@ Chevithiyan Vs. State of Kerala  INSC 1650 (9 October 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NOs. 1568-1569 OF 2008 SEBASTIAN @
CHEVITHIYAN ....APPELLANT VERSUS
SINGH BEDI, J.
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 :
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
Crl.Appeal Nos.1568- 1569/2008 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.
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 :
was due to combined effects of drawing and blunt injuries sustained around nose
and mouth. Injury Nos. 1 to 5 are on genital area.
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.
and 15 can be caused by coming into contact with hands with sufficient force.
Nos. 16 to 29 are in and around mouth and nose. It can be caused with hand with
Nos.1568- 1569/2008 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
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.
to a search of the appellant, two chains which were Crl.Appeal Nos.1568-
1569/2008 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.
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.
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 Crl.Appeal Nos.1568- 1569/2008 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.
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.
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 Crl.Appeal Nos.1568- 1569/2008 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.
We have considered the arguments advanced by the learned counsel
for the parties.
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 Crl.Appeal Nos.1568- 1569/2008 been present in 7 the vicinity of
the house and had been arrested, soon after the incident has been admitted even
by the defence.
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.
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- Crl.Appeal Nos.1568- 1569/2008 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.
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.
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.
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
Crl.Appeal Nos.1568- 1569/2008 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 :
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.
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
Crl.Appeal Nos.1568- 1569/2008 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."
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.
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."
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
..............................J. (HARJIT SINGH BEDI)