LexTUKA RAM AND ANR. versus STATE OF MAHARASHTRA
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-:\' A B c D E ,F G II 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, appel- lant 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 I .. t 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 inter- A course was forcible and amounted to rape. Since both the accused were B • \ 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 C 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 circ
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