The admissibility of evidence to contradict a witness on collateral issues and the limitations on calling evidence to contradict witnesses on irrelevant matters.

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. 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