Himachal , the land of Gods and Goddess ashamed on July 4, 2017: CBI Spl Court. Read imp pointers from judgement in Gudiya case

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Photo used for indicative purpose only. Source internet
Mohan Lal Verma 
Shimla, Jun 21
CBI or POSCO Spl Judge Shimla’s verdict delivered on April 28 and quantum of punishment on Jun 18 could be termed as landmark judgement as it draws the attention towards a  number of issues. The copy of Judgement reveals a number of interesting points about this case which may remain privy otherwise. The verdict is likely to help to 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 relied upon as many as 55 witnesses as the trial started on May 29, 2018 and was concluded on April 28, 2021 which lasted for 1066 days i.e 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 it also tried to gauge the the intensity of the earthquake or tremor in the minds and hearts of people.
” Himachal – the land of gods and goddesses was ashamed on 4th July 2017 with the shameless deed committed by a 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 a 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 has 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 the other FIR against SIT members of Himachal Pradesh Police also puts some light about, how the fake theory was being cooked and resulted in the death of a suspect in police custody.
The judgment mentioned that 40 parcels of case property handed over by 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 their involvement in the crime. Beside FSL Junga, the DNA profile of five persons was also examined at CFSL New Delhi but 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 profiling but did not match with any of them.
How accused came under radar
The accused was engaged in wood cutting in the area but when was not traceable the agency took the samples of his mother and sent it to CFSL New Delhi. The DNA profile generated from the clothes of victim were found to be consistent with samples taken from his mother.
” When an inquiry was conducted about the accused (who was not arrested by the agency by then) he was found to have criminal background. He was absconding in an FIR registered 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.”
About DNA profiling of accused
Further DNA analysis of 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 marks and vaginal swab of the deceased.”
The accused also disclosed in a statement about the crime in presence of CBI and independent witnesses and CFSL expert that he could identify the places where he met the deceased, dragged her to the nearby pit and then committed sexual intercourse 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 may have been caused by the denture 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.
The Prosecution 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 was booked under section 323, 324, 307, 326 and 354 of I.P.C.
Gudiya case DNA test relied upon Nirbhaya case judgement  
In para 189 the court relied upon 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, semen, 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 Hon’ble 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, here.
Court’s observations about why the accused be given death penalty in the quantum of sentence  
The judgement also confirmed that CBI succeeded in passing the ”’test of crime’ to prove that the accused guilty under sec 302 and 376(A) of IPC, however the court also ascertained that though the CBI demanded Capital punishment for the accused but the case failed to pass the test of rarest of rare crimes.  The court granted life imprisonment till natural life or with death of accused relying upon the test of crime.
Court noted that maximum punishment of death under Sec 302 could not be allowed as aggravating circumstances of test of rarest crime could not be ascertained.
The judgment mentions that counsel for the ‘defence’ has argued before the court that when the case is based on circumstantial evidence, 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 defence 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. Adding, that the Court must take into account that 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 defence also pleaded that baring circumstantial evidence no evidence has been brought on the record by the prosecution.
The prosecution seeking capital punishment said that the mother of the convict who is 60 years old is not dependent upon him, and victim was a helpless 16-years old girl.
” 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 girl on the spot itself shows the aggravating nature of the crime committed by the convict, had stated the prosecution.
Some of the interesting observation of judgement in the case
” 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. ”
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.”

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