Rape is a foul truth of India; in its horrific image, which shows the people's mindset to behave with women as acquiescent. The suffering and the mental destruction inflicted to a sufferer of rape damages her longingness to live, is unbearable and disgraceful. The mentality of the people gives rise to her capacity to tolerate.

There are few decisions given by the Apex Court that shows the lore that previous occurrence on the rape survivors is a fair incitement to the offenders to carry out the hateful offence and non-appearance of medical proof to show rebellion has always been taken as assent. In the last few years, there has been a tremendous change in judiciary.

In the case being discussed i.e. Tukaram & Anr v. State of Maharashtra has been given another name i.e. 'Mathura Rape Case'. The decision which was given by the Apex Court plus the Sessions court burnt through India. This particular case was extremely contentious because of the comments made by both the Courts. It highlighted the problem of "passive consent" relating it to the purity or virginity of a female ' in cases dealing with Rape and describing custodial rape. Many laws got changed after the decision of the case.

Citation: AIR 1979 Sc 185
Court: Supreme Court Of India
Bench: A.D. Koshal, Jaswant Singh and P.S. Kailasam

Facts
A girl named Mathura, who belonged to Adivasi community, aged between 14 years to 16 years used to stay with her brother whose name was Gama. Her parents were dead. She was maid in the house of Nunshi. At the house of Nunshi she got interacted with her nephew named Ashok. Both of them established sexual connection with each other leading to the decision of getting married.

Her brother on March 26, 1972 registered a first information report at the police station of Desai Gunj stating that her sister had been taken away by the family members of Ashok. There, Baburao who was the Head Constable of the police station at 09:00 p.m. called everyone including Gama, her sister Mathura, Nunshi and Ashok for interrogation and giving statements. Till 10:30 PM statements were recorded by Baburao and after that he left for his resident place and even asked everyone to leave.

The moment they were leaving a Constable named Ganpat told Mathura to accompany him inside the police station. There he molested her in the washroom by seeing the intimate areas of her body with a flashlight. After that he forced her behind the police station and then raped her.

The Head constable named Tukaram came and he too molested her by touching up her intimate areas but he was unable to rape her as he was highly in a drunk condition. On the opinion given by a doctor named Khume who tested Mathura firstly, Mathura registered an FIR alleging the two police constables. She got tested by Dr. Kamal Shastrakar on March 27. The doctor got no wounds on the body of the victim and even denied of getting any signs of sexual intercourse. Presence of semen was found on the dresses of both, the victim and Ganpat, the constable.


Issues Of The Case:

1. Whether the assent of the minor girl present in the behave done to her?
2. Whether the offenders will be punished as per Section 376 of Indian Penal Code?
3. If the behave done towards the victim by the police amounted to rape given under IPC?
4. Whether the offenders be acquitted?

Judgment Given By The Courts
Judgment given by the Session Court
The sessions court found the defendants not punishable of the offence of rape. The scrutiny and the comments given by the Sessions Court were extremely controversial. The court commented that the victim though being a minor was 'accustomed to sexual connections', so, the assent given by her was not obtained forcibly and was a free consent. She on her own asked Ganpat to have physical intimacy.

As per Section 375(6) of the Indian Penal Code, physical relations with a girl below the age of 16 established in presence or in absence of her consent certify sexual assault. Even the fact of Mathura being between the age of 14 to 16 years was established by Dr Shastrakar, still, the Judge of the Sessions Court held that the evidence establishing the age of Mathura was missing.

As per the Sessions Court, there was occurrence of sexual intimacy but it did not result from rape. The Court quoted about the medical reports as per which there was no presence of 'force' on the minor. The court stated terms like 'a shocking liar' while describing the victim and even stated that information given by her was 'perforated with error and uncertainties'. So, here, the accused were discharged.

Judgment given by the High Court
In contrast to the decision of the Sessions Court, the High Court gave a different opinion. It noticed that the Sessions court had made a mistake in elucidating the definition and distinction associated between assent and passive submission. The High Court established many analytical inspections.

The High Court said that the "non-appearance of semen on the vaginal parts and pubic hair" was because of the matter that the victim was tested after twenty hours of the occurrence of the event and after that she must have taken bath and then would have gone for the medical tests. The High Court said that the officers present in the police station were not acquainted to the victim, so, giving her consent for the sexual intimacy was impossible.

The reason for the presence of the girl was that Gama, her brother, wanted to file an F.I.R. against Nunshi's nephew, in this type of situation, the victim could not likely give her assent for sexual intimacy. The respected High Court was also very careful to accept the very fact that the offender must have started off the shameful act and if it was really so, then, the victim who was minor was in no place to counter. So, taking into account the idea of the consent taken passively is their exposition. As a result, the High Court punished and convicted both the appellants.

Final Judgment of the Supreme Court
A.D. Koshal, Jaswant Singh and P.S. Kailasam constituted the bench of the Apex Court and gave a disputable judgment. There was a difference in the opinion of the Apex Court and the High Court. The opinion of the Apex Court aligned with the opinion of the Sessions Court. As per the Apex Court, the assent given by the victim was not considered to be a passive assent. The Court also denoted materiality of no sign of wound on the body of the victim, no clues of refusal, shortage of attempt in showing any apprehension, and many more.

The Apex Court held that the burden to prove that all elements of Section 375 of IPC are present needs to be on the plaintiff in the case of physical intimacy. The Apex court completely rejected the evidence that she was forced to assent because of the several grounds. This event was taken as a peaceful relation in the words of the Court. The report submitted after the two-finger test' was taken into account, which proved to be extremely humiliating for the victim who survived the rape. As a consequence of this, the two offenders were released.

Analysis Of The Judicial Interpretation
In the Mathura Rape Case, only the approach adopted by the Sessions Court was not a bigot approach but also the approach of the Apex Court of India had the identical observations. The Apex Court mistook in acknowledging the reality that the sufferer's incapacity to resist could be due to several elements, but the court related absence of refusal with assent.

The particular case was a typical case of 'the sufferer's character slaughter'. It is relatively distressing to realize that even the erudite jurists of the Apex Court had identical remarks just like the Court of Session.

The decision given in the particular case was actually very disheartening and saddening, that eventually directed to a disturbance in the entire country. Many letters were written directly to the then Chief Justice of India. The decision in this rape case directed to bring various alterations in the laws relating to crimes, basically the Indian Evidence Act and the IPC. This case also had a long-lasting footprint on the judicature and the method by which it knobs identical cases.

Mathura Rape case was clearly destruction. It was an absolute picture of unsophistication on the part of the lower as well as the Supreme Court to mark the character of the victim or other instances of the offence, for instance, 'no presence of semen in private areas', 'no call out for help', 'no signs of wound', etc.

The method adopted by the judiciary concerning with the cases relating to rape in custody has turned relatively delicate. The views and judgments given by the different High Courts turned feasible. The High Court of Madras made an extraordinary scrutiny. The High Court of Madras was exceedingly condoling in acknowledging the reality that though the intellectual harm cannot be changed; the minimum which can be done is to give the sufferer monetary compensation or monetary relaxation.

The High Court of Madras also acknowledged the important part the Police plays as curators of law and did no tries to safeguard their frightful deeds. In contrast to the offensive comments made by the Apex Court and also by the Court of Sessions in the Rape Case of Mathura, the judicature has now become careful in giving judgments in the identical cases.

The Courts across all over the nation started taking appreciable attempts in not attaching to the psychological anguish and damage of the sufferer of such disgraceful offenses by not defaming the personality of the sufferer and restricting passing vulgar comments on the victim. However, bitterly, all the courts of the nation are not pursuing the same attitude. After the judgment, in some cases, one of them being the rape related case of Tarun Tejpal Sessions Court of Goa attacked the sufferer's past relating to her sexual relations and released the offender.

Conclusion
The nation would not be able to come ahead and safeguard its women if the judicature, at the time of giving the decision, never restraints from approaching a conservative, conventional, archetypal attitude as forecasted in the Rape Case of Mathura and also in the case of Tarun Tejpal. The court entirely disrespected the trauma that she suffered even by seeing the actions and behaviour of the sufferer assassinating her past relationships.

The problem of rape at the time of custody was first time discussed in the Rape case of Mathura. This particular case not only linked with relevant problems concerning assent given passively, signals of proof on the body, a female's previous sexual relations, etc. but also showed their sexist ideas the judicature had while describing about this peculiar rape.

It is exceedingly distressing to outline that such bigot, typical and orthodox views still continue not only in the judicature but are also present in the Indian society. Now the time has come when we all need to change and polish our low mentality and uplift the sufferers of such disgraceful offences to come ahead and raise her voice without having the apprehension of 'being judged by the people.

Award Winning Article Is Written By: Ms.Shivangi Pandey

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