By Sujit Bhar
The case in question—concerning the abduction, rape, and murder of a five-year-old girl in a remote village of West Bengal—has reignited the long-standing debate around the application of the Protection of Children from Sexual Offences (POCSO) Act, the death penalty and the role of reformative justice in criminal jurisprudence. The Calcutta High Court’s decision on June 27-28, to commute a death sentence to life imprisonment without remission for 60 years, maybe looked at from a different perspective, not as much in terms of legal reasoning, as in terms of the efficacy of POCSO as a deterrent and a tool for justice.
In the 2021 case from Jhargram district, two appellants were convicted for the heinous rape and murder of a minor under Sections 302, 376-DB, 363, 365, 201, read with 34 IPC and Section 6 of the POCSO Act. The trial court awarded the death penalty, finding the crime to be one of the “rarest of rare”.
Upon appeal, a Division Bench of Justices Debangsu Basak and Md Shabbar Rashidi of the Calcutta High Court found no real flaw in the trial court’s evaluation of evidence. They agreed that the circumstantial chain was complete, and the “last seen” theory, along with the seizure of incriminating articles, pointed unambiguously to the guilt of the accused. Still, the Court commuted the sentence, emphasizing reformative possibilities, social backwardness and the appellants’ mental and emotional impairments.
Here it becomes imperative to study the Act in question and its objectives. Enacted in 2012, the POCSO Act was designed to address the rising cases of child sexual abuse, offering stringent penalties—including mandatory minimum sentences, death penalty under aggravated circumstances, and child-friendly judicial processes. Section 6, in particular, provides for rigorous punishment in cases of penetrative sexual assault and Section 376-DB IPC (added by the Criminal Law Amendment Act, 2018) prescribes death or life imprisonment for gang-rape of a minor under 12.
In this particular case, the gravity of the crime—the age of the child, the brutality inflicted and the subsequent murder—squarely qualified as a situation where POCSO’s full force could be applied. And indeed, it was by the trial court.
However, the higher court has taken a softer stand, with its decision to prioritize reformative principles.
THE PRIME POSER
The question now is whether reformative justice alone can commute a death sentence. The answer, in legal terms, is yes—but conditionally. The Supreme Court’s “rarest of rare” doctrine, enshrined in Bachan Singh vs State of Punjab (1980), lays the groundwork for death sentence imposition only when “the alternative option is unquestionably foreclosed”.
Subsequent jurisprudence, including Machhi Singh vs State of Punjab (1983) and Shatrughan Chauhan vs Union of India (2014) emphasised the need to examine the following:
- The possibility of reformation: The circumstances of the criminal and the gravity and nature of the crime. In the Calcutta High Court judgment, the division bench noted as follows: Appellant 1 had severe speech impairment and was a slow learner. Appellant 2 had been undergoing psychiatric treatment, dropped out of school early and came from a socially backward background. Both had no prior criminal history and had exhibited good conduct in custody. The State, crucially, had not demonstrated the impossibility of reformation, thereby making the death penalty legally untenable in the Court’s eyes. Hence, the sentence was commuted to a non-remissible life term of 60 years.
With the above, one has to also consider if points of legality do translate to justice for the victim?
A MORAL DILEMMA
Herein lies the moral dilemma. While legal correctness may have been upheld, societal expectations of justice in cases involving extreme sexual violence—particularly against children—often tilt towards harshest punishment. For many, especially victims’ families and communities, justice is equated with retribution.
POCSO was created to fill a gap in India’s child protection regime, but such commutations raise uncomfortable questions:
- Does the judicial system adequately account for the trauma of the victim’s family?
- Does the emphasis on the criminal’s potential for reform overshadow the need for deterrence?
- Is rehabilitation of the criminal more important than closure for the victim’s kin?
There is no easy answer. But what is certain is that reformative justice may not be a sure-shot alternative or a default fallback, especially in crimes of such brutal and irrevocable nature.
IS POCSO FAILING THE PROMISE?
Over the years, POCSO has indeed been used well for justice, but maybe there remain some implementation issues to look into:
- Conviction Rates: As per the National Crime Records Bureau 2020 data, the conviction rate under POCSO remains at 40 percent, which, though a rise from 35 percent of 2017 and 2019, still remains low.
- Delay in justice: The Act mandates completion of trials within one year, but there is pendency across India. Numerous cases languish for years, compounding trauma for victims and their families.
- High acquittal and misuse: There’s a growing body of evidence indicating misuse of POCSO in consensual teenage relationships, particularly in inter-caste and inter-religious contexts, which further dilutes focus from truly heinous crimes like rape and murder of minors. The acquittal rate has remained high.
- Lack of sensitivity and infrastructure: Many courts lack child-friendly infrastructure, trained personnel and psychological counselling support for minor victims. This erodes the victim-centric philosophy that POCSO was supposed to embody.
OTHER CASE STUDIES
- Rajendra Pralhadrao Wasnik vs State of Maharashtra (2019): The Court commuted a death sentence for a man convicted of raping and murdering a three-year-old, citing lack of proper evidence regarding the impossibility of reformation. This case bears striking similarity to the Jhargram case.
- Purushottam Dashrath Borate vs State of Maharashtra (2015): Here, the Supreme Court upheld the death sentence in a gang-rape and murder case, emphasizing the “shocking nature” of the crime and its impact on public conscience.
These precedents highlight that application of the “rarest of rare” principle is subjective, heavily dependent on judicial interpretation and the quality of prosecution.
HAS THE POCSO ACT HIT A WALL?
The spirit behind POCSO remains laudable, but there is a growing disillusionment in how it is implemented. Courts are increasingly hesitant to apply the death penalty—even in cases where the brutality is beyond doubt. Meanwhile, the systemic weaknesses (poor investigation, unreliable witnesses, delayed trials) continue to plague outcomes.
It raises a disquieting question. Has the intent of POCSO been somewhat softened, or even neutralized? For this, there could be some possible ways forward:
- Courts need clear, consistent sentencing frameworks, especially under POCSO, to eliminate subjectivity and public discontent.
- Timely, efficient investigation and trial are as critical as the final sentence. Fast-track courts must be empowered with resources and oversight.
- If courts are to apply reformative principles, psychological profiling must be a mandatory part of sentencing. Reform should be evidence-based.
- The victim’s perspective—often lost in procedural rigour—needs to be reinstated at the heart of the justice process. Restitution, counselling, and closure should be integrated with conviction and sentencing.
- The standard for commuting death penalties, especially under special acts like POCSO, needs to be rigorous.
In the end, it might seem that while the Calcutta High Court’s ruling stands as legally sound, the verdict could be a trifle emotionally charged. The conviction was upheld, but what remains within the ambit of debate is whether reformative justice can truly address crimes of exceptional brutality, particularly against children.