TUKARAM Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment dated the 12th Oct. 1976 of the High Court of Judicature at Bombauy (Nagpur Bench) reversing a judgment of acquittal of the two appellants of an offence under S. 376 read with S. 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st June 1974, and convicting Tukaram, appellant No. 1 of an offence under S. 354 of the Code and the second appellant names Ganpat of one under S. 376 thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years respectively.

(2.) Briefly stated, the prosecution case is this. Appellant No. 1, who is a Head Constable of police, was attached to the Desai Gunj police station in March 1972 and so was appellant No.2, who is a police constable.

(3.) The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was "a shocking liar" whose testimony "is riddled with falsehood and improbabilities". But he observed that "the farthest one can go into believing her and the corroborative cirecumstances, would be the conclusion that while at the Police Station, she had sexual intercourse and that, in all probability, this was with accused No. 2." He added however that there was a world of difference between "sexual intercourse" and "rape", and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed:"Finding Nushi angry and knowing that Nushi would suspect something fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why - this is a possibility - she might have invented the story of having been confined at the Police Station and raped by accused No. 2 Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastratkar, and accused No. 2 is no novice. He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his Pyjama with semen while having sexual intercourse with persons other thean Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him......... ....... ..... ......" and then concluded that the prosecution had failed to prove its case against the appellants.