By – Sonali Singh

In the Supreme Court of India

Name of the case	Gorakh Daji Ghagde v the state of Maharashtra
Citation	1980 criLJ1380
Date of judgement	6 March 1980
Appellant	Kusum (daughter)
Respondent	Gorakh Daji Ghagde (father)
Bench of judges	Justice Kamble  justice Parekh
Statutes :	Section 366, 375 and 376 of IPC, ARTICLE 2 of Indian Constitution 1949, POCSO act 2012

ABSTRACT

The Social problem of kid statutory offence has been happening for hundreds of years but it has very recently been acknowledged as a controversy in India. Therefore, a special law that’s Protection of kids against Sexual Offences (POCSO) 2012 has been enacted by the Parliament which criminalizes a range of acts including child rape, molestation, and exploitation for pornography etc. A child sex offence is done by touching genital organs, taking obscene photos, showing pornography pictures or other such material to the child etc. In India, a regulatory offence against girl children has added fuel to the fireplace and it had made its place in one amongst the recent topics for debate and research in India. this article, therefore, discusses the necessity for enactment of POCSO Law, its provisions briefly and more importantly the judicial approach towards child sex crime cases pre and post POCSO Law in India and its efficacy.

INTRODUCTION

This is a prosecution case where a father has been accused of raping his own daughter who is 13 yrs. of age.

The Protection of Children from Sexual Offences (POCSO) Act, 2012 deals with sexual offences against persons below 18 years of age, who are deemed as children. The Act for the first time defines “penetrative sexual assault”, “sexual assault” and “sexual harassment”. The offence is considered graver if it is committed by a police officer, public servant, any member of the staff at a remand home, protection or observation home, jail, hospital, or educational institution, or by a member of the armed or security forces. The present Act has also provided for use of children for pornographic purposes and punishment, therefore. The Act has imposed an obligation on personnel of media, hotel, lodge or hospital or club or studio, or photographic facilities to report any such pornographic, sexually related, or obscene to Special Juvenile Police Unit or the local police.

BACKGROUND OF THE CASE

The very inadequacy of the Indian Penal Code and absence of any stringent legislation for effectively addressing and tackling heinous crimes such as sexual exploitation and sexual abuse of children birthed the commencement of the POCSO ACT as the very intention of Government establishments was to protect the children from offences of sexual assault, sexual harassment and pornography and to facilitate adequate legal machinery by establishing special courts for trial of such offences and matters incidental connected with child sexual abuse crimes. This was in due compliance with Article 15 of the Constitution of India which mandates the states to protect the children of this nation and instead of United Nations Conventions on the Rights of the Child which prescribes the set of standards to be followed by state parties in securing the best interest of the child.

FACT OF THE CASE

• The accused here Gorakh Daji was from a village named Tamber Wadei which is in Osmanabad district. After his marriage he is blessed with a girl child named Kusum on 30^th July 1962, but as Kusum turned 1 year old her mother passed away and since then Kusum was living with her grandparents.
• After his wife death the accused moved to Satara and he remarried and has two children with the second wife. As Kusum turned 10 yrs. old, her grandparents moved to Satara and handed over Kusum to her father and stepmother, later the accused along with his wife, Kusum and children with second wife, shifted to Pune and residing in Prabhav society, which is in Gultekde, PUNE.

On 5^th November 1975, after having dinner with her family she moved to her bedroom, and her stepmother was busy with her work in the kitchen. Her father came and held his hand, while all the doors are closed, he took Kusum to the sitting room and made her lie on the bed and then removed her underwear and inserted his penis into her vagina, the time he was committing this, he threatened Kusum by saying that he will kill her if she tries to shout or make noise. He also bit Kusum on her breasts and cheeks, as Kusum was in great pain, and she told her father to let her go

• to washroom. As the accused released Kusum she ran to her balcony which was attached to her bedroom.
• She jumped from the balcony and directly ran to police chowki which in in Maharshi Nagar. There she told her story to PSI Ghogare and the occurrence report was then sent to sawar gate police station for registering a crime.
• PSI Ghogare with his head constable Bhosale went to the accused residence, there he found that sitting room was spread and noticed that nothing has been disturbed from the crime scene. On 6^th of November 1975, at 1:30 am the accused was arrested and brought to the police chowki.
• The investigation was handed over to inspector Murgod. He again went to the crime scene and found that spot Panchama, he took charge of the rug lying in the sitting room as also the underwear.
• The statement of other witness was also recorded during the investigation and the charges taken by the police were sent to the chemical analyser. on 28^th November 1975, another chargesheet was filed in the court of JMFC after the investigation was completed.
• Accused was not found guilty at the time of trial.

ISSUES RAISED

1. Question arises that was the sexual relation between Kusum, and the accused was falling under the circumstances of any of the five clauses mentioned in SEC375 of the IPC?
2. What is the significance that Kusum’s attention has not been drawn this contradiction, nor she has been given any offer for explanation?
3. Another issue raised that Kusum was habituated of sexual intercourse as the old tear of hymen was present during her examination in the hospital and there was no blood and semen present, and Kusum was making a false complain against her father so the evidence of the witness should be discarded.
4. As per the Kusum’s evidence that she was a victim pf a rape, must be rejected as there was no sperm present as told by the doctor.

  ARGUMMENTS OF THE APPELANT

• While she was lying on her bed, her father came to her room and hold her arm and took to the sitting room and put her on the rug lying there and untied the knot of her underwear and inserted his penis into her vagina and he also threatened her with assaults if she makes any noise.

As she got a release from her father, she jumped out of her balcony rushed to the police station, then after she narrated her story to the police and then she was sent to the hospital to examine. She got ill and she remained in the hospital for 4 days, thereafter she got discharged.

• It was also argued that the incident must have took place in between 9 to 12 pm on that night, and her mother would have come to sleep to her bedroom after completing her kitchen work.
• The appellant told that in past also her father threatened her and her mother twice or thrice, that is why she did not blurt about the incident to anyone.
• It was also argued that as her father was subjecting Kusum to crime, may her stepmother be incapable of entering into the matter or preventing the crime from happening.
• Kusum did not make any noise because of the fear of her father as earlier she has also been threatened and beaten for not giving water to him.

ARGUMENTS OF THE RESPONDENT

• On that night he has invited two pf his friends for dinner and told his wife to prepare food and, told Kusum to chop the onion. As he got to know that his invited friends will not be able to join them for dinner and they wanted the accused to send some curry two them and accordingly he sent the curry to the invited friends.
• The accused became angry with Kusum as he did not find the chopped onions on the table, and later he came to know that Kusum has left the house and currently is in police chowki when the police came to his residence.
• The accused asked the police to show his daughter nut to no avail.
• He also mentioned that changa Pehelwan and others deal with the liquor, and changa was a Matka king as he also runs Matka.
• He later told that there was a business deal between him and changa, that it was a changas driver who took Kusum to police station and there she lodged a false complain.
• He also argued that changa and his people pressurised on police and roped him in a false complain.
• Shri Patil who was appearing for the accused questioned that Kusum has been narrating and trying to improve her story by changing the statement, so her evidence must be discharged now.
• Shri Patil also argued that if, Kusum’s story is true, why did not she run to her stepmother instead of leaving house and rushing to the hospital.
• Later the respondent argued that, why Kusum did not seek for help and her cries establish that nothing like such incident had taken place.
• The respondent argued on the evidence of Dr. Deshpande who examined Kusum, that she never stated about any pain, no blood and semen were present.

RELATED PROVISIONS

Sec 366 of IPC

Whoever kidnaps or abducts any woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or so that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 375 of IPC

Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.”

Sec 376 of IPC

Whoever, except in the cases provided for by sub-section (2), commits rape 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 may extend to ten years and shall also be liable to fine unless the women raped is 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 with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than seven years.

Article 2 of the Indian constitution

 Article 2 states that the parliament may, by law, admit new states into the Union of India or establish new states on terms and conditions it deems fit. For eg. the addition of the State of Sikkim by the 35th (1974) and 36th (1975) constitutional amendments.

POCSO ACT

The main objective of the Protection of Children from Sexual Offences Act, 2012 is “to protect children from offences of sexual assault, sexual harassment, and pornography and provide for the establishment of Special Courts for the trial of such offences and matters connected therewith or incidental thereto”.

JUDGEMENT

The prosecution has established that the offences committed by the accused are one under sec.376 of the IPC and find him guilty under this section and confirm the conviction. The Bombay high court held that there must be penetration only the seminal emission is not necessary to establish rape.

Later it was argued that the accused has already undergone a sentence for four years, and has also paid a fine of 1000, so it must be held sufficient.

He was charged with having committed an offence under sec 366 and 377 of IPC. He pleaded not guilty and came to be tried.

 By the judgement dated on 20^th April 1976, the learned additional sessions judge, Pune, convicted the accused under sec 376 of IPC and sentenced him to suffer R.I. for 7 yrs. and pay a fine of rupees 1000 in default to suffer further R.I. for six months. Being aggrieved by the said order and judgment, the appellant has preferred this appeal.

It was found that the accused is guilty under section 376 of IPC, the sentence and conviction were confirmed, thus the appeal must fail and hence the appeal dismissed. 

CONCLUSION

It is often concluded that the crime of kid regulatory offence could be a very significant issue because it adversely affects the entire growth and development of kids and leaves mental agony forever. Though the POCSO law is welcoming development to curb and fight this menace, however, any socio-legal problem cannot alone be curtailed by passing suitable legislation. While the criminal procedure code was employed in this case, it has been patiently explained how POCSO must are implemented. While even the Joseph Raz theory of jurisprudence indicates towards application of special laws, this case was fit put the accused behind bars for five years than for 1 year that he has been sent for. except for the sake of kids who are the next-gen laws for crimes against children must evolve and must be much harsher than what they are at the present whereby any harm is done to a toddler must be met with a minimum of 10 years rigorous imprisonment and in cases of rape incarceration or the capital punishment as administered within the Nirbhaya case. this can make sure that before touching a baby inappropriately a plan will cross the mind of the individual a minimum of 100 times on the repercussions of the said act. It is equally important that oldsters and other close members of the family shall repose trust amongst their children once they are reporting the crimes like this and console them with much-needed support, care, and love so that they have to not develop feelings of fear and hatred. Parents shall take quick steps to stop this abuse. They shall file appropriate action against abusers and must not be petrified of what people will say. Parents must understand that if they develop friendly relations with their children, they will share everything with them including the incidences like this. Besides this, sex education must be imparted amongst the youngsters in the least the places be it reception, school, or college so that their curiosity to grasp about sexual aspects knowing must be satisfied rightfully otherwise it should be seen that when proper education about their body parts is not given, they will tend to bask in dangerous ways of getting information. To curb this. it is vital to impart e sex education at right time and thru the right source which can eventually help to develop a higher and safer society.