INTERPRETATION OF STATUTES

TUKURAM & OTHERS

V.

STATE OF MAHARASHTRA

Submitted To – Submitted By -

Anil Kumar Dixit Dhruv Chauhan

(Assistant Professor) BA LL.B (H)

VIIth Semester

SEC- A (57)
CONTENTS

S.NO TOPIC P.NO

1. INTRODUCTION : Mathura Rape Case 1

2. FACT : Mathura Rape Case 2
3. JUDGMENT : Mathura Rape Case 3
4. ISSUE : Mathura Rape Case 4
5. ARGUMENTS : Mathura Rape Case 5-9
6. ANALYSIS : Mathura Rape Case 10-12
7. CONCLUSION : Mathura Rape Case 13
 “Critical Analysis on Mathura Gang Rape Case”
ABSTRACT

The article looks at the changes after the heinous incident i.e;
Mathura rape. Few years ago, the law relating to rape has
suffered many changes, but the same question remains: has the
law really changed?
While looking at judgments of the Supreme Court to claim that
the same judicial mind used in the Mathura rape case are still
valid today. And also the concept of the consent or non-consent
remains the same issue as the changes in law have failed to
address the passive consent and medicalisation of the consent.
The article contends that the goal why changes in law have not
led to change in the conviction rate is because the amendments
to the rape law do not move away from this circular address of
consent and non-consent. The answer came is according to law
and regard with the consent in cases other than the rape, which
is in property and contract that is based on the sympathy of the
intent. Thus, the article concludes that as the law is dynamic and
changing day by day and it needs reconstruction for the
development of women as subject to law and not its object

KEYWORDS: changes, law, judgment, judicial mind, consent, issues,

conviction,
 Amendment, property, contract, dynamic, reconstruction .

TITLE OF THE CASE

Tuka Ram And Anrvs State Of Maharashtra on 15 September, 1978
PETITIONER: TUKA RAM AND ANR.

Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 15/09/1978

Equivalent citations: 1979 AIR 185, 1979 SCR (1) 810

BENCH: KOSHAL, A.D. BENCH: “Critical Analysis on Mathura Gang Rape

Case”

Suchi Jain B.A.LLB (Hons.) Indore Institute of Law

Tuka Ram AndAnrvs State Of Maharashtra on 15 September, 1978

PETITIONER: TUKA RAM AND ANR.

Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 15/09/1978

Equivalent citations: 1979 AIR 185, 1979 SCR (1) 810

BENCH: KOSHAL, A.D. BENCH

 INTRODUCTION
Feminist activism in India gained momentum in late 1970's. One
of the most National level issues that brought women's group
together was a Mathura's Gang Rape Case. The day of 26th
March 1972, considered as the black day in the history of
empowerment of women. On 26th March 1972, Mathura rape
case became the episode of custodial rape in India, where
Mathura, a young harijan girl, was badly raped by two
policemen on the compound of Desaiganj Police Station in
Chandrapur district, of Maharashtra as it led to amendments in
Rape Law via The Criminal Law Amendment of 1983. The
judgment is given by Justice Jaswant Singh, Kalisam and Khosal
who were highly criticized by the people for their legal fallacies
and the interpretation of the law for ambiguous and the sexiest
tone. Then after the Supreme Court acquitted the accused, there
was a huge public outcry and protests against the laws of the
country.
 FACTS OF THE CASE
A young tribal girl named Mathura lived with her brother Gama
She worked as the laborer at the Nushi's house for the
employment. During the period of employment she developed
the sexual relations with the son of Nushi's sister, Ashok. They
decided to get married. Her brother filed a complaint to the
police ensuring that Mathura had been kidnapped by Nushi, her
husband Laxman and Ashok on 26th of March, 1972. The
statements of Ashok and Mathura were recorded at about 10:30
P.M., and the head constable 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. The appellants also asked
Mathura to stay at the police station only. Thereafter closing the
doors and turning off the lights inside, Ganpat, the appellant
No.1 took Mathura to the washroom and raped her. After the
Ganpat was done, the appellant No. 2 Tukaram, tried to rape her
but failed due to highly intoxication but touched her private
parts.
After the incident Mathura was examined by the doctor and
found no injury on her body. The examiner did not found the
symptoms of semen, even on the pubic hair. The semen however
found on the girl's clothes. After examining her doctors has also
estimated the age of Mathura as between 14 to 16 years.
JUDGMENT BY THE SESSION JUDGE
The session court held that both of the accused are not liable for
the offence of rape because the intercourse between the girl and
accused was a “consensual sexual intercourse” as the girl was
habituated to the sexual intercourse. And also she was scared of
Ashok and Nushi that is why she had not made any sound. The
district judge therefore acquitted both of the appellants.

JUDGMENT BY THE HIGH COURT

The Bombay High Court has reversed the order of the Session
Court and held that the sexual intercourse was a rape and not a
consensual sexual intercourse. It is proved by the evidence that
since, both the accused were stranger to Mathura, how she can
have sexual intercourse with them to fulfill the sexual needs of
her.

JUDGMENT BY THE SUPREME COURT

The appellant contended for the special leave. And Supreme
Court again converted the decision of the High Court and
acquitted the accused. It was agreed with the decision of the
Session Judge and held that this was a case of consensual sexual
intercourse. On this spot the Supreme Court more added that as
“no marks of injury” were found on Mathura’s body there was “no
battle” on her part and since she did not “raise an alarm” for help she
“consented to sex".
ISSUES BEFORE THE COURT
1. Whether there was consent of girl ?

ARGUMENT NO.1

According to the decision of the Trial Court, in the question of

consent, the intercourse had developed consensually as the girl was
habituated to sex and wants to fulfill her sexual needs. But, High
Court reversed the decision of the Trial Court and held that that the
sexual intercourse was a rape and not a consensual sexual
intercourse. It is proved that as Mathura was a minor and of 14
years of age, even if the consent given by her; how it can be
considered as the valid consent. Hence, it was not the valid
consent.

2. Whether the appellant No.1 and No.2 will be charged for Section 376
of Indian Penal Code ?
ARGUMENT NO.2

On the evidences presented before the Trial Court it was held that
Mathura was habituated to sex and on the basis of this evidence,
both of the appellants are not charged with Section 376 of Indian
Penal Code and got acquitted. But, to the contrary High Court held
that even though Mathura was habituated to sex and as both the
accused were stranger to Mathura, how she can have sexual
intercourse with them to fulfill her sexual needs.
 3. Whether the act of police officer will amount to rape ?

ARGUMENT NO.3

4. Trial Court has acquitted both the appellant and High Court held
the Police Officers liable for the offence of rape under Section 376
of Indian Penal Code.
5. The Trial Court held that since Mathura had not raised any alarm,
her allegations of rape were untrue. Her ways humbly following
Ganpat and were making allow him to have sexual intercourse with
her and giving indication that the 'consent' in question was not a
consent which could be kept aside as 'passive submission1'.
6. According to the Trial Court police officers are acquitted on the
basis that the intercourse had developed consensually and while
having intercourse Mathura have not raised any alarm or did not
made any sound for help. But the High Court held both of the
police officers liable for the offence of rape.

4. Whether the grounds of acquittal of the police officer by the Court are
valid ?
ANALYSIS OF SECTION: 376; IPC, PUNISHMENT FOR RAPE:

Whoever, except in the cases provided for by subsection (2) , commits

shall be punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or for
a term which extend to ten years and shall also be liable to fine unless
men raped his own wife and is not under twelve years of age , in which
cases , he shall be punished with imprisonment of either description for a
term which may extend to two years or with fine or both . Provided that
court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than
seven years.

Whoever—
(a) if a person being a police officer commits rape —
(i) in the area of the police station to which he is appointed2; or
(ii) in the building of any station house whether or not situated in the
police station to which he is appointed; or
(iii) any woman under his custody or under any subordinate police
officer under him; or
(b) if any person being a public servant, takes benefit of his official
status and commits rape on any woman under his custody as such public
servant or under the custody of subordinate public servant; or
(c) if any person commits rape with woman knowing her to get
pregnant; or
(d) if any person commits rape with woman under twelve years of age;
or
(e) if any person commits gang rape, shall be punished with rigorous
imprisonment for a term which shall not be less than ten years but which
may be for life and shall also be liable to fine:
Provided that, the Court may, for sufficient and particular reasons which
is to be highlighted in the judgment, impose a sentence of imprisonment
of either description for a term of less than ten years.
Explanation 1.— Where a woman is being raped by one or more in a
group of persons acting in furtherance of their common intention, every
person of that group shall deemed to have committed gang rape under
the definition of this sub-section.
1. Tukaram v. State ofMaharashtra AIR 1979 SC 185.
2. Section; 376 of IPC, 1956
ANALYSIS OF LAWS BEFORE THE CRIMINAL LAW AMENDMENT, 2013:

Rape laws have walked through several changes before attaining the present
condition through various criminal law Amendment of 2013. This
amendment or a change was brought at the national anger against the cruel
rape of a physiotherapist student in Delhi.
Rape is defined in Section 375 of the Indian Penal Code. In general sense
rape is a sexual intercourse with a women without her consent by force or
fear. In the year 1983 Section 375 has also gone through amendment, which
had changed the definition of rape and also made changes in the punishments
of the rape mentioned under Section 376. This was made through the
Criminal Law (Amendment) Act of 1983. The amendment of 1983 brought
due to the criticism of the judgment of “Tukaram v State of Maharashtra” i.e;
Mathura Gang Rape Case3. The ratifications of the case were seen in the
amendments that were brought about in the IPC and the Indian Evidence Act.
Section 376 A to D is new in the IPC and section 114A was added as an
introduction in the Indian Evidence Act.
For analyzing the laws of the Amendment act 2013, it is important to know
how thee rape and its punishment is defined at former. Before the amendment
act 2013, rape involves nonconsensual sexual intercourse between man and
woman.
There are the six essential elements that defines rape. The first condition
necessary for the commission of the rape to be the sexual intercourse between
a man and a woman. It was strongly believed that the rape can be committed
only if the sexual intercourse had taken place without the consent of the
victim, but this is not always he case, rape can be committed even after the
consent has been obtained if the women is below the age of sixteen years. On
a closing part at which the situation necessarily required for the commission
of rape, majorly divided into three parts. The starting two clauses deals with
sexual intercourse with a woman ‘against her will’ and ‘without her consent’.
This means that the women is passively capable of giving consent or not.
The rest two clauses again deals with, the consent given by women woman in
fear by putting her family members into threat or the consent obtained
through misconception. The last two situation deal with the situation
consensual sex takes place with the underage woman.

RAPE LAWS AFTER THE AMENDMENT OF 2013

Lok Sabha on 19th March 2013, and Rajya Sabha on 21st March 2013,the
Criminal Law Amendment Act was passed and also provides for the amendment of
Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on
laws related to sexual offences. The Bill received President’s assent on 2nd April
2013.Widespread protest of the society forced the legislature to change the
prevalent rape laws. The basic aim was to formerly implementing the cruel
punishment of the rape rather than broadening the definition of the rape.

Late Justice J.S.Verma, Gopal Subramaniam and Ex-Justice Leila Seth comprised
with the famous ‘Justice Verma Committee’ which was made to accumulate
suggestions and make recommendations for the legislature to make a law to
combat rape and other crimes against women.

A law is only as good as the systems and individuals that implement them.
Thinking and attitudes of the society need to be changed so that women can be
treated equally and can truly be respected without any discrimination and what are
their value in society.”4

The offence of rape has now been amended and got a huge ambit which is enough
to include all kind of penetration in any part of the body of a girl. The fact that the
new suggestions added that any penetration would be considered as rape was the
most capable tool in widening the domain of the term rape which was demanded
on the grounds of suggestions of the fifth law commission report. Registering
complaints and medical examination are also the part of this recommendation. The
report surely mentioned, “Any officer, who do not register a case of rape
complained or reported to him, or attempts to avoid its investigation, commits an
offence which shall be punishable as prescribed.

CRITICAL COMPARISON OF THE TWO LEGISLATIONS

As the view of the societal view changes time to time the law also changes
frequently with the advent of new technologies. But it will be fair only when the
matter which is regulating the law and the prevailing in the society changes timely.
The chief rape and sexual assault cases, for example the ‘Shopian Rape Case, the
ArunaShanbaug Case, Nirbhaya Rape Case, Priya Patel6, the Mathura Rape Case,
etc. all the above cases had an effect for functioning the rape laws and also for their
interpretations as well as reformations and their changes. Rape was included in the
Indian Penal Code, 1860 in its original form since 1924.

On occasions of rape the evidences related to consent is on the basis of the past
conduct of the woman. In the previous cases prostitutes are also get raped but their
rights are not secured as a victims and always create a chaos in the mind of the
judiciary. The only reason to include this amendment was to prevent the breach of
privacy of victim’s life by preventing it to be included as a piece of evidence in
court.

Last but not the least and very essentially, Sexual Harassment at Work Place Act,
2013 has also introduced with addition to the IPC and the modern definition has
been provided for the rape.

REASONS FOR THE ENACTMENT

The brutal gang rape and the consequent death of the physiotherapy student in New
Delhi was the reason of the origin of the Criminal Law Amendment Act, 2013 that
came to amend the already existing laws related to the sexual offences in the
country. The act has mainly implemented the IPC, Code of Criminal Procedure and
the Indian Evidence Act.
THE DELHI RAPE CASE
2012: This incident has generated widespread protest not only in India but
also in Abroad. The government of India somewhere failed to provide the
protection and security to the women of the country. And the protest was
taking place all over the country by forming the Candle March or various
types of criticism.

SUGGESSTIONS OR RECOMMENDATIONS
After researching on the Mathura Gang Rape Case the loopholes which
should have to be taken into consideration while declaring the judgment are
given below:
- That the acquittal granted to both the appellant by the Supreme Court on the
ground that there is no injury on the body of a minor girl that is why the
offence was not amount to rape but will be considered as consensual
intercourse.
For taking the opinion against this judgment, that if the
girl do not have any injury on her body, it is not the valid ground of proving
that the offence was not of rape but of consensual intercourse.
- This is also considered as the invalid ground that the girl has not raised any
alarm for help, so there might be the consensual intercourse between police
officers or a girl.
In the contrary statement, might the girl was unable
to raise the alarm or to make a call for help, that is why the acquittal given to
the accused on this ground was also not correct.
- In the judgment by the Session Court the consent of a minor was also not
considered as the invalid consent.
Consent plays an important role in the act of sexual intercourse with a girl
whether she is minor or major, if the consent is not there for intercourse how
it can be considered as the consensual intercourse. Therefore, the consent is
must.
The major loophole is that the Criminal Law Amendments shall provide for
the harsher punishment to the accused of this offence.
- Judiciary should take a corrective measure for minor or major as soon as
possible for the same offences.
- So, for improving the status of women as well as of judiciary in the society
Criminal Law Amendment should be furnished timely, and new provisions
should get implemented into the act.
- Rigorous punishment for life shall be awarded to the offender.
- Even if the juvenile is also committing the offence of rape, he shall also be
punished with the rigorous punishment.
- The concept of reformation home for the offence of rape shall not be
considered for juveniles and they shall also be punished with the same
CONCLUSION
To conclude the Mathura gang rape case in which both the victims got
acquitted from the appellate court as with the comparison between the
legislations of before 2013 and 2013 has been discussed above. The
amendment in the rape cases are always came up with the different aspect or
definition of the offence. Mathura gang rape case was as the one of the
former rape case after the independence which took a lot of criticism in his
hands, which ultimately results in the development of criminal law
amendments. 1998 was the year of the various changes in the laws related to
rape in form of guidelines from Vishaka gang rape case which is sexual
harassment at workplace i.e; laws of rape before 2013. And then came the
major change in the laws of rape in the year 2013 which had not only altered
the rape laws but also has changed the definition of rape and widened its
scope through Delhi gang rape case from The Criminal Law Amendment Act
has furiously amended in the year 2013.
The 2013 Act should be viewed as a important place holder in the fight
against the sexual assault and gender violence in the country. The most
awesome outlook is the service of prevailing attitudes to rape and sexual
offenses in the population apparently in coping with moral “confusion,” as
economic transformation necessitates far-reaching changes in gender roles
while social attitudes stay drenched in moral conservatism and misogyny.
There are various laws prescribing deterrent punishment for offences against
women. What is actually requirement of a concrete legislation, this was
however, partially achieved through the passing of the Criminal Law
(Amendment) Act, 2013; to infuse sensitivity, understanding and more
significantly, the mindset among police, executives to implement the laws
more in spirit than in letter. Only then deterrent punishment can be awarded
in crimes against women.
On 15 march 2014, in the Delhi Gang Rape Case Death sentence upheld by
the High court of Delhi. Fell into the rarest of rare category.