Sebastian @ Chevithiyan vs State Of Kerala

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.

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 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.

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- 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.

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. Crl.Appeal Nos.1568- 1569/2008

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 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 :

"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 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."

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