Death penalty for rape and murder of five-year-old a reminder of the debate on capital punishment

A special judge in Ernakulam has termed the rape and murder of a five-year-old child a"rarest of the rare" cases and awarded death penalty to the convict.

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ON November 14, a special court in Ernakulam, Kerala, awarded death penalty to the accused Asafak Alam for the rape and murder of a five-year-old child.

Brief facts of the case

On July 28, the child victim was found missing. The next day, her body was found covered with plastic bags containing garbage at an abandoned spot in Aluva Market. Her body bore numerous grievous injuries.

After an investigation, the Aluva East police arrested Alam. Alam is a 28-year-old migrant worker from Bihar and was found in a highly intoxicated state when he was arrested. The family of the victim child are also migrant workers from Bihar.

During the investigation, it was found that Alam already had a case under Protection of Children from Sexual Offences (POCSO) Act, 2012 registered against him.

He was charged with 16 offences, including under Sections 366A (procuration of minor girl), 364 (kidnapping or abducting in order to murder), 367 (kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.), 328 (causing hurt by means of poison, etc., with the intent to commit an offence), 377 (unnatural offences), 201 (causing disappearance of evidence of offence, or giving false information to screen offender) and 297 (trespassing on burial places) of the Indian Penal Code and Section 5 (aggravated penetrative sexual assault) of the POCSO Act and Section 77 (penalty for giving intoxicating liquor or narcotic drugs or psychotropic substance to the child) of the Juvenile Justice Act (Care and Protection of Children) Act, 2015.

If a child victim is below twelve years of age, it constitutes an 'aggravated penetrative sexual assault'.

During the trial before special judge K. Soman, which began on October 4, the prosecution sought death penalty while Alam's counsel invoked leniency on account of his age and possibility of reformation.

The court found the case fit for the application of the 'rarest of the rare' doctrine and stated that the accused did not deserve any clemency.

Debate on death penalty

The 'rarest of the rare' doctrine was established in Bachan Singh versus State of Punjab (1982), which upheld the constitutionality of the death penalty.

In this case, the court said that special reasons must be given for the death penalty under Section 354(3) of the Code of Criminal Procedure, 1973.

This provision requires that the judge must establish that the alternative option of life imprisonment was unquestionably foreclosed. In absence of that, the court said that it must weigh the aggravating and mitigating circumstances.

Since Bachan Singh did not clarify what the doctrine of 'rarest of the rare' means, the Supreme Court subsequently in Macchi Singh versus State of Punjab (1983) clarified that the mitigating and aggravating circumstances must be balanced against each other. This the court termed as the "balance-sheet" approach.

However, in 2013, in Shankar Kisanrao Khade versus State of Maharashtra rejected the balance sheet approach. In its place, it propounded a triple-test as a standard of awarding the death penalty. 

These tests are the 'rarest of the rare' doctrine, 'the crime test' (aggravating circumstances) and 'the criminal test' (mitigating circumstances).

The court stated that first it must look at the existing aggravating circumstances. Once that evaluation is done, the court should look to see if there is "any" mitigating factor existing in favour of the accused person.

The difference between the balance-sheet approach and the triple-test approach is explained by 'Project 39A' this: "The crime test should be 100 percent satisfied and the criminal test should be 0 percent. Only if there are no mitigating factors in favour of the accused, the court applies the R-R test, that is, whether the case is the rarest of the rare."

Thus, whereas the balance-sheet approach sought to cancel out aggravating and mitigating factors against each other, the triple-test approach examines aggravating and mitigating factors separately and in succession.

Project 39 A is a criminal justice programme at the National Law University, Delhi. Using empirical research to re-examine practices and policies in the criminal justice system, Project 39A aims to trigger new conversations on legal aid, torture, forensics, mental health in prisons, and the death penalty.

According to Project 39A, death penalty trials are divided into two separate stages. After an accused is convicted of a death-eligible offence, the judge conducts a separate hearing on the question of sentence. 

At this stage, the convict must be given adequate opportunity to collect relevant material, lead evidence, and present arguments on why they do not deserve the death sentence. This requires presenting what are called 'mitigating circumstances'.

The Supreme Court in Ramnaresh and Others versus State of Chhattisgarh explained two principles to be considered while awarding the death penalty namely, the aggravating circumstances and mitigating circumstances.

Since the Shankar Kisanrao Khade judgment, the Supreme Court has consistently reiterated the importance of mitigating circumstances.

Last year, a Supreme Court Bench consisting of Justices U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi, in Manoj & Ors. versus State of Madhya Pradesh, issued procedural guidelines to ensure that lower courts consider mitigating circumstances of an accused person at the stage of sentencing.

Project 39A has stated that as per Manoj, the state must collect three documents on the convict. First is a psychological evaluation of the accused. Second, some information on the accused such as his socio-economic background. 

Lastly, a report of the probation officer to assess the conduct of the convict during the time he spent in jail.

Commenting on this case, mitigation investigator C.P. Shruthi told The Leaflet that the determination of mitigation circumstances is required in all cases where there is a possibility of awarding the death penalty to a convict. 

Nothing changes even if it is a POCSO Act case, she told The Leaflet.

In 2019, the POCSO Act was amended to add stringent punishments including death penalty for the offence of aggravated penetrative sexual assault.

Bharti Ali, child rights activist and human rights defender speaking on the 2019 POCSO Act amendment said that it is not the stringency of the law but the certainty of conviction that matters. 

She added that the death penalty is not a solution if the aim of the criminal justice system is reformation.