Dr RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION:
2022-2023

INDIAN PENAL CODE – II

PROJECT ON:

CASE ANALYSIS:

STATE OF MAHARASHTRA

V.

PRAKASH

SUBMITTED TO

DR. MALAY PANDEY

ASSISTANT PROFESSOR (LAW)

SUBMITTED BY

PRACHI PANDEY

ENROLMENT NO:- 200101171

SEC B
 ACKNOWLEDGEMENT

I want to express my deep gratitude to my educator Dr. Malay Pandey who gave me the
brilliant chance to finalize this case analysis of ; "State of Maharashtra V. Prakash". All through
the exploration period, I have been guided by my educator at whatever point I confronted any
obstacles or was in a state of daze not having the capacity to resolve the intricacies of the
subject.

I want to thank my University, Dr. Ram Manohar Lohiya National Law University, Lucknow,
for giving me the opportunity to be a part of a novel exploration turned educational program
which without a doubt helps the comprehension of the subject.

I, likewise, want to thank my guardians, guides and well-wishers who have been a consistent
sunder pin and have sufficient energy and again looked into my work and have given their
experiences on the matter.

- PRACHI PANDEY
LIST OF ABBREVIATION

1. IPC - Indian Penal Code

2. Sec. - Section
3. V. - versus
4. SC - Supreme Court
5. HC - High Court
6. AIR - All India Reporter
7. SCC - Supreme Court Cases
8. Cr.LJ - Criminal Law Journal
9. Punj - Punjab High Court

LIST OF CASES

1. Bijoy Kumar Mohapatra v. State of Orissa 1982 Cri LJ 2162.

2. Rao Harnarain Singh v. State AIR 1958 Punjab 123.
3. State of HP v. Mango Ram 7 SCC 2007 224.
4. Uday v. State of Karnataka 2003 Cr. LJ 1539 (SC).
5. Tukaram v. State of Maharashtra, AIR 1979 SC 185.
 INTRODUCTION

Rape is violation of Human rights. It is ultimate violation of self. It destroys a woman not just
physically but also mentally. It is not just an offence against a human who happens to be a
woman; it is offence against whole humanity. It is violation of right to life under Article 21 of
the constitution. Section 375 of IPC defines this offence of rape and the same is punished in
section 376.

Supreme Court is called the ‘guardian of constitution’ and SC has been quite active in
protection of fundamental rights of citizens. And this is the reason why that it is the most
respected organ of state among general masses. However, in case of Tukaram v. State of
Maharashtra1 (popularly known as Mathura case) SC completely failed to appreciate the
ground level realities of life of the common man of India. In this case an orphan tribal girl of
15-16 age was raped in a police station by a policeman. The 3- judge bench unanimously held
that the girl was a consenting party to the act because she did not vehemently oppose to the act;
there were no injury marks on her body. SC failed to appreciate that she was a tribal girl who
are too afraid to even raise the tone of their voices in front of police man. How do you expect
such girl to ‘vehemently oppose’ the assault on her body when for her the policeman is a
symbol of absolute power having authority to do anything to her and her loved ones! And how
does absence of any substantial injury marks prove consent to the act?

In the stark opposite to this case, in the case of State of Maharashtra v. Prakash where court
took the ground realities of victim into account and observed that for a poor, daily labourer
person policeman represents absolute authority. And when the policeman threatens that her
husband will be put behind bars then her surrendering of herself does not prove her consent.
Further court observed that absence of injuries on body of victim does not prove her consent.
The court in this case has very correctly pointed out that consent for the purpose of section 375
requires voluntary participation only after the exercise of intelligence based on knowledge of
significance and moral quality of the act after having fully exercised the choice between
resistance and assent.

This principle as repeated in this case is one of the basic tenants for proving offence of rape
under IPC. Time and again the courts have repeated (even in recent times) that consent is
different from submission. The former is voluntary, deliberative and conscious act denoting

1
AIR 1979 SC 185.
active participation of women in the sexual intercourse whereas the latter is under fear of hurt
or death or terror, and hence is involuntary. Every consent might be submission, but every
submission is not consent.2

STATE OF MAHARASHTRA V. PRAKASH

AIR 1992 SC 1275

Criminal Appeal No. 459 of 1983 (From: Bombay)

Date of Judgment- 24-03-1992

Appellant- State of Maharashtra

Respondents- Prakash and Another

FACTUAL MATRIX

The victim woman was originally a resident of Pathrot village where her parents used to reside.
She was married to a resident of village Dahegaon. Every year a village fair called 'Dwarkecha
Baill' was held on a particular day at Pathrot village. Both had come to Pathrot village to attend
the fair. They were staying in the house of woman’s parents. The first respondent Prakash was
a police constable working at headquarters, Amravati. He was deputed to village Pathrot on
6th September, 1978 for ‘bandobast’ duty at the time of Ganapati festival. Second respondent,
Sudhakar was a businessman of the village. An idol of Ganapati was installed in the courtyard
of second respondent, Sudhakar.

It is alleged that on the night intervening 9/10th September, 1978, the second respondent went
to the house of woman’s parents at about 2.00 A.M. and called out her husband. Her husband
was taken to the house of Sudhakar. After a little while, the husband returned but was again
called out by Sudhakar saying that he was being called by the first respondent, police constable,
Prakash. Her husband again went to the house of Sudhakar. Prakash caned him alleging that he
was going to destroy the idol of Ganapati. The respondents asked both the woman and husband

2
State of HP v. Mango Ram 7 SCC 2007 224, Uday v. State of Karnataka 2003 Cr. LJ 1539 (SC)
to accompany them to the house of Sudhakar where the victim was asked to sign on certain
papers under a threat that her husband would be placed in custody in case she does not sign the
papers. Prakash then took her inside the house and committed the offence of rape upon her.
Thereafter, Sudhakar went inside and he too committed the said offence upon her. They
threatened both of them not to report the matter to the police. Afraid of them, both went back
to the house of victim’s parents and spent the rest of the night there. On the morning of 10th
September, her husband met another constable, Kailashpuri and told him of what happened on
the previous night. Kailashpuri asked him to report to the police station. Accordingly, at 11.30
A.M. both the victim and her husband went to the police Station Pathrot and gave the first
information. Sub-Inspector registered the offence, inspected the spot, seized a carpet and some
other articles from the scene of offence including the saree and blouse of the victim and sent
her for medical examination. On receipt of the medical report and the report of the chemical
analyser, a charge-sheet was filed against both the respondents. They were committed by the
learned Magistrate to Sessions Court for trial.

At Trial Court,

Seven witnesses were examined by the prosecution. The accused denied the offence altogether
claiming that they have been falsely implicated. The learned Sessions Judge found them guilty
and convicted them.

At High Court,

The matter went in appeal to the Bombay High Court. The learned Single Judge of the Bombay
High Court, however, took a different view. The learned Judge held on the basis of the first
information that "there were no threats given to the victim so as to make her surrender her
body to the accused. It is also clear that the husband had left the place and yet she went inside
the room of accused Sudhakar. It is apparent from the report that she did not shout till entering
the room, even after the door was closed by constable Prakash. She also did not shout till the
police constable had removed the uniform and underwear from his person. For the first time,
she shouted after the appellant was naked. She, therefore, did not shout even when accused No.
1 completed the sexual intercourse and went out and Sudhakar came in and had sexual
intercourse with her." The learned Judge then compared the contents of her report with her oral
testimony in court and found certain contradictions between them. On an examination of the
evidence the learned Judge concluded that the woman had voluntarily went to the house of
second respondent and that she was willing partner in the act of sexual intercourse. He referred
to the absence of marks of violence upon her body and concluded therefrom that no force was
used upon her

Appeal was preferred by the State of Maharashtra against the judgment of the learned Single
Judge of the Bombay High Court to the Supreme Court.

ISSUES INVOLVED

Only major question before the Supreme Court was whether the woman had given consent to
the sexual intercourse or not?

LAW INVOLVED IN CASE

They were charged under sec. 376 IPC.

Section 342, IPC- Punishment for wrongful confinement.—whoever wrongfully confines any
person shall be punished with imprisonment of either description for a term which may extend
to one year, or with fine which may extend to one thousand rupees, or with both. (Though this
section is nowhere in question).

Section 34, IPC- Acts done by several persons in furtherance of common intention.—When a
criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone. (Though
this section is nowhere in question).

Section 375- Rape.—A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the
six following descriptions:—

Firstly, Against her will.

Secondly, Without her consent.
Thirdly, With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
Fourthly, With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself
to be lawfully married.
Fifthly, With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.

DECISION OF THE COURT

The Supreme Court was of the opinion that the learned Single Judge of HC has thoroughly
erred in appreciation of the evidence of victim and her husband. In the opinion of the SC, the
theory of victim being a willing party to sexual intercourse is totally misplaced in the
circumstances of the case. Following was the reasoning given by the court-

1. Court held that for the offence of rape, it is not necessary that there should be actual use of
force. A threat of use of force is sufficient under "thirdly" in the definition of rape in Section
375 of I.P.C. In this case the allegations were levelled against the husband of the victim that
he wanted to desecrate and destroy the idol of Ganapati and for that he would be placed in
the police remand. Under this threat and duress, victim was made to surrender herself to
both the accused. The police constable was in uniform and on bandobast duty. By show of
his authority, he forced both into total abject surrender. It is, therefore, not a case of the
victim being a willing party to sexual intercourse. It is a case where she has surrendered
herself involuntarily, under duress and threat held out by the first accused. It is a case where
victim was deprived of her will by show of authority and by the beating administered to her
husband accompanied by threat of putting him in police remand, where, as the common
belief of rustic villagers goes, they would be subjected to 'third degree methods'.

Court further observed that even after the act they were threatened not to report to the police.
This explains their silence for a few hours. Only when advised victim went to report to the
police, did they pick up the courage to go and report to the police station. This shows how
threatened they were.

2. Court further observed that it is not the case where the victim agreed to the said intercourse
either out of love or for money. The only other explanation that remains is that she was
coerced into the act. She was not a prostitute. Even a prostitute has to be paid to make her
 agree to such intercourse. It is no one's case either that the victim is a prostitute or that she
was paid any money by the accused. In all the circumstances of this case, the minor
contradictions between -her oral testimony and the report are of little consequence.
3. The respondents-accused had denied the charge totally. Their only plea was that they have
been falsely implicated. Nowhere the respondents had given proof as to who implicated
them and why. It is clear that both victim and her husband had no animus or motive against
the accused. Nor is it suggested that they were being used by someone else to implicate the
respondents falsely. Hence court held that mere allegation of false implication has no
significance. (This aspect is only a minor corroborating aspect court observed).
4. The learned Counsel for the accused repeatedly pointed out the absence of marks of
violence upon the body of the victim and also her conduct subsequent to the incident. The
Counsel argued that if her story is true, she would not have gone back to her house, slept
there as usual, get up in the morning, attend to her normal duties, and search for employment
as usual. She would have immediately rushed to the police station and reported the matter.
However the court did not accept this argument stating that the argument ignores and fails
to take into consideration the ground realities. Victim and her husband were poor rustic
villagers earning their livelihood by daily labour. They were threatened by the police
constable, who was in uniform on bandobast duty, of having attempted to defile the
Ganapati idol and threatened with police remand and all that follows. This situation may
perhaps have been different if they were educated of at least reasonably well connected
persons. To these poor rustic helpless villagers, the police constable represents absolute
authority. They had no option but to submit to his will.

FINAL JUDGMENT

The High Court judgment was set aside and that of Trial Court restored. Both respondents were
held guilty.

Further court held that though the offence had taken place in the year 1978 and that they were
acquitted by the High Court as far back as August, 1981 and the acquittal was reversed after a
lapse of more than 10 years but looking at the nature of the offence and the circumstances in
which it was perpetrated, that court was of the opinion that the respondents deserve no mercy.
They should suffer for their deed. And hence the sentence awarded by the Trial Court was
restored. They had to surrender to their bail bonds to undergo the sentence of imprisonment.

PRINCIPLE LAID DOWN

There was no as such laying down of a new principle. Court repeated what has been said in
various other cases that-

● absence of marks of violence on body of victim cannot be directly conclude that woman
was consenting party to the act.
● There is difference between a helpless surrender and a consent. When the consent is
obtained by putting her or any of persons in whom she is interested into fear of death
or hurt, then the same cannot be called consent.

CASE ANALYSIS

Only major question before the Supreme Court was whether the woman had given consent to
the sexual intercourse or not?

According to English law a person is said to have consented if he or she agrees by choice
and has the freedom and capacity to make choice.3 Section 90 of IPC clearly states that
consent under fear of injury is no consent, and it reads as follows-

Consent known to be given under fear or misconception.—A consent is not such a consent as
it intended by any section of this Code, if the consent is given by a person under fear of injury,
or under a misconception of fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such fear or misconception;

Even before coming of the Amendment of 1983 in the criminal law of the country, there are
various judgements where court have said that consent must be voluntary, a mere inevitable

3
Sexual Offences Act 2003, Section- 74.
compulsion, quiescence, non-resistance or passive giving in when volitional faculty is either
crowded by fear or vitiated by duress, cannot be deemed to be consent.4

Court has very correctly observed the difference between a passive submission and a consent.
Mere allowing policeman and the accused number-2 to have their way with her does not
necessarily prove her consent. In a country like India where the village masses are illiterate,
unaware of their rights, the ‘daroga sahab’ is a supreme authority who can do from anything to
everything with them- this case had very rightly observed the fact and applied the law as per
ground realities.

The victim and her husband were poor rustic helpless villagers, the police constable represents
absolute authority. The police constable was in uniform and on bandobast duty. By show of his
authority, he forced both into total abject surrender. It is, therefore, not a case of the victim
being a willing party to sexual intercourse. It is a case where she has surrendered herself
involuntarily, under duress and threat held out by the first accused. There were allegations
levelled against the husband of the victim that he wanted to desecrate and destroy the idol of
Ganapati and constable threatened that he would be placed in the police remand for the same.
For a poor, simple woman this would be a grave situation where police is asking to take away
her husband. And under such situation what choice she had but to surrender herself to lust of
man so as to protect her husband.

Further in my opinion court very correctly rejected the argument of the accused which he
repeated again and again and again that there was no marks of injury on the body of woman.
Absence of injury is not conclusive one way or the other. Absence of visible injuries on the
victim does not always warrant the presumption of consent on the part of woman. There might
be injuries on private parts even in case of voluntary sexual intercourse. Medical science has
pointed out if a woman is subjected to forced sexual intercourse during her menstrual period
there might not be injuries on her private parts. Hence it cannot be said that there must
necessarily be injury on the body of the victim if she had resisted. One might fall completely
silent in resistance.

4
Bijoy Kumar Mohpatra v. State of Orissa 1982 Cri LJ 2162, Rao Harnarain Singh v. State AIR 1958 Punj
123.
CONCLUSION

The court in this case has very correctly pointed out that consent for the purpose of section 375
requires voluntary participation only after the exercise of intelligence based on knowledge of
significance and moral quality of the act after having fully exercised the choice between
resistance and assent.

This principle is one of the basic tenants for proving offence of rape under IPC. Time and again
the courts has repeated (even in recent times) that consent is different from submission. The
former is voluntary, deliberative and conscious act denoting active participation of women in
the sexual intercourse whereas the latter is under fear of hurt or death or terror, and hence is
involuntary. Every consent might be submission, but every submission is not consent.5

Rape is violation of Human rights. It is ultimate violation of self. It destroys a woman not just
physically but also mentally. It is not just an offence against a human who happens to be a
woman, it is offence against whole humanity. It is result of everyday sexism of society
including the authorities. Such progressive judgments work positively for protection of woman
security and dignity.

5
State of HP v. Mango Ram 7 SCC 2007 224, Uday v. State of Karnataka 2003 Cr. LJ 1539 (SC)
References-

1. B.M. Gandhi, Indian Penal Code (2nd edn., Eastern Book Company 2006)
2. Prof. S.N.Mishra, Indian Penal Code (15th edn.,Central law Publication 2007)
3. Mahesh Tondon and Rajesh Tondon, Indian Penal Code (24th edn., Allahbad Law
Agency 2008)
4. KI Vibhute, PSA Pillai’s Criminal Law (10th edn., Lexix Nexis Butterowrths 2008)
5. RatanLal and DhirajLal, The Indian Penal Code (32nd enlarged edn., Lexis Nexis
Butterworths 2011)
6. Prof. T. Bhattacharya, Indian Penal Code (4th edn., Central Law Agency 2004)
7. Manohar and Chitaley, Indian Penal Code (Volume 4, 4th edn., All Indian Reporter
2006)
8. S.K. Sarkaria, R. A. Nelson’s Indian Penal Code (Volume 3, 9th edn., Lexis Nexis
Butterworths 2003)
9. K.D. Gaur, Criminal Law : Cases and Materials (7th edn., Lexis Nexis 2013)