IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1568-1569 OF 2008

SEBASTIAN @ CHEVITHIYAN             ….APPELLANT

VERSUS STATE OF KERALA            ….RESPONDENT

J U D G M E N T  

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

2nd August,  2005,  

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  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  

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  

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  

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-à-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  

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  

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  

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  

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  

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)

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NEW DELHI,  OCTOBER 09,  2009

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