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Saturday, September 14, 2024

Protection of Children from Sexual Offences Act, 2012 – s.6 – Penal Code, 1860 – s.376(2)(n) – Conviction under – The accused, twenty-five years old, enticed victim, fourteen year old, to leave her house – A female child was born to the victim – Admittedly, the accused is the biological father of the child – The Special Judge appointed under the POCSO Act, convicted the accused for the offences punishable u/s. 6 of the POCSO Act and under s.363, s.366, under clause (n) of sub-section (2) and sub-section (3) of s.376 of the IPC – By the impugned judgment, the High Court held that the offences punishable u/s. 363 and s.366 of the IPC were not made out, and also set aside the conviction of the accused for the offences punishable u/s. 6 of the POCSO Act and sub-sections 2(n) and (3) of s.376 of the IPC – Correctness: Held: In this case, there is no dispute about the fact that the accused committed penetrative sexual assault on the victim – As the victim became pregnant as a consequence of the sexual assault, in view of sub-clause (ii) of clause (j) of Section 5 of the POCSO Act, it became a case of aggravated penetrative sexual assault – On facts, there cannot be any dispute that the commission of the offence punishable under Section 6 of the POCSO Act by the accused was duly proved – Under Section 375 of the IPC, having penetrative intercourse with a victim who is under 18 years of age with or without her consent becomes an offence of rape – As the offence was repeatedly committed on the victim, clause (n) of sub-section (2) of Section 376 of the IPC is attracted – Therefore, the accused was liable to be punished in accordance with Section 376(2)(n) of the IPC – As far as offences u/ss.363, 366 are concerned, in the instant case, there is no evidence to prove that the accused took the victim out of the keeping of the lawful guardian – Similarly, there is no evidence of enticing the victim – The mother of the victim deposed that the victim left her house on her own – That is also the version of the victim – Hence, the prosecution did not establish kidnapping – The offences punishable under Sections 363 and 366 of the IPC are not made out – The findings and observations in the impugned judgment of the High Court, except the finding on the applicability of Sections 363 and 366 of the IPC, cannot be sustained – Thus, the impugned judgment of the High Court is set aside and the judgment of the Special Court is restored to the extent of the conviction of the accused for the offences punishable under sub-sections (2)(n) and (3) of Section 376 of the IPC and Section 6 of the POCSO Act – Accordingly, the accused stands convicted – The acquittal of the accused for the offences punishable under Sections 363 and 366 of the IPC is confirmed. [Paras 10, 11, 12, 44(a)]

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Constitution of the United States – Evolution of Doctrine of Prospective Overruling – Objectives and Purpose – Factors to be considered for its applicability – Discussed: Held: The doctrine of prospective overruling is applied when a constitutional court overrules a well-established precedent by declaring a new rule but limits its application to future situations – The underlying objective is to avert injustice or hardships, per Great Northern Railway Co. v. Sunburst Oil and Refining Co., 287 US 358 (1932) – Relied on Linkletter v. Walker, 381 US 618 (1965) to hold that the doctrine was applied by the courts in the US on the basis that the US Constitution “neither prohibits nor requires retroactive effect.” – US Supreme Court identified three separate factors to be considered while deciding the applicability of prospective overruling in Chevron Oil Company v. Huson 404 US 97 (1971): (i) the decision to be applied prospectively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not foreshadowed; (ii) the court must weigh the merits and demerits in each case by looking to the prior history of the rule in question,its purpose and effect, and whether retrospective operation will further or retard the operation of the rule; and (iii) whether the application of nonretroactivity avoids substantial inequitable results, injustice or hardships. [Paras 5, 6]

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