“The true character of a society is revealed in how it treats its children.” — Nelson Mandela.
The Ernakulam POCSO Court judge K Soman referred to this quote while imposing the death penalty in Kerala’s notorious Aluva murder case on, coincidentally, Children’s Day, 14 November.
The judge decided the case against the accused, Asfaq Alam, is “rarest of the rare”.
Alam, a migrant labourer from Bihar working in Kerala, kidnapped the girl, also a migrant, from her family’s rented shack in a village, took her to a secluded spot in Aluva, forced her to drink alcohol, then raped and strangulated her even as he caused injuries to her body.
Alam was caught after CCTV footage showed him with the girl.
The 197-page judgement explains why it is the rarest of rare cases and why the court finds that the accused is beyond reformation.
Judge Soman quotes a previous judgement to say: “Rape is one of the most depraved acts. The iniquitous flagitious act becomes abominable when the victim is a child. The diabolic act reaches the lowest level of humanity when the rape is followed by brutal murder.”
Drawing from this description, the judgement explains why the accused should be treated with a “heavy hand”: “An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging ‘potential criminals’. The society can no longer endure under such serious threats.”
The call for a stringent sentence is based on the logic that “if undue leniency is shown to the respondent in the facts of the case, it will undermine the common man’s confidence in the justice delivery system”.
‘No hint of fear, anxiety or irritation’
Judge Soman, reflecting on the state of mind of Alam, recalled that the probation officer who interviewed him reported that “there was no hint of fear, anxiety or irritation or he was not emotional while answering questions”.
While checking Alam’s past “regarding the possibility of any chance of reformation or rehabilitation”, the court found that he was accused of sexually molesting a girl in Delhi in 2018 and had subsequently absconded.
The Delhi Police were of the view that “there is no chance or possibility of getting the accused reformed”.
Judge Soman stated that the Aluva victim’s parents lived “forever in a state of guilt” and are “afraid of sending their children outside the house considering the experience of their second daughter in this case”.
Why is this case considered the rarest of the rare?
The judge quotes the Supreme Court as first seeking answers to two questions:
- Is there something uncommon about the crime which renders a sentence of imprisonment for life inadequate and calls for a death sentence?
- Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?
Judge Soman quotes the prosecutor in the Aluva case saying it is the rarest of rare cases for the following reasons:
- The paedophilic mindset of the accused.
- If he is permitted to be free at any point in time, it is sure that he would commit much graver offences and may become a threat to society, especially minor girl children.
- His premeditated and purposeful act violated the trust of the innocent child.
- He kept cool after the incident because he returned as if nothing happened.
To arrive at the conclusion that it is a rarest of rare cases, Judge Soman referred to the Supreme Court stating that two issues must be considered:
- When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation in the community.
- When the murder is committed for a motive which evinces total depravity and meanness, misusing the position of trust and when the victim of the murder is an innocent child.
Judge Soman said: “This dictum also applies to the facts of this case.”