IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 CRL.A.No. 930 of 2007() ----------------------- SC.504/2006 of II ADDL. SESSIONS COURT, TRIVANDRUM CP.14/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... APPELLANT/APPELLANT: -------------------- SEBASTIAN, C.NO.1322, CENTRAL PRISON, TRIVANDRUM. BY ADV. SRI.E.D.GEORGE(STATE BRIEF) RESPONDENT: ------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.K.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2008 ALONGWITH D.S.R.NO.2/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.T.SANKARAN, JJ. ------------------------------- D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 () ----------------------------------- Dated this the 19th day of March, 2008 J U D G M E N T KOSHY,J. An innocent infant called Shemi, aged 2 years while sleeping along with her mother in their house was kidnapped after committing house trespass in the night of 1.8.2005. Her ornaments were robbed and after committing rape, by causing blunt injuries and throwing away in the canal situated about 100 metres away from her house. She was murdered. Appellant was found guilty. He was convicted for the offence punishable under Sections 449, 364, 369, 392, 376 (f) and 302 of the Indian Penal Code. Death sentence was awarded to him for the offences punishable under Section 302 of IPC after finding that the murder of the child was one of the rarest of rare cases subject to confirmation of this Court as provided under Section 366 of Criminal Procedure Code. Death sentence Reference and Appeal filed by the accused were heard together. D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 2 2. PW1, father of the child who gave Ext.P1 F.I.Statement at 7 a.m. on 2.8.2005 deposed that he was residing in the above building for the last four years alongwith his wife, 5 year old son called Sharan and the deceased child aged 2 years. According to him, on the night of 1.8.2005, he was sleeping in the varandah of the house along with his son and his wife was sleeping inside the house along with the daughter Shemi. Children slept at 8 p.m. and he and his wife slept by about 10.30 p.m. There is a door to go inside from the varandah. As he was sleeping outside with the child, he used to close the door from outside. At 4 a.m. on the next day, that is, on 2.8.2005, his wife found that daughter is missing and she called him and they searched for the child in the vicinity of the house and they cried aloud. The neighbours assembled and searched for the child. After one hour, the naked dead body of the child was seen near the bridge at the A.V.M. canal and the gold chains weighing about ¾ sovereigns in the waist area as well as in the neck she was wearing was missing. She was D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 3 taken to the house and by 7 O' clock in the morning the matter was informed to the police. He identified MO1 as the gold chain worn by the deceased in her waist and MO2 as the gold chain worn by the deceased in her neck. MO3 was identified as the frock she was wearing on the ill fated day. He also deposed that there was no compound wall in his house. PW2 is the mother of the deceased. She also deposed that incident occurred on 2.8.2005. Deceased was 2 years old. On the previous day, her daughter slept by 8 p.m. and by 10.30 p.m. she also slept along with her daughter. At 4 a.m. she woke up and she found Shemi is missing. She also identified the gold ornaments MO1 and MO2 as well as MO3 frock of the child. When they cried out, people assembled there and after a huge search, child was found. She also stated that while the child was brought, the dress as well as the chains were missing. PW3 a neighbour deposed that he heard the cry at about 4 a.m. He opened the door and found that PWs.1 and 2 were crying. He understood that child was missing. There is a canal bridge across the canal. He also D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 4 stated that his mother's sister Rosily was along with him and she saw the child in the water when Rosily lighted the torch. He took the child from the water and child was found naked and was dead and brought the body to the house of PW2. He also stated that distance between the place where Shemi was found and Shemi's house is about 50 metres and the distance pointed out in the court was about 150 metres. PW4 Rosily is also a neighbour. She deposed that by hearing the cry she also came with the torch and she found the child in the water. She also stated that child was naked and ornaments were missing. PW5, a neighbour, a B.Com graduate also went to the neighbouring house hearing the cry and he also gave similar evidence. He further deposed that he saw the accused on the previous day of the date of incident. Accused was loitering in the locality. Accused was not belonging to the place of incident and he further stated that after finding the dead body while he along with others were standing in the road, they found accused standing on the other side. They went towards him and they enquired about his name and he revealed that his D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 5 name is Poonthura Sebastian and they searched and since something was in the pocket, he was asked to take it out and it was two gold chains in his pocket and they asked him to put back the same into his pocket itself. Then they informed the Police. They handed over the accused to Police. They also identified the above chains as MO1 and MO2. He also stated in cross examination that on the previous day, he saw the accused twice at first at 5 p.m. and after half an hour he found him again near the house of the deceased. PW6 deposed that he is residing about 200 metres away from the place where PWs.1 and 2 are staying. He also seen the accused on the previous day of the incident at about 4.30 p.m. He saw the accused standing in the vicinity and he is not a person of that area and on the next day at 4.30 a.m. hearing the sound that child was missing, he went for search. He also stated that he was standing on the side of the road as he is physically handicapped. He along with his relatives assembled and remained there by 11.00 to 11.30 hours in the morning. PW5 was also there. At that time, they noticed the D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 6 accused who was seen yesterday in the locality was there and they surrounded him. Accused stated that his name is Sebastian and he is a native of Poonthura and he also stated that something was bulging in his pocket. It was taken out and it was found that it was two gold chains. It was marked as MO1 and MO2. PW7 is also residing at Pozhiyoor. She studied upto IVth standard. She deposed that she saw the accused coming from the canal side towards the south at about 2.30 a.m. in the night when she went out to urinate. PW8 is only an inquest witness. 3. PW9 is the Assistant Professor and Deputy Police Surgeon who conducted post mortem. The anti mortem injuries found in the body was as follows: 1. Laceration 0.7 x 0.3 x 0.2 cm. at the vaginal outlet at 5 O' clock position. 2. Laceration 2.7 x 0.8 x 0.3 cm. in the vagina extending from 7 O' clock position in the vaginal outlet upto the back wall of vagina. 3. Tear 1.3 x 0.5 cm. involving the whole D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 7 thickness of hymen at 5 O'clock to 7 O' clock position. The edges of the tear were contused. 4. Contusion 0.5 x 0.5 x 0.3 cm just to the right of urethral orifice. 5. Contusion 0.5 x 0.5 x 0.2 cm. just to the left of urethral orifice. 6. Superficial laceration 0.3 x 0.2 cm at the anal margin at 7 O' clock position. 7. Superficial lacerations 0.4 x 0.2 cm. and 0.2 x 0.2 cm. at the anal margin at 5 O' clock position. 8. Superficial laceration 0.3 x 0.3 cm. at that anal margin at 12 O'clock position. 9. Contusion 3.5 x 1.2 x 0.3 cm. in the anal mucosa just inner to the margin, at 6 O' clock to 7 O' clock position. 10. Contusion 3 x 2 x 0.2 cm on the right side of back of head, 1 cm. above and 6 cm. behind the top of ear. 11. Contusion 1.5 x 1 x 0.2 cm. on the right side of back of head, 1 cm. inner to injury No.10. 12. Seven contusion 0.7 x 0.3 x 0.2 cm., 1.5 x 1 x 0.2 cm., 1.5 x 1 x 0.2 cm., 2 x 0.7 x 0.2 cm., 1 x 0.5 x 0.2 cm., 0.7 x 0.5 x 0.2 cm. and 1.5 x 1.3 x 0.2 cm. over an area 9 x 4 cm. on the back of head 1 cm. below the occiput, each one 0.5 to 1 cm. apart. 13. Contusion 1.5 x 1.2 x 0.2 cm. and D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 8 4.5 x 3.5 x 0.3 cm., 1 cm. apart and one above the other, on the right side of head, 1 cm. above the root of ear. 14. Contusion 1 x 0.4 x 0.3 cm., on the inner half of left upper eyelid , 1.5 cm. outer to midline. 15. Abrasion 0.2 x 0.1 cm. on the left side of face, 1.3 cm. below the lower eyelid margin and 2 cm. outer to the nose with a contusion 0.3 x 0.3 x 0.3 cm. underneath. 16. Two linear abrasion 2.5 cm. and 1 cm. long, parallel and 0.5 cm. apart and horizontal on the left side of face, 2.5 cm. outer to the nose with contusions 0.7 x 0.3 x 0.3 cm. and 0.5 x 0.3 x 0.3 cm. respectively, underneath. 17. Contusion 1 x 0.7 x 0.4 cm. on the left side of face, 2.7 cm. outer to the ala of nose. 18. Two contusions 0.5 x 0.3 x 0.3 cm. and 0.8 x 0.5 x 0.3 cm., 0.5 cm. apart and one below the other, on the left side of face, the lower one 1.5 cm. outer to the left angle of mouth. 19. Six abrasions in the curved line with the convexity directed upwards, on the left side of face and adjacent part of upper lip, varying in sizes from 0.2 x 0.2 cm. to 0.5 x 0.3 cm. over an area 2.7 x 0.7 cm. the outer most one being 1.2 cm. outer to the angle of mouth. 20. Cresentic abrasion 0.6 x 0.2 cm. on the left side of face, 0.7 cm. above and 0.3 cm. outer to the angle of mouth. D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 9 21. Two abrasions 0.3 x 0.2 cm. and 0.5 x 0.3 cm., 0.5 cm. apart and side by side on the outer aspect of right side of upper lip, 0.7 cm. outer to midline and 0.3 cm. below the lip margin, with an underlying contusion 1.7 x 0.9 x 0.3 cm. 22. Abrasion 0.5 x 0.5 cm. on the right side of face, 1.5 cm. below the outer angle of right eye. 23. Contusion 1 x 0.5 x 0.3 cm. on the right side of face 0.5 cm. outer t the angle of mouth. 24. Two contusions 0.5 x 0.5 x 0.3 cm. and 0.3 x 0.2 x 0.3cm. 0.5 cm. apart and one above the other on the right side of face, 1.5 cm. outer to and 0.5 cm. below the angle of mouth. 25. Superficial lacerated wound 0.5 x 0.5 cm. on the inner aspect of right side of upper lip, 1 cm. below the lip margin and 1.2 cm. outer to midline, against the lateral incisor. 26. Superficial lacerated wound 0.7 x 0.3 cm. on the inner aspect of left side of lower lip, 0.7 cm. above the gum margin, and 0.8 cm. outer to midline, against the canine. 27. Contusion 0.3 x 0.3 x 0.3 cm. on the inner aspect of left side of lower lip, 1.2 cm. above the gum margin and 0.3 cm. outer to midline. 28. Contusion 1.2 x 0.5 x 0.3 cm. on the inner aspect of left side of upper lip, 1 cm. below the lip margin and 1 cm. inner to the angle of D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 10 mouth. 29. Superficial lacerated wound 0.4 x 0.1 cm. on the inner aspect of right side of lower lip 0.5 cm. inner to the angle of mouth and 0.8 cm. above the gum margin. 30. Cresentic abrasion 0.7 x 0.1 cm. on the back of trunk, in midline oblique 16 cm. below root of neck. 31. Cresentic abrasion 0.6 x 0.1 cm. on the back of trunk, 0.3 cm. below injury No.30. 32. Cresentic abrasion 0.7 x 0.1 cm. on the back of trunk 0.5 cm., to right and 1.5 cm. below injury No.30. 33. Abrasion 0.2 x 0.2 cm. on the back of trunk in midline, 0.7 cm. above injury No.30. 34. Abrasion 0.7 x 0.5 cm. on the back of trunk, 0.3 cm. to right of injury No.30. 35. Linear abrasion 2.5 cm. long, oblique, on the back of trunk, 0.5 cm. to right of and 2.3 cm. below injury No.30. 36. Cresentic abrasion 0.6 x 0.1 cm. on the right side of back of trunk, oblique, its upper outer end 8.5 cm. below top of shoulder and 5 cm. outer to midline. 37. Multiple linear abrasions varying in sizes 0.3 cm. to 0.6 cm. over an area 2.5 x 1 x 5 cm. on the front of left leg, 6 cm. below knee (black adherent scab). D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 11 It is also stated that blood grouping was done and it shows as “AB” Rh. Positive. She further stated that viscera, sample of blood, vaginal swab and smear, swab and smear from the area outer to vaginal outlet and anal swab and smear were sent for chemical analysis. With regard to the opinion as to the cause of death, death report is as follows: “Death was due to combined effects of drowning and blunt injuries sustained around nose and mouth. Injuries No.1 to 5 are on the genital area. More injuries are possible by forcible sexual intercourse. Injuries Nos.6 to 9 are also possible by forcible and sexual act. Injuries No.10 to 13 can be caused by pressing the victim on the ground. Injuries Nos.14 and 15 can be caused by coming into contact with hands with sufficient force. Injuries Nos.16 to 29 are in and around mouth and nose. It can be caused with hand with force. Injuries No.30 to 36 can be caused by forcible contact of hand or contact with ground. The injuries No.1 to 36 can be caused by forcible taking the child and forcible under going forcible sexual act and intercourse 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 diatom were D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 12 detected from the water sample 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.P5. There is evidence of penetration and emission of semen.” There was no serious cross examination of the Doctor. It shows that the two year old child was raped. There was penetration and emission of semen. She also sustained blunt injuries around nose and mouth and injuries occurred due to forcible sexual intercourse. She was drowned only as she was thrown into the water canal. 4. PW10 is the Assistant Surgeon in the Government Hospital, Parassala who examined the accused. Ext.P6 is the certificate issued by him. He deposed that accused is capable of committing sexual act and he also found abrasion 1 cm. on the left side of the forehead just above the eyebrow and another abrasion on the left side of the chest just above the clavicle and there was multiple abrasion on the left shoulder D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 13 and left forearm and back. According to the accused, people in the locality beat him and it was cause of the above injuries. PW11 is the Assistant Director, Biology Division, Forensic Laboratory Trivandrum. He visited the scene of occurrence and residence of the deceased. He further deposed that seven of the 10 hairs in item IV (2) are human, female scalp hairs which are similar to sample scalp hairs in item No.1 (2). Three of the 10 hairs in item number IV (2) are human scalp hairs which are not similar to sample scalp hairs in item I (2) and II (2). And he further deposed that the rose coloured yarns in item No.IV (3) are yarns made of synthetic fibres in the frock in item No.IV (1). He further deposed that since he collected hairs from an open place there is possibility of having hair of more than one person. Five of the seven hairs in type I item IV (2) could have been separated from the body by the application of force because two of the hairs had roots of anagen phase and 3 hairs had root with broken nature. PW12 is an attestor to Ext.P10 scene mahazar. He deposed that frock of the child was recovered from the place pointed out by D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 14 the accused in the presence of the Circle Inspector of Police, Parassala. PW13 is the salesman in the jewellary at Parassala. He deposed that he saw the accused taking out one chain and handing over to the police and he weighed the same. One is aranjanam (chain wearing in the waist) and other is neck chain and identified as MO1 and MO2 and marked Ext.P11. PW16 is the Chief Chemical Examiner attached to the Laboratory, Thiruvananthapuram. She deposed that she received three sealed bottles containing the specimen of vaginal swab and smear and smear from the Department of Forensic Medicine, Medical College, Thiruvananthapuram. The samples were subjected to chemical microscopic and serological examination and the report is marked as Ext.P4. She deposed that human semen and spermatozoa were detected in vaginal swab covered by item number 7 (a), (b) and (c). And she further deposed that anal swab did not contain semen and spermatozoa. PW17 is the Joint Director, Forensic Science Laboratory, Thiruvananthapuram. He deposed that on 18.10.2005, one sealed packet and two unsealed packets D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 15 containing material objects were received from the Assistant Director, Biology Division and item II (1), III (1), III (2), these items were examined to detect the presence of blood, its origin and group. Ext.P13 item No.III (1) and (2) are the pants and underwear of the accused seized at the time of arrest. Pants was covered with mud. It contained semen and blood belonging to AB group. The blood group of accused and the child was that of AB group. He further deposed that the report after examination bears his signature and office seal which is marked as Ext.P13. Result of examination is that the sample of blood in item II (1) belongs to AB group, item II (1) and III (2) contain semen mixed human blood belongs to AB group. 5. PW20 is the Dy.S.P. of Police. He deposed that after registering the F.I.R., he reached the house of the deceased and prepared Ext.P2 Inquest report and from the dead body, nail clipping, scalp hair etc. were collected and by 11.45, he received information that locals are restrained a person at Poonthura Bridge and he went there and brought the person to D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 16 the Police Station and on the disclosure, he took the two gold chains from his pocket and that was handed over to him. Accused also shown MO3 frock from the place it was left. He also stated that the dresses worn by the accused at the time of incident was marked as MOs.4, 5 and 6. PW21, Blood Bank Technician of the Medical College Hospital, Thiruvananthapuram, who issued Ext.P17 certificate stated that the sample of blood of Saranya @ Shemi shows that it was AB postitive. From these evidences, court below found that accused alone has committed the offence especially people including PW5 and PW6 saw the accused on the previous day and pants and underwear of the accused also contained blood group of AB positive. The blood of the accused was also of AB positive. Even though his blood group was of AB positive, there is no clear explanation how blood and semen was found in his dress when he was arrested within hours of the incident. The presence of the accused in the place, who was a stranger to the place, was proved by the witnesses. He was seen around the place of incident by PWs.5 and 6. The frock of the D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 17 child was recovered as pointed out by the accused. That shows that accused was aware where the frock of the child was lying. Even though PWs.1 to 6 deposed that they made search thoroughly but they did not able to find out the dress. Only the accused had shown it. That is one of the circumstances connecting him with the incident. Presence of the accused who is shown on the previous day was deposed by PWs.5 and 6. PW7 saw the accused at 2.30 a.m. and at about 4 O' clock, it was noticed that child was missing. The gap between the incident was one and a half hours. The F.I.Statement was given at 7 a.m. The accused has no explanation in 313 statement, being a total stranger, regarding his presence at that locality. According to him, he was caught by the people on mere suspicion and he was beaten up. Therefore, his presence is not denied. Body of the child was found when people in the locality searched the body after hearing the cry in the early hours just before sunrise. Accused was also caught by them with the ornaments of the child in the morning itself before he was able to leave the village. The D.S.R.NO.2 OF 2007 & CRL.A.NO.930 OF 2007 18 chains worn by the deceased was also recovered from the body of the accused. The trial court also found that there is reason to disbelieve the evidence of PWs.5 and 6 and recovery evidence corroborates the evidence of PWs.5 and 6. The totality of the circumstances will show that accused is guilty and accused alone is guilty. The chain of circumstances against the accused is complete and only hypothesis possible from the proved circumstances is that accused is guilty of the charges levelled against him. 6. Now we will come to the justification of sentence imposed on him. Sentence shall be in proportion to the gravity of the offence committed. Inadequate sentence would do more harm to the justice system and it will undermine the public confidence in