Sebastian @ Chevithiyan vs State Of Kerala

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 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. 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 :

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 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.

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 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.

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 Crl.Appeal Nos.1568- 1569/2008

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.

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.

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.