Shimla: CBI or POCSO Spl Judge Shimla's verdict delivered on April 28 and quantum of punishment on June 18 could be termed as landmark judgement as it draw the attention towards number of issues.
The copy of Judgement which is with UNI reveals a number of interesting things about this case which may remain privy to the public the verdict is likely to help allay public mistrust about the free and fair trial of this gory crime moreover it would also help to end up a number of cooked theories and speculations.
The trail of the Gudiya case rely upon as many as 55 witnesses as the trial started on May 29, 2018 and it concluded on April 28, 2021 which lasted for 1066 days that is two years and 11 months.
The very first paragraph of the 244 paged judgement written by the Session Judge Shimla Rajeev Bhardwaj begins with heart rendering notes showing the ethos and gravity of the crime and also tried to measure the intensity of earthquake or tremor in the mind and hearts of people.
''Himachal - the land of gods and goddesses was ashamed on 4th July 2017 with the shameless deed committed by two-legged animal. The pleasant dawn of that Tuesday was converted into a murky dusk and the entire state of Himachal was plunged into an ocean of shame. It was indeed a bolt from the blue for this pious state and everybody was in jittery.
The rape and death of a school girl in a remote village of Shimla District and subsequent arrest of six suspects, one of whom died during the police custody have not only shocked the conscience of a common man, but have also thrown gauntlet about the safety of the women or girls and the manner in which the investigation was conducted.
The CBI court which is not hearing another FIR field against SIT members of Himachal Pradesh Police also put some light how the fake theory was being cooked and resulted the death of a suspect in police custody.
The judgment mentioned that 40 parcels of case property handed over to state police to CBI helped the agency to trace out the actual accused and exonerated the five who were arrested by the CBI as DNA extracted from the body of victim or deceased did not match any of them.
The five suspected persons namely Asheesh Chauhan, Rajinder Singha alias Raju, Subhash, Lokjan alias Chhottu and Deepak alias Deepu were also subjected to polygraph, brain mapping, narco-analysis and comprehensive forensic Science Psychological tests at Directorate of FSL Gandhi Nagar Gujarat but nothing was found about the involvement of them.
Beside FSL Junga DNA profile of five persons also examined at CFSL New Delhi did not match with the reference DNA.
Agency also involved as many as 250 people in the investigation including natives of nearby villages, students, shopkeepers, labours etc in the process the blood samples were drawn for DNA profile but samples did not matched with any of them.
The accused was also engaged in wood cutting in the area when it was not traceable the agency took the sample of his mother and sent to CFSL New Delhi. The DNA profile generated from the clothe of victim was found to be consistent as child of the mother of the accused.
''When inquiry was conducted about the accused (who was not arrested by the agency so far) he was found to have criminal background. He was absconding in an FIR registered against him by one of the prosecution witnesses (in this case) in police station Pachhad of district Sirmour. CBI later traced the accused from Anti village of Hatkoti on April 13, 2018."
Further DNA analysis conducted by the accused confirmed his involvement in the crime. ''The judgement mentioned that DNA of the accused generated from the blood sample was consistent with DNA obtained from reference samples. It was also opined that the DNA profile of the accused matched with the DNA profile generated from glass bottle, bite mark and vaginal swab of the deceased.''
The accused also disclosed a statement about the crime in presence of CBI and independent witnesses and CFSL expert in which he stated that he could identify the places where he met the deceased, dragged her to the nearby pit and then committed sexual intercourses and murdered her.
The CBI also took the accused to Maulana Azad Institute of Dental Sciences New Delhi wherein it was opined that it was possible that the bite marks have been caused by the dentition similar to that of the accused.
The confirmation by the accused in presence of independent witnesses that crime took place somewhere else rather than at the spot, is also falsified from the soil examination reports.
Persecution and CBI established the criminal background of the accused by presenting two witnesses including a victim. The verdict also mentioned that in 2015 the accused booked under section 323, 324, 307, 326 and 354 of I.P.C was registered against the accused.
Gudiya case DNA test rely upon Nirbhaya case judgement
In para 189 court rely over the legal authenticity and scientific evidence of DNA test as it states that DNA test or DNA profiling is a technique which compares the genetic pattern contained in the body cells of one human with the genetic pattern of the body cells of another. It is a basic genetic material in all human body cells.
''It is present in white corpuscles and not in red corpuscles. DNA structure determines the human character, behaviour and body characteristics.
The structure of DNA varies from person to person. Each individual has a unique DNA. It can be extracted from blood, saliva, semens, hair, bones, urine, skin tissue, sweat and other organs of the body.
The importance of the DNA profile has been observed in various decisions of the Apex Court and in famous Nirbhya's case, which is titled as Mukesh and another versus State of NCT of Delhi and others, (2017) 6 SCC 1, it was held in Paras 456, 457 and 458, Justice Rajeev Bhardwaj elaborated the land mark judgement.
Courts observations about accused could not be given death penalty in the quantum of sentence.
The judgement also confirmed that CBI succeed to pass the 'test of crime' to prove that accused guilty under sec 302 and 376(A) of IPC however the court also ascertained that CBI demanded the Capital punishment for the accused remained fail to pass the test of rarest of rate. The court granted the life imprisonment till natural life or with death of accused relying upon the test of crime.
However it also mentioned maximum punishment of death under Sec 302 could not be allowed as aggravating circumstances of test of r of r is remained to fail.
The judgment mentioned that counsel for the defense stated argued before the court that When the case is based on circumstantial evidence, the death sentence is not to be awarded.
The crime was not committed in a pre-planned manner. The accused was under the influence of liquor, There is no evidence that there is no possibility of reformation and rehabilitation of the convict. Not even a single instance has been reported about misconduct of the convict during his jail custody for the last more than two years.
The defense also pleaded before the court that the convict has a poor social background and he is also uneducated and therefore, he cannot be considered at par with influential and educated persons.
The counsel for the accused also pleaded before the court that Court must take into account where there is a possibility of rehabilitation of the offender and not determine the punishment on the ground of proportionality as accused is not a professional killer or offender.
The defense also pleaded that baring circumstantial evidence no evidence has been brought on the record by the prosecution.
The prosecution seeking capital punishment said in aggravating circumstances that mother of the convict who is 60 years old is not dependent upon him, victim was a 16-years old girl and helpless.
''It was an extremely brutal, diabolic and cruel act. It was not a case where the victim died as a consequence of rape but the act of strangulation was committed clearly with the intention to kill the victim.
The death of the deceased person on the spot itself shows the aggravating nature of the crime committed by the convict.
Some of the interesting observation of judgement in the case:
''The tongues were paralysed and the pall of gloom descended at the corners of the State because of abhorrent and atrocious nature of crime committed in diabolical manner by the accused and the events which subsequently followed in the arrest of six boys and death of one of them during police custody.''
''The lesson is that the singular Gudiya should not become plural. Line must be drawn with a relentless lesson. The evil must be nipped in the bud otherwise the successive developments of the culprits will make the journey of security irretrievable.''
''The whims and fancies of the culprit must be bottlenecked and muzzled to ascertain future security. ''
In very notional words the court observed that a girl students who are striving hard by moving through a forest to have education subjected to this crime.
The judge said in para 352 ''We are far away in achieving the aim what Mahatma Gandhi said, "the day a woman can walk freely on the roads at night, that day we can say that India has achieved independence."
'''It is a million dollar question as to whether women in India enjoy such independence. Not to speak of the women moving freely, it is tragedy that even the girls are not able to visit the school without any security or protection as many beasts or sharks are roaming all around without any fear to target their prey.''
''It is already a herculean task for the girls to reach their places of learning as the hilly terrain pose innumerable threats and challenges.''
''Many of the girls travel long distances on foot and have to maintain close vigil as their areas have profusion of wild animals. It is indeed an uphill task for them to reach at the portals of education without any facility for transport.''
''Their condition is like out of the frying pan and into the fire. After escaping and saving themselves from the wild animals, they are confronted with human animals. It is undoubtedly a shameful and sinful deed by the culprit.''
''Therefore, the malefactor of Gudiya rape and murder case deserves punishment without any compassion to provide clear and safe environment to other Gudiyas of the State. The sword of security must be removed and the punishment should push the future culprits into thinking cauldron.''
“Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law by imposing punishment which should conform to and be consistent with the atrocity and brutality which the crime has perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'.”
The penological goal and purpose of a sentence is not only deterrent, but also correctional and reformatory. On the question of the purpose and object of imposing punishment, the court said quoting various supreme court judgment in the Gudiya case. (UNI)
