'Threat To Girl Children Including Those Yet To Be Born': Why Kerala Court Awarded Death Penalty To Convict For Rape-Murder Of 5 Year Old

"Manner in which a five year old girl was abducted, intoxicated with liquor, raped repeatedly, done carnal intercourse against the order of the nature, murdered the child and the method adopted by the accused for defacing and concealing the dead body revealed the traits of outrageous criminality in the behaviour of the accused and his premeditated action," a Kerala Court observed on Tuesday, while awarding death penalty to 28-year old Asfaq Alam, who had been convicted for the brutal rape and murder of a minor girl at Aluva in July this year. 

The Ernakulam POCSO Court Judge K. Soman, was of the considered view that the factual circumstances of the case clearly revealed Alam's 'brutal mindset of the highest order'. 

"The cruel tendency of the accused and his total disregard to human life is writ large from the manner of attack and the nature of injuries caused to the dead body revealed from ...post­mortem report. This incident has created tremble feeling in the society and upset the collective conscience of the community. This incident is being discussed in Kerala as they are emotionally disturbed treating this incident as an example of threat to the children who are deprived of their chance to play and spend their precious childhood even in the surroundings of their house. As argued by the learned Special Public Prosecutor if the accused is permitted to be a part of the society it would be a threat to the girl children, including those who are yet to born," the Judge said, while pronouncing the sentence on the occasion of Children's Day. 

The child, who belonged to a migrant labour family from Bihar, had gone missing on July 28, 2023. She was strangulated and found dumped into a waste yard in Aluva market. The police arrested accused Alam, also a migrant labourer hailing from Bihar, in a highly inebriated condition on the same day.

Alam was charged with the offences punishable under Sections 302 (punishment for murder), 376 (2)(j) (rape on woman incapable of giving consent), 377 (unnatural offences), 328 (hurt by means of poison), 364 (kidnapping or abducting in order to murder), 366A (procuration of minor girl), 367 (kidnapping or abduction to subject person to grievous hurt, slavery, etc), 297 (indignity to human corpus), and 201 (disappearance of evidence) of IPC, and Section 5 of the POCSO Act (Aggravated Penetrative Sexual Assault). 

The Court relied upon DNA evidence, post mortem report, and circumstantial evidence, while convicting Alam for all the offences charged against him. 

It found that the nature of injury caused to the private parts of the victim, presence of liquor inside her body, and her strangulation to death were sufficient to conclude the guilt of the accused, and added that the prosecution had established the same beyond reasonable doubt. 

The Court further relied upon the following aspects, while finding the case to fall under the 'rarest of rare' category:

i. That the offences were not committed by the accused under any extreme mental or emotional disturbance;

ii. That the accused did not deserve the benefit of his age, considering the cruel acts of multiple rape after administering alcohol to a five year old child, her strangulation to death and burial of her body in garbage; 

iii. That the accused had also committed sexual assault against a 10 year old girl in 2018 in Delhi, and thereafter fled to Kerala where he committed an even graver offence, thus indicating that he may prove a threat to the society, especially minor girl child, if left free; 

iv. That the accused committed the offence in a premeditated and puposeful method, by violating the trust of an innocent child; 

v. That the pre-planned, calculated and cold-blooded murder of the minor girl could be regarded as an aggravated act. 

"Considering the above facts and circumstances, I am of the view that this Court will be failing in its duty if the maximum punishment prescribed under the law is not imposed on the accused...On an over all view of all the circumstances in this case and on weighing the aggravating circumstances and in the absence of any mitigating circumstances I have no hesitation to hold that this case is one among the ‘rarest of rare’ cases in which the lesser alternative is unquestionably foreclosed and special reasons do exist in this case within the meaning of Sec.354(3) Cr.P.C to award death penalty to the accused for the offence u/s.302 of Indian Penal Code. Similarly, for the reasons stated earlier the act of the accused by committing multiple rape on the victim girl aged five years also has to be considered as serious and grave offences requiring adequate sentence proportionate to its gravity," the Court observed, while sentencing the accused to death. 

Special Public Prosecutor G. Mohan Raj appeared for the State. The accused was represented by Advocates Adeep M., Santhy S., Sandhya Rani, Dency P.V., Surjith S.R., Akhil George, Shalu Jose, Aparna Somarajan, Anjumol C.A., and Deepthy B.

Case Title: State of Kerala v. Asafak Alam 

Case Number: Sessions Case No. 1385 of 2023

Click Here To Read/Download The Judgment