The trial of Nirbhaya’s case is now over and the five accused were convicted and awarded highest form of punishment as per the law. But how the four accused before the Saket court defended their case. Although I personally feel that there should be no defense to their heinous acts, which shook the conscience of the country. But for a fair trial the accused person were given an opportunity to defend their case in consonance with the principles of natural justice. They all took different pleas but all their pleas were demolished by the evidence produced by the prosecution.

Here are the brief about various defense pleas taken by the accused in the Nirbhaya’s case and how each of their plea rejected by their Lordship.

1. Plea of Alibi

All the four accused took the plea of Alibi; they all stated they were not in the alleged bus where this heinous crime took place. But this plea was completely demolished by the inconsistencies in the statements of their own witnesses.

The evidence produced by the prosecution in which the DNA profiling of all the accused was found inside the bus and on the Nirbhaya’s clothes suggested their presence in that alleged bus on that fateful night.

2. DNA evidence is unreliable.

It was pleaded by the accused that the DNA profiling was unreliable as there is an apprehension that police has manipulated the MLC reports against the accused person, They also submitted that police is falsely creating a plot and the DNA report is fake.

The Prosecution established the authenticity of the DNA, MLC reports by showing the chain of transfer of these samples from different spots, they have also clearly established the tamper proof mechanisms implemented by the police and how the court could rely on the evidence on its accuracy and authenticity.

The stand of prosecution was believed by their lordship hence the stand of defense was again discredited.

3. Statements of Prosecutrix were tutored/Prosecutrix was not in the position to give statements and cannot be relied upon.

This Stand of defence was again demolished by the prosecution,  The prosecution stated that prosecutrix was conscious while she was giving her dying declaration and this fact was again certified by the doctors who were treating the prosecutrix, Then again it is hard to believe that prosecutrix who was facing an apprehension of death would give tutored statement.

4. Mukesh was only driving bus he had no participation in crime.

The prosecution has established its case U/s 34 IPC i.e  criminal conspiracy beyond reasonable doubt, There was premeditated plan and an overt act was done as per unlawful agreement between accused person. It is irrelevant whether the accused was driving the bus. Being a part of conspiracy he was equally responsible for the acts of others. The blood stains of Nirbhiya on clothes of mukesh clearly establishes his participation, even if he is not a participant still he was equally responsible.

5. Inconsistencies in Prosecutrix friend FIR.

There were Inconsistencies in the FIR of the prosecutrix friend relating to the identity of  accused person and hence plea of defense was that the accused was of a mistakenly identified.

Lordship on this point held that merely some averments in FIR cannot demolish the prosecution case completely as FIR is not conclusive evidence and it needs to be corroborated with other evidence. The stand of the defence was again demolished.

Conclusion

The case of the prosecution was based on strong scientific evidence which was again corroborated with statements of other witnesses especially the statements of prosecutrix herself and her friend which led to establish the case against accused beyond reasonable doubt and thereby vitiating all the defense pleas which ultimately led to their conviction.

The debate over the capital punishment has in the recent past acquired renewed vigour. The government of the day has been insisting on the increased use of capital punishment for crimes other than murder, particularly rape. Certain women’s group have welcomed this. The judiciary too has been awarding the capital punishment for violent crimes with increased regularity, with the awarding of death penalty to all the 26 involved in Rajiv Gandhi assassination, it was time for the abolitionists

to once again hold a banner of protest. Despite being a party to the ICCPR1 towards abolition of death penalty, India appears to be heading the other way. The Constitutional validity of §302 IPC was questioned before the Supreme Court in Jagmohan Singh v. State of U.P 2 article 14 of the Constitution of India and suffers from excessive delegation. After tracing the judicial decisions which upheld the constitutionality of the death penalty, and the evolution of the ‘rarest of rare’ test in the landmark Bachan Singh case,

by the court in subsequent cases.Till date the capital punishments have only acted as deterrence for those families who could hardly earn bread and butter forget about hiring a smart lawyer. In the year 1994, a man named Dhannajay was given capital punishment for raping and then killing a minor girl. His act as such was brutal calling for severe action against him, but it seems that the ends of justice have not actually been met out. So many cases of murder go not unnoticed but without any punishment because the doer has money to defend himself.

In order to do justice to one person we cannot do injustice to so many others. Why should the innocent family of the rapist suffer for an act for which he the culprit is the only one responsible?Moreover would capital punishment really bring justice? Thanks to the idea of capital punishment that an easier way to do away with the crime has been found by the doers of the heinous crime. To kill the victim and throw her somewhere and move away and if lucky enough then the crime would never

be traced back to the offender. The cardinal questions to be asked here is are the circumstances of the

crime as such that there is no alternative but to impose death sentence?

Hindu dharma talks of nark for evil doers, Muslim talks of jhanum and Christianity talks of hell for evildoers but at the same time without any exception every religion talks of reforms. Giving a chance to the culprit to compensate the victim would go a long way in reforming the person. Moreover Social protestation towards such things would also help in the long run. The unfortunate part is that even the law is very restricted and limited in its definition about rape.§375 IPC specifies that sexual intercourse comprises rape wherein penetration alone suffice to constitute that sexual intercourse which amounts to offence of rape. Least heed has been paid to the fact that rape is much wider a term and as such should be given a much wider interpretation. Even if rape is not done in the strict sense of §375 IPC, the prima facie impression of rape having been

International Covenant on Civil and Political Rights

(1973) 1 SCC 20

Bachan Singh v. State of Punjab AIR 1980 SC 898

Dhananjoy Chatterjee @ Dhana v. State of West Bengal and Ors. AIR 1994 SC 626

on the ground that imposition of capital punishment of death sentence is violative of

it is proposed to examine how the test has been applied Is Capital Punishment Justified in Heinous Crimes Involving Women?

committed does an equal harm to the victim. Nonetheless, it is not intended to take sides; it is said that if justice is to be delivered it should undoubtedly be fair and reasonable. Justice should mean justice. Also if torture is deemed best for the rapist then, why not this torture is constructive? For instance, the convicted can be made to compensate the victim or her family by his income through employment or community services. Even if all this sound a bit dis satisfactory to the victim of rape or her family then it is submitted that capital punishment is quite a merciful punishment for a crime as heinous as rape. Why should the rapist be killed with a pain of just two seconds contrary to the victim who in a society like ours would still live with so much shame and un-acceptance? If the girl has to continue with this stigma throughout out her life let the rapist also live with the stigma of rapist. He should be made to suffer equally, if not to avenge then at least to strike a balance.

By-:  Priyan Garg