the appellants in 1979.

Issues:
The Sessions Judge acquitted the accused, as he believed that this was not a case of rape but
one of “consensual sexual intercourse”. The perversity of his logic is evident when he implies
that Mathura being “habitual to sex” might have invited Ganpat to satisfy her sexual needs and
thus her consent was voluntary.
He further used this line of argument to justify the presence of semen on her clothes to have
come from her act of having sexual intercourse with some person other than Ganpat.
By this statement, the Judge is implying that Mathura was so eager that she had sexual
intercourse with ‘someone’ between the hours of this incident and her medical examination.
However, in justifying the semen on Ganpat’s clothes he said it was due to “nightly discharges”.
It is enigmatic as to why the Court had such double standards based on gender roles.

As per Section 375(6) of the Indian Penal Code, sexual intercourse with a woman below the age
of 16 whether with or without her consent qualifies as rape.
Even after Dr. Shastrakar presented evidence that Mathura was between the ages of 14-16, the
Sessions Judge held that the evidence determining Mathura’s age was inadequate.
He further held that in order to sound “virtuous before Ashok” Mathura fabricated a story of
being raped. The sexist tone in this judgment is startling as the Judge assigns a specific role to
Mathura by implying that she needs to concoct a story in order to prove her chastity to her lover.
In his words Mathura was “a shocking liar whose testimony was riddled with falsehood and
improbabilities.”

Judgement:
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.
The Supreme Court overturned the conviction of the High Court and acquitted the accused. The
Supreme Court agreed with the Sessions Judge that this was a case of consensual sexual
intercourse. On this point the Supreme Court further added that since “no marks of injury” were
found on Mathura’s body there was “no resistance” on her part and since she did not “raise an
alarm” for help she “consented to sex.”
Firstly, it is astonishing that this Court has equated the lack of resistance to consent.
Even if Mathura tried to resist she would be powerless in front of two well-built, strong
constables and thus impossible for “marks of injury” to be carved onto her body.
While the Court read into Section 375(3) of the IPC to hold that her consent was not obtained by
putting her in fear as she didn’t object when she was taken away from her family, it excluded
Section 375(2), which states that rape is sexual intercourse with a woman without her
consent.[3]
Secondly, it is questionable as to how the Courts are certain that Mathura did not shout for help.
The doors were locked all throughout when Ganpat took Mathura up to the washroom to rape
her.
Even if she did cry out for help, it’s very likely that she might not have been heard. At this stage,
it is pertinent to question this Court as to what their judgment would be if the victim in this case
were verbally handicap?
The Supreme Court further agreed with the Sessions Judge that Mathura was “habitual to sex”
and this entire story was concocted to sound “virtuous in front of Ashok”.

In this regard, two fallacies commonly used in English language have been committed,
‘Argumentum ad Hominem’ and ‘Hasty Generalization’.
This essentially means that rather than deciding this case on it merits, the Court constantly
attacked the character of the victim and came to conclusions without any link to its premise.[4]
It believed that Mathura was so promiscuous that she could not let go of any chance of having
sexual intercourse even when her sibling Gama, employer Nushi and beloved Ashok were
waiting for her right outside the police station.
Mathura’s mistake to point out the exact appellant who had raped her further worked against her
because the Court stated that if she could go against her initial testimony by changing the
accused from Tukaram to Ganpat, it was possible that she had lied about everything else too.
No regard was paid to the fact that these men were strangers to her and she had never seen
them before this incident or that it might be difficult for her to see their faces clearly as the lights
were switched off.
The fact is Tukaram remained a spectator while Ganpat was raping her as though it was a
pornographic film or that he was drunk on duty was also considered extraneous in deciding the
fate of this young girl.
The Supreme Court acquitted both the accused stating that this alleged intercourse was a
“peaceful affair”.