Tukaram and Anr. v. State of Maharashtra

Citations – 1979 AIR 185, 1979 SCR (1) 810

Date of Judgement – 15/09/1978


The case in hand is about the rape of a 16-year-old girl named Mathura. Through this case analysis, I intend to highlight the concerns and issues that have not been dealt with in the original judgement given by the Supreme Court. Firstly, I’ll be posing some critical questions with the help of the analysis provided by Dr. Upendra Baxi and others in their open letter to the Chief Justice of India, which the Supreme Court judgement miserably fails to answer in its judgement. Asking these questions is essential to fully comprehend the significant issues which have not been dealt with and contemplate the path the judiciary takes to dispense its so-called textual idea of ‘justice.’ Next, I will present my arguments, which will analyze the various segments of the present case’s judgement, which are distorted and demand explanation. My analysis of the case will include aspects like ‘authority,’ ‘reliability of the victim’s testimony,’ ‘scope of criminal law,’ ‘gender discrimination based on patriarchal norms,’ difference between ‘consent and submission’ and lastly, ‘structure and agency’ followed by the conclusion.

To start with, I firmly believe that the Supreme Court has not provided any valid or consistent reasons to justify its stand about why the High Court’s reasoning lacks conviction for rape. There are many questions which remain unanswered, like why Mathura, a 14-16-year-old, was in the police station in the “dead hour of the night”; and the Supreme Court raised no concerns as to why she was asked to remain in the police station even after her statement was recorded and her relatives were asked to leave. Additionally, the fact that the lights were switched off in the police station when Mathura was inside, and the doors were shut is not considered.

According to the Supreme Court, the absence of physical marks on her body and no screaming connote sexual intercourse in the police station. However, there is not one mention in the judgement that condemns the use of the police station as a place for submission to sexual intercourse. The Supreme Court, while describing the facts of the case, acknowledges that “Tukaram was seated in a cot nearby” and that he was too intoxicated to rape Mathura. Nonetheless, the fact that Tukaram, the head constable, decided to keep mum and not take a single step in furtherance of protecting Mathura from Ganpat and him being intoxicated in the police station, is not considered material enough to be discussed and criticized in the judgement.

I share my opinion with Upendra Baxi and others in their Open letter to India’s Chief Justice of India[1] on some points. For instance, if an inability to cry out for help and raise the alarm was equivalent to having consensual intercourse, what would be the Supreme Court’s reaction and reasoning if the victim were dumb or gagged?’ The Court stoops so low as to expect Mathura to have marks of physical injury over her body as a ‘visible proof’ of all the sexual harassment she went through. Absence of such marks is henceforth equated to absence of stiff resistance, by the Court, and a hasty conclusion is drawn that Mathura was a person of easy virtue due to her liaison with her lover, accepting the assertion made by the Sessions Judge that Mathura was “habituated to sexual intercourse.” The whole incident of rape narrated by Mathura is an impossible event. Thus, instead of questioning the accused, Mathura herself is suspected, it is her morality and virtue, which is doubted. This shows how a woman’s dignity is accorded a basis through certain pre-defined and desirable standards of conduct established by the society.

Argument I- The notion of ‘authority.’

Authority, in its simplest form, means dominance, which is coupled with ‘fear.’ Fear is something that makes a person turn into a ‘subject’ or rather a ‘victim.’ In the present case, the sense of authority exercised by the two policemen was indeed very gruesome. It was more than enough to produce fear in the mind of Mathura, such that her will or voluntariness got diminished to mere compliance. The act of calling Mathura to the police station in the “dead hour of the night” is enough to instill a sense of fear arising from an authority in the mind of the victim of such a grotesque offense of ‘rape’. Thus, a parallel can be drawn with the case of Nandini Satpathy.[2] It was established that “According to section 160(1) of Criminal Procedure Code, a woman shall not be required to attend police investigation at any other place than her residence. The Court then opined that the very act of directing a woman to come to the police station in violation of section 160(1) CrPC might make for tension and negate voluntariness”. Here it can thus be inferred that the Indian Supreme Court puerilely expects a young girl aged 14-16 years to be fearless, have absolutely no fear of authority, and thus scream and fight two well-built, sturdy policemen when forced into having intercourse.

Argument II- The Court’s reliance on the ‘testimony of the victim.’

The whole judgement consists of combinations of some offensive words such as describing the rape as a “story,” “tissue of lies,” “habituated to sexual intercourse.” Yet, the most disturbing one – “Mathura was a person of easy virtue.” The tone adopted by Justice Koshal and his line of reasoning to conclude appear to be quite insensitive not only towards Mathura but to all young girls in general. The point of significance here is that the focus of the judge stands completely deviated, from evaluating the commission of rape to questioning the sanctity and morality of the victim herself.

Argument III- The ‘scope of criminal law’ in determining the guilt-

Indian law has failed indeed to realize the real essence of the doctrine of ‘burden of proof.’ According to this doctrine, the burden of proof is on the victim to convince the Court that the said offense has been committed to them. However, in this case, the Court failed miserably to comply with this doctrine by leading on both the accused persons. The Court labelled the 16-year-old victim as a promiscuous girl who liked engaging in sexual activities, thereby undermining the difference between sexual intercourse versus rape. While the former is a consensual activity, the latter does not involve consent. Therefore, it can be said that the Court engaged in ‘victim-blaming’ instead of determining the guilt of the accused.

Argument IV- Gender discrimination based on patriarchal norms

The laws of our country are formulated such that it is always the woman, who’s sanctity and purity are doubted. These laws are such because of them being formed at the time of extremely regressive and patriarchal times. Hence, it can be ironically seen that the presence of semen marks on Ganpat’s trousers and his sexual habits are considered of little significance by the Supreme Court. It is dreadful when one reflects on the verdict of Justice Koshal, which appears to have been influenced by a strong taboo against pre-marital sex almost as if it provides a permit to all men, including the policemen to commit rape on young and innocent girls.

Argument V- The difference between ‘consent and submission.’

It appears from the facts stated by the Supreme Court and its holding that Mathura had submitted to the rape as there was no stiff resistance. Therefore, the policemen were not found guilty of rape. Surprisingly, Justice Koshal has focused entirely on Section 375 (3) of IPC, stating that the woman passively submits only when her “consent has been obtained by putting her in fear of death or hurt.” The reasoning and the conclusion of the Court in acquitting the two appellants revolve only around this clause, and it pays no heed to the second clause of Section 375 of the IPC that deals with passive submission, where the sexual intercourse is “without consent” of the woman. The Court fails to appreciate the difference between “consent” and “submission.” The core distinction here is that consent involves submission, but the contrary is not always true.

Moreover, the absence of resistance is not equivalent to or indicative of consent. Even if Ganpat were to be charged under the third component of Section 375, the question of whether there was “consent” remains relevant and crucial. Therefore, the argument put forth by the Supreme Court that only “fear of death or hurt” is capable of vitiating consent for sexual intercourse is ‘flawed.’ Thus, it becomes crystal clear to conclude that according to the facts of this case, there was no consent from Mathura but merely a ‘submission.’ 

Additionally, it is somewhat problematic for the Court to expect that a 16-year-old child, who is fending for herself, by doing manual labor, instead of getting the privilege of education, is capable of understanding the concept of ‘consent.’ The wording of the judgement is disturbing when Mathura’s struggle (evidenced in the form of the nail and bite marks on both the accused) is considered a valid consent merely because she could not say no. The Supreme Court could have interpreted the word “consent” better and in a broader term while giving its verdict.

Argument VI- ‘Structure and agency’ as construed within the society –

Since the establishment, the Indian law portrays the position of a rape victim within the society as someone helpless and vulnerable. This powerful dictum is extremely flawed, vile, and repugnant. It not only degrade the status of women in the society but also shows the typical patriarchal view our lawmakers adopt in today’s times.

 The ‘moral aspect’ of the case has been completely sidelined by Justice Kaushal, by condemning the constitutional rights of a woman. The whole idea of ‘structure and agency’ jumps in here. What agency does a woman exercise in such a situation? The societal structure and framework of suppressing and hiding a rape victim from others, doubting if that victim will be able to get married or not, keeping her locked at home, showing pity and sympathy towards her, all contribute towards the diminishing or rather extinct agency of women in the society. The Supreme Court pays no heed at all to the factors associated with the tender aged victim. Mathura hails from a poor socio-economic status. She lacks the knowledge of legal rights and the access to legal services[3] in such a case, her autonomy in exercising her agency is very bleak. 


Considering the several factors that are not considered in the Supreme Court judgement, I agree with the verdict of Bombay High Court because I believe that the arguments presented by Justice Koshal are insufficient and unsubstantial to acquit the two appellants. Mathura, a girl between the age of 14-16 years helplessly surrendered her body to Ganpat, who raped her. This amounts to passive submission under section 375 (2) of the IPC, which is not equivalent to consensual sex. This judgement completely degrades the moral rights of a woman. It shows how the Indian law miserably fails to sympathize with the deep agony of all such women, who, like Mathura, have been sexually harassed and raped.

While this judgement was one of the many unfortunate and disturbing precedents, it is essential to realize that reasoning such as the one adopted in this case results from severe flaws in the understanding the root cause behind the commission of crimes such as rape or sexual harassment. Sexual harassment of women results from the ‘sexual objectification’ of women. Objectification reduces women to their biology as if there is nothing to a woman other than her sex (or her body). Sexual objectification can be attributed to the most challenging and ancient social structure, i.e., patriarchy. It would be an understatement to assume that only men are responsible for patriarchy. Women, too, partake in it by abiding gender-roles and regressive notions such as ‘purity’ and ‘virginity.’ Thus, the need of the hour is to detect and destroy patriarchy from our mindsets. In doing so, we would be doing a service to ourselves and our society and our Criminal Justice system that needs to approach Gender-based crimes through the lens of Reformative justice. 

Kanak Mishra (Author) is a Penultimate Year student at Jindal Global Law School, Sonipat.

[1]Upendra Baxi et al., An Open Letter to the Chief Justice of India (Jun. 28, 2020), https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf.

[2]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

[3]Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

Woolmington vs. DPP

Citation: [1935] UKHL J0405-1

Date of Judgement: Friday 5 April 1935

Bench ( House of Lords): Lord Hewart (L.C.J.), Lord Atkin, Lord Tomlin, and Lord Wright.


Woolmington’s Case is pre-eminent as far as the burden of proof is concerned. It is said that “the presumption of innocence is like a golden thread in the Criminal Justice System.” 

In this case, Woolmington a 21-year-old farmer from Dorset married Kathleen Woolmington.  On November 22, 1934, Kathleen left for her mother’s house, leaving Woolmington. To get his wife back, Woolmington stole a gun and went to his wife’s house 

In his way, he tried to threaten his wife by saying that he will kill himself, fortuitously he shot his wife, and she died on the spot.


1) Whether proving beyond a reasonable doubt is rooted in the Presumption of Innocence?

2) How does the defence of alibi give rise to reasonable doubt?

Held – Swift J. along with other juries held that the onus to prove not guilty should be on the shoulders of the accused, however when Woolmington appealed, Avory J. Stated that Prosecution has to prove that the accused is guilty or not relying on Foster’s Crown Law.

This resulted in the acquittal of Woolmington. 

Personal Opinion: – 

To constitute a Crime, Mens Rea and Actus Reus both are required. In this case, Woolmington claimed that he did not mean to kill his wife rather he was just trying to threaten her at that time and accidentally he shot her. In my view, the decision by Avory J. was appropriately given as the onus always lies with the prosecution to prove beyond a reasonable doubt.

Case analysis by – Sanyogita

Virsa Singh V. State of Punjab

Citation: 1958 AIR (SC) 465, 1958 SCR 1495.

Bench: S.J. Imam, P.B. Gajendragadkar and Vivian Bose, JJ.

Date of judgment: 11.3.1958 

Facts: Virsa Singh, along with five other members made an unlawful assembly and attacked one Khem Singh with a spear to injure him and as result of injury in the abdomen his abdomen was fractured and three coils of intestines came out of the wound which was around 2” * ½ inches which led to his death. According to the Post Mortem Report, the Doctor stated that “the injury was sufficient to cause the death in the ordinary course of nature”. 


  1. What offence is made out as having been committed by the appellant?
  2. Whether a person can escape from punishment with respect to injury caused which led to death when there is a lack of intention?


Trial Court: The accused was tried under Sec 302 of IPC individually along with the other five accused under Sections 302,324, and 323 read with Sec 149 of IPC. 

The Judge was under the opinion that the common intention was to injure and not death and was caused due to rash action. Therefore he applied Section 300(3) in the case and convicted the appellant under Sec 302 of IPC and was sentenced to imprisonment for life. Whereas the remaining five were acquitted of the charge under 302 but were convicted under Sec 326,324 and 323 read with 149 of  IPC. 

High Court: The court acquitted all the accused except Virsa Singh, whose conviction was confirmed. 

Supreme Court: It was argued that the prosecution has failed to prove that there was an intention to cause death. 

The prosecution must prove the following four facts to bring an action under Section 300(3);

  1. It must establish quite objectively, that a bodily injury is present.
  2. The nature of the injury must be proved.
  3. It must be proved that it was not accidental or unintentional or that some other third kind of injury was intended. 
  4. It must be proved that injury must be sufficient to cause death in the ordinary course of nature. 

The court, after observing all the facts of the case stated that the accused used so much force that it penetrated the bowels, and three coils of the intestines came out of the wound, it would be preserved to conclude that he did not intend to inflict the injury as he did. Therefore the court dismissed the appeal. 

Personal Comment

The Judgement given was perfectly fair because the intention of the person is very much difficult to prove, and in order to come up for a conclusion of such cases, the intention must be inferred from the nature of the injury and is the best possible way for bringing an action. 

                                                          (By – Durga Bhatt)

Bachchan Singh v State of Punjab

Citation – AIR 1980 SC 898


In this celebrated and landmark case, the Appellant, Bachchan Singh was convicted for the murders of Desa Singh, Durga Bai, and Veeran Bai and sentenced to death under section 302 of the Indian penal code, 1860 by the Session judge. The   High Court confirmed the decision of the Session Court and rejected the appeal. Then, Bachchan Singh appealed to Supreme Court by Special leave, which was heard before the five judges bench of Hon’ble Supreme Court. 

Issues raised:

1. Whether section 302 of the Indian penal code, 1860 is constitutional or not? 

2. Whether the sentencing procedure provided in section 354(3) of the code of criminal procedure is unconstitutional on the ground that it gives the court an unlimited discretion and allows death sentence to be arbitrarily imposed on a person found guilty of murder or any other capital offence punishable under IPC with death? 

3. Whether Article 19 of the constitution is applicable for judging the validity of the questioned or impugned provision in section 302 of IPC?

4. Whether the challenged or impugned provision of 302 of IPC contravenes Article 21 of the constitution?       


1. The Supreme court with the majority of 4:1 upheld the constitutional validity of section 302 of the IPC, 1860.

2. As to the second issue, the court upheld the constitutional validity of the procedure in  354(3) of CrPC, 1973. The court said that a sentence of death is the extreme penalty of law, and there should be a special reason to support the death sentence. Accordingly, Sub- section (3) of section 354 of the CrPC provides that “When the conviction is for an offence punishable with death or, in the alternative with imprisonment for a term of years or imprisonment for life, the judgement shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reason for such sentence”. 

3. Regarding the third issue, the court held that the provision of section 302 of IPC, 1860 violates neither the letter nor the ethos of Article 19 of the constitution. 

4. While deciding the fourth issue, the court said that article 21 of the constitution portrays the implications and intentions of the founding fathers that they recognized the rights of the state to regulate law and order in the state and impose the death penalty on a person as per the procedure established by valid law (fair, just, and reasonable). And finally, the court held that Article 21 is not contrary to the provision of section 302 of IPC.   

Personal comment  

In this case, the Supreme court laid down the doctrine of  “Rarest of the Rarest ” after reviewing the landmark case of Jagmohan Singh v State of Uttar Pradesh, where for the first time the constitutionality of death penalty was questioned.  This present case specifically lays down that the death penalty must be restricted and given in the rarest of the rarest cases. According to the court, “A real and abiding concern for the dignity of human life and postulates resistence to talking a life through law’s instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”

By – Jyoti

This analysis was reviewed by Mohd. Altmash, the Convenor of IJOSLCA

State of Maharashtra v. Atul Rama Lote

Citation – MANU/MH/0737/2019

Facts of the Case

The instant matter had arisen as an appeal before the Bombay HC against the judgement passed by the District Judge-8 and Special Judge, Protection of Children Against Sexual Offences, 2012 (“POCSO”) The accused, Atul Rama Lote is alleged to have kidnapped the deceased victim (who is a minor, aged seven at the time of death) for the purpose of committing rape, subsequently murdering her and hiding the body. For the same he had been charged by the police under sections 363, 366(A), 376 and 302 of IPC and under sections 6 and 8 of POCSO Act on 25/2/2014.

The Trial Court, however before passing the judgement, had altered the charges as per the provisions of section 216 to sections 363, 376(2)(f), 302 and 201 of IPC and section 3(a), 4, 5(i) and 5(m) and 6 of POCSO. The defence lawyer has claimed a procedural oversight on the part of the Trial Court and requested for initiation of new proceedings. The issues raised will be dealt with in the next section.

Issues raised

Advocate Dr Yug Mohit Chaudhary, counsel on behalf of the accused-respondent, raised the following issues:

1. The Test Identification Parade (TIP) conducted of the prosecution witnesses was improper, and evidence relied upon by the prosecution as well as the Trial Court judgement is contradictory to the results of the same.

2. The altering of charges by Trial Court was done in a manner which put the accused at prejudice and therefore not in line with the provisions of section 216.

3. The prosecution story is not satisfactorily corroborated by the evidence that has been presented and hence the trial court judgement is not correct to pass a verdict on that basis. 

4. These issues have been sufficiently considered by the High Court while passing the judgement, especially with reference to the reverse onus clause in POCSO and would be elaborated upon in the next section.


1. The verdict passed by the two-judge bench ordered:Quashing and setting aside the trial court judgement;

2. Police remand for the accused owing to the nature of the crime which involves a presumption of guilt on his part;

3. Holding either denovo trial or proper conduct of judicial proceedings in the trial court from the stage just before the framing of charges.

4. The Court has given due consideration to the needs and problems that the accused has had and therefore extended leniency him so as to prevent the miscarriage of justice owing to procedural flaws in the conduct of proceedings by the lower rungs of the judiciary.

Personal Comments

The author would like to add that the principles of criminology and natural justice have been harmoniously construed by the Bombay HC in ordering re-investigation as well as re-trial. Even the accused has certain rights ascribed to him which cannot be overridden by any power whatsoever. Hence the instant judgement has been passed in furtherance of justice, equality, reasonableness and fairness for the accused.

(By – Abhigyan Tripathi)