IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1568-1569 OF 2008
SEBASTIAN @ CHEVITHIYAN ....APPELLANT
VERSUS
STATE OF KERALA ....RESPONDENT
JUDGMENT
HARJIT SINGH BEDI, J.
1. These appeals challenge the conviction of the appellant
under Sections 302, 364, 369, 376(f), 392 and 449 of the
Indian Penal Code and the award of the death sentence for the
offence punishable under Section 302 of the I.P.C. and to
various terms of imprisonment for the other offences. The
facts are as follows :
2. On 1st August, 2005, PW1 was sleeping in the verandah
of his house alongwith his son Saran, whereas his wife was
sleeping inside the house alongwith their daughter Shemi,
aged two years. As a matter of safety, PW-1 used to shut the
door of the house from the outside. At about 4:00 a.m. on the
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2nd August, 2005,
2
PW-1 was told by his wife that Shemi was missing. The couple
thereafter made a frantic search for the child in the vicinity
and also called out loudly to her. Hearing the noise, the
neighbours assembled and joined the search party. An hour
later, the naked dead body of the child was found near the
bridge across the AVM Canal and it was observed that two
gold chains, one from the neck and the other from the waist,
were missing. The dead body was brought to the house and
the matter was reported to the police. An FIR Exhibit P-1
was accordingly recorded at about 7 a.m. in the Police Station.
The police arrived in the village and made the necessary
inquiries. The dead body was also sent for a post-mortem
examination which was conducted by PW-9. The Post-mortem
revealed that :
“Death was due to combined effects of drawing
and blunt injuries sustained around nose and
mouth. Injury Nos. 1 to 5 are on genital area.
More injuries are possible by forcible sexual inter
course. Injury Nos. 6 to 9 are also possible by
forcible sexual act. Injury Nos.10 to 13 can be
caused by pressing the victim on the ground.
Injury Nos.14 and 15 can be caused by coming
into contact with hands with sufficient force.
Injury Nos. 16 to 29 are in and around mouth and
nose. It can be caused with hand with force.
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Injury
Nos.30 to 36 3
can be caused by forcible contact of hand or
contact with ground. The injury Nos.1 to 36 can
be caused by forcibly taking the child and forcible
sexual act and inter course and throwing the child
in water as well as application of blunt force
during these transactions. No poison was
detected in the viscera and blood samples
collected by the report obtained is marked as
Ext.P4. It is also noted in the report that identical
diatoms were detected from the water sample
collected as well as in the bone marrow sample
collected by me from the victim. It is also reported
that human semen and spermatozoa detected in
vaginal swab collected by me. That report is
marked as Ext.P.5. There is evidence of
penetration and emission of semen.”
3. The accused who was seen loitering close by was arrested
and sent for a medical examination. PW-10, the Assistant
Surgeon, certified that he was capable of committing the
sexual act and also found one abrasion 1 cm. on the left side
of the forehead, another abrasion on the left side of the chest
and multiple abrasions on the left shoulder, the left forearm
and on the back. The police also sent some of the articles
which had been picked up from the place of incident including
human hair, fibers of synthetic yarn and the frock which the
child had been wearing to the laboratory for examination.
Pursuant to a search of the appellant, two chains which were
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identified as those
4
worn by the child when she had been despoiled and murdered
were recovered, in the presence of PW-13. The police also sent
the swabs and smears taken from the child and her frock and
from the clothes that the appellant had been wearing at the
time of the incident, and the laboratory reported the presence
of semen and spermatozoa in the vaginal swab of AB blood
group on his underwear and trousers and further opined that
the blood group of the appellant and the deceased child was
AB (positive). The police also recorded the statements of PWs-
5 and 6, the neighbours of the complainant who deposed that
they had seen the appellant roaming around in the vicinity of
the complainant’s house on the previous day.
4. The Trial Court relying on the aforesaid evidence awarded
the death sentence to the appellant. The Court observed that
the appellant had trespassed into the complainant’s house
and taken the child away and had raped and then killed her.
The recovery of the waist chain and the necklace that the
deceased had been wearing when she had been taken away
which had been handed over by the appellant to the police and
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the recovery of the
5
frock under a disclosure statement under Section 27 of the
Evidence Act and the statements of PW5 and PW6, and the
appellant’s previous conviction in several such matters, were
taken as sufficient evidence against him.
5. Mr. Harinder Mohan Singh, the learned counsel for the
appellant has, at the outset, pointed out that the evidence of
PW-5, PW-6 and PW-7 with regard to the appellant being in
the vicinity of the house was uncertain and could not be relied
upon and further that handing over of the jewellery witnessed
by PW-13 and recovery of the frock from the appellant and
duly witnessed by PW-12 had also not been proved.
The learned State counsel has, however, submitted that
one of the very significant circumstances against the appellant
was that he was a resident of a village about 40 Km. away
from the place of incident and as his presence in the vicinity of
the murder site had been admitted even by the defence, he
was called upon to give some explanation as to what he was
doing so far away from home. It has, further, been highlighted
that PW-5, PW-6 and PW-7 who had seen him on the previous
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morning moving
6
around aimlessly had no animosity towards him and the fact
that the appellant appeared to be a paedophile and had been
involved in two similar instances earlier and had been
convicted as well, was a matter of record and for this
additional reason no interference in this matter was called for.
6. We have considered the arguments advanced by the
learned counsel for the parties.
The evidence of PW-5 and PW-6 reveals that appellant
had been seen around the complainant’s house on the
previous day and as he was not a resident of this area, he had
been quickly singled out. These witnesses further stated the
appellant had been seen in the vicinity again after the rape
and murder and he had accordingly been apprehended and
handed over to the police and two chains worn by deceased
had been taken from his pockets. PW-13 also identified the
chains in Court. It is true that in the cross-examination of
these two witnesses, several improvements vis-`-vis their
statements under section 161 of Cr.P.C. had been pointed out
by the defence counsel, but the fact that the appellant had
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been present in
7
the vicinity of the house and had been arrested, soon after the
incident has been admitted even by the defence.
7. Another significant piece of evidence is the statement of
PW-7 who testified to the fact that about 2:30 a.m. on the
night of the murder he had gone out of the house to urinate
and had seen the appellant outside and on being questioned,
the appellant had threatened him with dire consequences with
the result that he had not informed anybody till the third day
after the police had come to the village to verify the facts. He
too stated to the fact that two chains had been recovered from
the pocket of the appellant. It is true that several
improvements have been made by the three primary witnesses
but there is absolutely no reason as to why they would involve
the appellant in a false case as admittedly he was a stranger to
the locality and they bore him no ill will.
8. We have also gone through the evidence of PW-12
relating to the recovery of the frock pursuant to a disclosure
statement made by the appellant under Section 27 of the
Evidence Act. Nothing could be spelt out from the cross-
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examination of
8
this witness except that the recovery had not been made from
a closed place, though he explained that there was very little
movement of human beings in that area as no one was
residing close by. This witness also identified the frock that
had been recovered. It is equally significant that the strands
of fibre recovered from the place of incident had been matched
with the material of the frock and were found to be from the
same source.
9. It is true that in a criminal matter the onus of proof lies
almost exclusively on the prosecution. As already mentioned
above, however, the appellant has not been able to give any
explanation in his statement under section 313 of Cr.P.C. as
to what he had been doing in that locality. On the contrary he
admitted his presence by stating that he had been caught by
the neighbours on suspicion of the murder and beaten up,
and had suffered several injuries in the process. The medical
evidence on the contrary reveals that these injuries could also
have been sustained while raping and killing the young child.
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10. The evidence
9
that the appellant was a paedophile with extremely violent
propensities also stands proved on record in that he had been
convicted and sentenced for an offence punishable under
Section 354 in the year 1998 and later for offences punishable
under Sections 363, 376, 379, 302 and 201 of the IPC for the
rape and murder of a young child and had been awarded a
sentence of imprisonment for life under Section 302, and
several other terms of imprisonment with respect to the other
sections, though, an appeal in this connection was pending as
on date. It is also extremely relevant that the appellant, had,
in addition, been tried for the murders of several other
children but had been acquitted on the 28th July, 2005 with
the benefit of doubt. The present incident happened three
days later.
11. The learned counsel for the appellant has finally urged
that the death sentence in the circumstances was not called
for. He has pointed out that the case rested on circumstantial
evidence and the death penalty should not ordinarily be
awarded in such a case. It has further been emphasised that
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the appellant was
10
a young man 24 years of age at the time of the incident. We
are of the opinion that in the background of these facts, that
the death penalty ought to be converted to imprisonment for
life but in terms laid down by this Court in Swamy
Shraddananda vs. State of Karnataka (2008) 13 SCC 767 as
his continuance as a member of an ordered society is uncalled
for . We quote here-in-below the relevant observations :
“92. The matter may be looked at from a slightly
different angle. The issue of sentencing has two
aspects. A sentence may be excessive and unduly
harsh or it may be highly disproportionately
inadequate. When an appellant comes to this Court
carrying a death sentence awarded by the trial court
and confirmed by the High Court, this court may find,
as in the present appeal, that the case just falls short
of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence.
But at the same time, having regard to the nature of
the crime, the Court may strongly feel that a sentence
of life imprisonment subject to remission normally
works out to a term of 14 years would be grossly
disproportionate and inadequate. What then should
the Court do? If the Court’s option is limited only to
two punishments, one a sentence of imprisonment, for
all intents and purposes, of not more than 14 year and
the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such
a course would indeed be disastrous. A far more just,
reasonable and proper course would be to expand the
options and to take over what, as a matter of fact,
lawfully belongs to the Court i.e. the vast hiatus
between 14 years’ imprisonment and death. It needs
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to be
11
emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the
case, the sentence of 14 years’ imprisonment would
amount to no punishment at all.”
94. In the light of the discussions made above we are
clearly of the view that there is a good and strong
basis for the Court to substitute a death sentence by
life imprisonment or by a term in excess of fourteen
years and further to direct that the convict must not be
released from the prison for the rest of his life or for
the actual term as specified in the order, as the case
may be.
95. In conclusion, we agree with the view taken by
Sinha, J. We accordingly substitute the death
sentence given to the appellant by the trial court and
confirmed by the High Court by imprisonment for life
and direct that he shall not be released from prison till
the rest of his life.”
12. We accordingly dismiss the appeals but modify the
sentence of death to one for the rest of his life in terms of the
judgment in Shraddananda’s case.
…………………………J.
(HARJIT SINGH BEDI)
…………………………J.
(J.M. PANCHAL)
Crl.Appeal Nos.1568-
1569/2008
NEW DELHI,
OCTOBER 09, 12
2009