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1992 DIGILAW 215 (KER)

Chandran v. State of Kerala

1992-06-30

MOHAMMED, THOMAS

body1992
Judgment :- Thomas, J. This is a case of infanticide as appellant has been indicted for killing his own baby daughter "Lakshmi" by strangulation and smothering. Sessions Court found him guilty and convicted him of the offence under S.302 of the Indian Penal code. Learned Sessions Judge was "not confident enough to include this case within the category of rarest of rare cases" and hence he awarded only the lesser sentence. 2. Deceased Lakshmi was only four months old when she died. Her mother Retnamma (P. W.3) became mother of two other children (including P.W.2) even before she became wife of the appellant. Lakshmi was born after appellant-married her. Prosecution case is that Ratnamma resisted appellant's persuasion to go to Mangalore to join a prawn peeling unit mainly on the ground that Lakshmi was a suckling child. On 15-9-1987, Retnamma left the child in her house in the care of the appellant and went to a neighbor's house for attending a wedding. Appellant found it a convenient occasion to permanently relieve Retnamma of the suckling child so as to enable her to undertake work at Mangalore. Appellant strangulated the child with a ligature tied around its neck and then smothered it by forcibly applying his palm on her mouth. After the child died, appellant put her in a bucket of water. P.W.2 saw that act and he made a hue and cry. Some of the neighbours as well as Retnamma rushed in and P.W.2 told them of what he saw. 3. P.W.I, one of the sisters of Retnamma gave First Information Statement at Thirikkunnapuzha Police Station at 7.30a.m. On 16-9-1987. Appellant was arrested on 18-9-1987. P.W.9, Associate Professor of Forensic Medicine in Medical College, Alleppey, conducted autopsy on the dead body of the child. He noticed a ligature mark completely encircling the neck and its edges showed ecchymosed. Subcutaneous tissue underneath the mark showed bruising. Contusions on the tip and alae of nose, upper lip, both angles of the mouth, under the chin, above the bridge of nose were also noticed besides superficial laceration on the inner aspect of the upper lip corresponding to the gum. P.W.9 gave his definite opinion that the child died due to strangulation and smothering. 4. Retnamma (P.W.3) did not support the prosecution case and she displayed her lingering attachment to the appellant. P.W.9 gave his definite opinion that the child died due to strangulation and smothering. 4. Retnamma (P.W.3) did not support the prosecution case and she displayed her lingering attachment to the appellant. But P.W.2, her son, said that he saw the appellant encircling a sari around the child and later dipping the child in the bucket water. He also said that when others came, appellant owned that it was he who killed the child. If the testimony of P.W.2 can be acted on, it affords sufficient evidence to support the case against appellant. 5. Learned counsel for the appellant contended that P.W. 2 being a child witness (then aged only 9) does not deserve credit. The main attack against him is that he falsely said that he was studying in the third standard at "Valia Azheekkal School". D.W.I, Headmistress of Government High School Valia Azheekkal, was examined to say that no such student as P.W.2 was then studying in that school. 6. We have to decide first whether the evidence given by D.W.1 is admissible. It must be remembered that D.W.I was examined not for the purpose of proving anything relevant for the issues involved in the case. It was only when the trial judge asked him about his studies (while testing his testimonial competence) that P.W.2 said that he was studying in the said school. Therefore, the said fact is only one of the collateral aspects unconnected with the main question. 7. S.153 of the Evidence Act is titled as "Exclusion of evidence to contradict answers to questions testing veracity".- The main body of the Section reads thus: "When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may after words be charged with giving false evidence". It consists of two exceptions. Under the first exception evidence can be given to prove that the witness has been previously convicted of a crime if the witness had denied it during cross-examination. Under the other exception, if a witness denies the suggestion tempting to impeach his impartiality, evidence can be given to contradict it. S.155 prescribe the modes to impeach the credit of a witness. Under the other exception, if a witness denies the suggestion tempting to impeach his impartiality, evidence can be given to contradict it. S.155 prescribe the modes to impeach the credit of a witness. The purpose of including S.153 in the Evidence Act is to impose some restriction so as to enable the court to confine to specific and material issues. It is pointed out by the Privy Council in Bhogilalv. Royal Insurance Co. (AIR 1928PC 54) that without some such rule, collateral questions would unnecessarily crop up in the course of a trial and the specific questions to be determined might be lost sight of and the trial itself would be lengthened inordinately. The section is based on the decision rendered by Pollock C.B. in Attorney General v. Hitchock (1847(1) Ex. 91) in which the learned judge observed that "a witness may be contradicted as to anything he denies having said provided it be connected with the issue as a matter capable of being distinctly given in evidence, or it must be so far connected with it as to be a matter which, if answered in a particular way, would contradict a part of the witness's testimony, and if it is neither the one nor the other of these, it is collateral to, though in some sense it may be considered as connected with, the subject of enquiry". The rule limiting the right to call evidence to contradict witnesses on collateral issues excludes all evidence of facts, which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. In an early decision, a Division Bench of the Allahabad High Court (consisting of Raghubar Dayal and Desai, JJ.) in Ram Bali v. State (AIR 1952 All. 289) considered this aspect. Quoting Phipson on Evidence (8th Edn.), their Lordships said that "a party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him on irrelevant matters, and his answers thereon will be conclusive". Their Lordships came to the conclusion that "if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer-cannot be contradicted by other evidence except in certain exceptional cases". Such exceptional cases are those indicated in S.153 and 155 of the Evidence Act. 8. Their Lordships came to the conclusion that "if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer-cannot be contradicted by other evidence except in certain exceptional cases". Such exceptional cases are those indicated in S.153 and 155 of the Evidence Act. 8. We are of the view that the evidence sought to be adduced through D.W.I cannot be permitted to come on record as it was intended to contradict PW.2 on an issue which is not relevant in the main enquiry. 9. That apart, D.W.I has said that she does not know whether there is any other upper primary school in Valia Azheekkal. Thus, D.W.1's evidence is of no use to discredit the testimony of P.W.2. 10. When P.W.2 said that he saw the accused rolling a sari around the child and dipping her body in the bucket water, we have to check up whether the said version has been corroborated by other reliable evidence. 11. P.W.I said that she also went to attend the wedding and rushed to the place on hearing the hue and cry. She said that P.W.2 reported to them of what he saw and appellant, also blurted out to them that he killed the child. We would have hesitated to rely on the testimony of P.W.I if it remained in isolation, as P.W.I did not like her-sister's alliance with the appellant. But, P.W.4, a neighbour, P.W.7, brother of Retnamma and P.W.8, a relative of Retnamma supported P.W.1's version in regard to the two points spoken to by her that P.W.2 narrated to them what he saw and the fact that appellant owned his guilt in their presence. 12. Learned counsel contended that it is possible that brothers of P.W.3 would have done this act and concocted this case against the appellant. In support thereof, he pointed out the long delay involved in giving First Information statement to the police. True, first Information Statement was given only at 7.30 a.m. on the next morning. But, such delay, on the facts of this case, is hardly sufficient to doubt that it was the result of concoction or deliberation. In support thereof, he pointed out the long delay involved in giving First Information statement to the police. True, first Information Statement was given only at 7.30 a.m. on the next morning. But, such delay, on the facts of this case, is hardly sufficient to doubt that it was the result of concoction or deliberation. It could only be out of ignorance of one's legal duty to inform the police promptly in a similar situation that P.W.I or anybody else did not go to the police station on the same evening itself. 13. We find no reason to interfere with the finding that Lakshmi was killed by the appellant by strangulation and smothering. We, therefore, confirm his conviction of the offence under S.302 of the Indian Penal Code. Learned Sessions Judge expressed his lack of confidence to include this in the category of rarest of rare cases where a lesser sentence stands unquestionably foreclosed. The State did not file an appeal for enhancement of the sentence. For these reasons, we do not want to impose the maximum penalty. We dismiss the appeal.