Kerala High Court
Misiriya @ Misiriya Rahman vs State Of Kerala on 13 January, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.940 of 2021 1
2025:KER:2287
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
MONDAY, THE 13TH DAY OF JANUARY 2025/23RD POUSHA, 1946
CRL.A NO. 940 OF 2021
(CRIME NO.567/2011 OF Manjeswar Police Station, Kasargod
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.945 OF 2012 OF
ADDITIONAL DISTRICT AND SESSIONS JUDGE (AD HOC)I, KASARAGOD)
APPELLANT:
MISIRIYA @ MISIRIYA RAHMAN
AGED 45 YEARS
D/O. SEETHIKUNHI, ARIYAL HOUSE, KUDLU VILLAGE,
KASARAGOD DISTRICT 671 124
BY ADVS.
P.K.SUBHASH
K.REEHA KHADER(K/167/2013)
SREELAKSHMI SABU(K/000200/2020)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, KOCHI 31
OTHER PRESENT:
SMT NEEMA T V, SR. PP
Crl.Appeal No.940 of 2021 2
2025:KER:2287
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.01.2025, THE COURT ON 13/1/2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.940 of 2021 3
2025:KER:2287
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
Crl.Appeal No.940 of 2021
------------------------------------
Dated this the 13th day of January 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the sole accused in SC No.945/2012 on the
files of the Additional Sessions Court-1, Kasaragod challenging her
conviction and sentence imposed under Sections 302 and 307 IPC.
Prosecution case
2. Due to enmity towards PW1 and his second wife Nafeesath
Misiriya, the accused, who is the first wife of PW1, on 7/8/2011 at about
6 a.m., poured petrol upon them while they were sleeping inside their
house, through a window and set them ablaze. Both PW1 and Nafeesath
Misiriya sustained severe burn injuries and were taken to a hospital in
Mangalore. While undergoing treatment, Nafeesath Misiriya succumbed
to her injuries at about 8.50 p.m on 15/8/2011. Hence, the prosecution
alleges that the accused has committed the offences punishable under
2025:KER:2287
Sections 449, 326, 307 and 302 IPC.
Proceedings before the trial court.
3. In order to prove the afore charge, the prosecution examined
PW1 to PW34 and marked Exhibits P1 to P36 documents and MO1 to
MO9. On questioning under Section 313 Cr.P.C, the accused denied all
the incriminating circumstances brought against her in evidence and
contended that she is innocent. From the side of the accused, no
evidence was adduced. The trial court, on an appreciation of the
evidence on record and after hearing both sides, found the accused
guilty and convicted her under Sections 302 & 307 IPC, but acquitted her
of the charges under Sections 449 and 326 of IPC. The accused was
sentenced to undergo imprisonment for life and to pay a fine of
Rs.50,000/- under Section 302 IPC. In case of default, the accused was
ordered to undergo rigorous imprisonment for a period of three years.
The accused was also sentenced to undergo rigorous imprisonment for a
period of five years and to pay a fine of Rs.10,000/- under Section 307
IPC and in default, to undergo rigorous imprisonment for a further
period of six months.
A conspectus of the evidence let in by the prosecution
4. PW1 is a victim in the attack and he is also the husband of the
2025:KER:2287
deceased Nafeesath Misiriya. He deposed that Nafeesath Misiriya is his
second wife and she died on 15/8/2011 at Unity Hospital in
Mangalapuram. On 7/8/2011 at about 6 am while he and Nafeesath
Misiriya were lying in a cot near an open window in their bedroom, some
liquid fell upon them and there was the smell of petrol. When he tried to
get up, he saw his wife's body engulfed in fire. He doused the fire by
rolling his wife on the floor. Thereafter, when he went outside, he saw
the accused opening the gate and running away. Even though he
followed her, could not succeed in catching her. He also suffered burn
injuries on his leg, chest and hand in the incident. Later he went to the
house of CW9 and called him and people came there. Outside the
window, he found MO1 plastic mug with the smell of petrol and MO2 a
container used for storing paint. Thereafter, he along with his wife were
taken to Unity Hospital, Mangalapuram and were admitted there. He also
stated that he married the accused in 1996 and thereafter their
relationship got strained. Subsequently, he signed in Ext.P2 mahazar
when the police seized Ext.P1 marriage certificate of his and the
deceased, and also in Ext.P3 scene mahazar. In his cross examination,
he stated that his homestead has a compound wall of two and half
metres height on all its sides and at the relevant time, the window panes
2025:KER:2287
on the top were open. He also stated that he had covered his wife with
a blanket and had rolled her on the floor to douse the fire.
5. PW2 deposed that both PW1 and the deceased were residing in
the house opposite to her room and on the fateful day at about 6 a.m.,
the accused had approached her and had borrowed a match box for the
purpose of burning waste. She handed over a match box to the accused
and 5 minutes thereafter she heard shouts from the house of PW1 and
went there. She also stated that she has no previous acquaintance with
the accused.
6. PW3 is a worker, who was staying in the house of CW11 at
Hidayath Bazar at the relevant time. He deposed that at 6 a.m., he heard
a noise from his neighbouring house and when he looked, saw the
accused near the window of PW1's house. In his cross-examination, he
stated that there is a 3 feet high compound wall surrounding the house
of PW1 and he had seen the accused coming out of the sit out of PW1's
house. The accused opened the gate and went outside.
7. PW4 is the mother-in-law of the deceased. She stated that when
she went to the room of PW1 on hearing shouts, she saw PW1 trying to
douse the fire on the deceased by using a blanket. At that time, PW1
told her that it was the accused who had poured petrol and had set on
2025:KER:2287
fire the deceased. PW1 immediately ran outside and tried to nab the
accused. In her cross examination, she stated that it is after 10-15
minutes, PW1 ran outside.
8. PW5 is a witness who saw the accused near the house of PW1 in
an agitated state. He deposed that at about 6.05 am, while he was
coming from the Mosque, he saw the accused going in a distressed
condition and when he went to the house of PW1, saw him coming from
the back side of his house with burn injuries. He also saw a motorbike
parked in the courtyard of PW1's house with its fuel pipe removed.
9. PW12 is the doctor who conducted the post mortem examination
on the body of Nafeesath Misiriya. She deposed that on 16/8/2011, she
conducted the examination and the certificate issued was marked as
Ext.P6. According to her, the cause of death was due to burn injuries and
at that time, Nafeesath Misiriya was pregnant.
10. PW13 is the Medico-Legal Consultant attached to the Unity
Hospital, Mangalore. He deposed that on 7/8/2011 at about 9.20 am, he
had examined deceased Nafeesath Misiriya, who was suffering from
heavy burn injuries and had issued an Ext.P7 certificate. On the same
day, he also examined PW1 who was suffering from 27% burn injuries
and had issued an Ext.P8 certificate. He also stated that the dying
2025:KER:2287
declaration of deceased Misiriya was taken by PW 16 in his presence.
11. PW 14 is the medical Officer attached to KVH Hospital, Uppala.
He deposed that on 7/8/2011 he had examined Nafeesath Misiriya, who
was suffering from superficial burns all over her body and had issued
Ext.P9 certificate. On the very same day he also examined PW1, who
was suffering from 20% burn injuries and issued Ext.P10 certificate. He
referred both the injured to a higher medical centre.
12. PW16, who was the JFCM-I, Kasaragod, deposed that on
8/8/2011 at about 1.30 pm, he recorded Ext.P12 dying declaration of
Nafeesath Misiriya at Unity Hospital in the presence of PW13. The injured
was able to give a statement voluntarily and she was conscious. She
gave answers voluntarily with clarity, but could not put signature or sign
as both her hands had burn injuries. The victim stated that the cause of
the injury was pouring of acid by the accused who was the first wife of
her husband. PW16 also stated that at the time of recording her
statement, PW1 was near the bed of the victim and their beds were
separated by a screen.
13. PW17 is the scientific assistant who examined the place of
occurrence on 16/8/2011. He deposed that he collected burnt pieces of
clothes from the bedroom, cotton swab, and wood dust from the window
2025:KER:2287
of the bedroom and packed and sealed them and handed them over to
the investigating officer.
14. PW27 is the police officer who recorded Ext.P19 FIS of the
deceased from the ICU, Unity Hospital. At that time, the deceased was
having burns all over her body and was not in a position to affix her
signature. He also stated that PW1 was admitted in another room at that
time.
15. PW28 is the police officer who registered Ext.P20 FIR on the
basis of Ext.P19 FIS.
16. PW30 is the investigating officer in this case. He deposed that
on 8/8/2011 at about 1.30 pm, Ext.P12 statement of the deceased was
recorded by the Magistrate in the presence of himself and the doctor.
Later at 3 p.m he prepared Ext.P21 scene mahazar and seized an ochre-
coloured dhoti (MO8), a partly burnt blanket (MO9), a veil (MO3), a piece
of article resembling flesh, a floor mat (MO4), a plastic mug (MO1) and a
paint container(MO2) having a capacity of one litre. Later on 12/8/2011,
he collected the dress worn by the deceased as per Ext.P4 mahazar and
prepared Ext.P24 inquest report. On 16/8/2011, at 4 pm, he inspected
the place of occurrence with the scientific assistant and took into custody
three articles handed over to him as per Ext.P5 mahazar. The articles
2025:KER:2287
were produced before the Court, as per Ext.P26 property list and sent for
chemical examination as per Ext.P27 forwarding note. On 17/8/2011 at
about 9.30 a.m, the accused was arrested after preparing Ext.P28
document. Later, on 24/8/2011, he seized the dresses worn by the
accused and her mobile phone from Goa as per Ext.P18 mahazar and
produced them before the Court as per Ext.P31 property list. Later on
3/9/2011, he prepared Ext.P3 additional scene mahazar. In his cross
examination, he stated that as per the FIS, the deceased has not seen
the accused. According to him, some improvements have been made by
the deceased in Ext.P12 than as stated in Ext.P20. He also stated that
the house has a compound wall on all its sides and the same is having a
height of about one and half metres. The distance between the wooden
grill of the window is six cm. and he understood that petrol was spewed
inside through it. He does not remember whether traces of petrol were
found in the articles seized as per Ext.P5 mahazar and whether
fingerprints were found in MO1 and MO2. He would say that he had
visited the house of CW11 but could not find any construction work going
on there.
17. PW 34 is another investigating officer in this case. He deposed
that on 14/9/2011, he took over the investigation of this case and
2025:KER:2287
collected Ext.P13 ownership certificate, Ext.P14 site plan and Ext.P36
chemical analysis report. In his cross examination, he stated that he
does not know whether MO1 and MO2 can be inserted through the
window.
Contention of the appellant
18. Learned Counsel for the appellant argued that the
prosecution in this case has utterly failed to prove its case beyond
reasonable doubt. She contended that the trial court erred in relying
upon Ext.P12 dying declaration, which from the evidence on record
would reveal, is a product of tutoring. She argued that even though in
Ext.P19 FIS the deceased has stated that it is from the mouth of her
husband she came to know that it is the accused who has committed the
act, in Ext.P12, would say that she had seen the accused through the
window at the relevant time. She, by relying on the decision of the Apex
Court in Irfan @ Naka v. State of U.P. (AIR 2023 SC 4129),
contended that the factors stipulated in the judgment, when applied to
the facts of the present case, would considerably affect the weight of
Ext.P12 and will make it non-reliable. She would also argue that the
evidence of PW1 is not at all credible and PWs2, 3 and 5 are planted
witnesses, whose evidence is again not reliable. She submitted that the
2025:KER:2287
version of the prosecution that the accused had sprayed petrol through
the window and had set on fire the victims is highly improbable
considering the fact that no traces of petrol were found in the window sill
or in MO1 and MO2 and also that MO1 and MO2 will not enter through
the gap in the window. According to the learned Counsel, the prosecution
has not even proved that the cause of death of Nafeesath Misiriya is
homicidal.
Contentions of the Prosecutor
19. Learned Public Prosecutor Adv.Neema contended that the trial
court had rightly relied upon Exts.P12 and P19 dying declarations to
reach a conclusion of guilt against the accused. She contended that a
dying declaration is substantive evidence that requires no corroboration
and hence there is no reason not to act upon them in the present case.
She argued that Exts.P12 and P19 when read together would unerringly
show that it is the accused who has poured petrol upon the deceased
through the window and thereafter has set her ablaze. She contended
that the dying declarations find support and corroboration from the
evidence of PW1 also and the presence of the accused at the relevant
time is vouchsafed by the evidence of PWs2,3 and 5. She argued that
Ext.P36 FSL report also supports the prosecution case and shows that
2025:KER:2287
traces of petrol were found in the bed sheet and in the dress worn by
the deceased. Hence, she prayed that this appeal may be dismissed.
Evaluation of evidence
20. In the present case, admittedly the incident took place at 6 am
on 7/8/2011. The law was set into motion when Ext.P19 statement of
the deceased Nafeesath Misiriya was recorded by PW27 from the hospital
at about 4 pm on the same day, which was followed by registration of
Ext.P20 FIR at 6 pm. On the very next day, at about 1.30 p.m Ext.P12
statement of the deceased Nafeesath Misiriya was again recorded by the
Magistrate(PW16), from the hospital. The trial court has extensively
relied upon both Ext.P12 and Ext.P19 to reach a conclusion of guilt
against the accused, by considering them as dying declarations. The
recital in Ext.P19 is to the effect that while deceased Nafeesath Misiriya
and her husband(PW1) were sleeping in a cot that was placed near an
open window, some liquid was poured upon them from outside the
window and immediately thereafter fire engulfed them. Then PW1 by
using a blanket covered Nafeesath Misiriya and tried to douse the fire.
Thereafter, PW1 went outside the house and came back and told
Nafeesath Misiriya that he had seen the accused running away. Later,
2025:KER:2287
others came and took them to the hospital. So going by the recitals in
Ext.P19, it can be seen that her knowledge about the alleged presence of
the accused in the scene is from the mouth of PW1.
21. Now, as per Ext.P12, the deceased has stated that while they
were sleeping in their room with the windows open, she felt like some
water being poured over her and immediately thereafter, felt a burning
sensation. At that time, her body caught fire and she was not able to rise
from the bed. She also stated that it is the accused who has done so and
her brother Majid was also present to help her. She further stated that
she had seen the accused through the window at that time. So going by
Ext.P12, it can be seen that the deceased has made considerable
improvements in her version than while giving Ext.P19 statement. As
stated earlier, even though in Ext.P19, the deceased has stated that it is
her husband who had given the information to her about the presence of
the accused at the relevant time, in Ext.P12 she goes on to say that she
had looked outside the window and had seen the accused. It is also
noteworthy that the deceased mentioned the presence of the accused's
brother at the relevant time and even stated that he assisted her.
However, this version does not find any support from the prosecution's
case. From the afore facts, it can thus be seen that Exts.P12 and P19
2025:KER:2287
dying declarations are not at all consistent with each other and that the
latter dying declaration only appears to be a manifestation of the dying
person's imagination or one which is a product of tutoring at the instance
of some interested party.
22. The principles governing the acceptance of a dying declaration
had been considered by the Apex Court as early as in 1958 in the
decision of Kushal Rao v.State of Bombay (AIR 1958 SC 22) and it
has been held thus :
" On a review of the relevant provisions of the Evidence Act and of the
decided cases in the different High Courts in India and in this Court, we have
come to the conclusion, in agreement with the opinion of the Full Bench of
the Madras High Court, aforesaid,
(1) that it cannot be laid down as an absolute rule of law that a dying
declaration cannot form the sole basis of conviction unless it is
corroborated;
2) that each case must be determined on its own facts keeping in view
the circumstances in which the dying declaration was made;
3) that it cannot be laid down as a general proposition that a dying
declaration is a weaker kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same footing as another
piece of evidence and has to be judged in the light of surrounding
circumstances and with reference to the principles governing the
2025:KER:2287
weighing of evidence;
(5) that a dying declaration which has been recorded by a competent
Magistrate in the proper manner, that is to say, in the form of
questions and answers, and, as far as practicable, in the words of the
maker of the declaration, stands on a much higher footing than a
dying declaration which depends upon oral testimony which may suffer
from all the infirmities of human memory and human character, and
(6) that in order to test the reliability of a dying declaration, the court
has to keep in view, the circumstances like the opportunity of the
dying man for observation, for example, whether there was sufficient
light if the crime was committed at night; whether the capacity of the
man to remember the facts stated, had not been impaired at the time
he was making the statement, by circumstances beyond his control;
that the statement has been consistent throughout if he had several
opportunities of making a dying declaration apart from the official
record of it; and that the statement had been made at the earliest
opportunity and was not the result of tutoring by interested parties."
23. In Dandu Lakshmi Reddy v. State of Andhra Pradesh
[(1999) 7 SCC 69], the Hon'ble Apex Court held that:
"3.There can be a presumption that the testimony of a competent
witness given on oath is true, as the opposite party can use the
weapon of cross-examination, inter alia, for rebutting the
presumption. But a dying declaration is not a deposition in court. It
2025:KER:2287
is neither made on oath nor in the presence of an accused. Its
credence cannot be tested by cross-examination. Those inherent
weaknesses attached to a dying declaration would not justify any
initial presumption to be drawn that the dying declaration contains
only the truth."
24. Later, in the decision in Nallapati Sivaiah v. Sub Divisional
Officer Guntur (AIR 2008 SC 19), the Hon'ble Apex Court has held
thus :
"..... It is equally well settled and needs no restatement at
our hands that dying declaration can form the sole basis for
conviction. But at the same time due care and caution must
be exercised in considering weight to be given to dying
declaration in as much as there could be any number of
circumstances which may affect the truth. This court in more
than one decision cautioned that the courts have always to
be on guard to see that the dying declaration was not the
result of either tutoring or prompting or a product of
imagination. It is the duty of the courts to find that the
deceased was in a fit state of mind to make the dying
declaration. In order to satisfy itself that the deceased was in
a fit mental condition to make the dying declaration, the
courts have to look for the medical opinion."
It was also held that:
2025:KER:2287
"...... The court has to consider each case in the
circumstances of the case. What value should be given to a
dying declaration is left to court, which on assessment of the
circumstances and the evidence and materials on record, will
come to a conclusion about the truth or otherwise of the
version, be it written, oral, verbal or by sign or by gestures."
25. Recently the Hon'ble Apex Court in the decision in Irfan's case
(cited supra) laid down, some of the factors which has to be considered
by the court to satisfy itself as to the truthfulness of a dying
declaration, which are extracted below:
".xxx
(i) Whether the person making the statement was in
expectation of death?
(ii) Whether the dying declaration was made at the earliest
opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to believe the
dying declaration was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of
prompting, tutoring or leading at the instance of police or any
interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly
2025:KER:2287
observe the incident?
(vii) Whether, the dying declaration has been consistent
throughout?
(viii) Whether, the dying declaration in itself is a
manifestation/fiction of the dying person's imagination
of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the
first one inspires truth and consistent with the other
dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying
declaration?
26. While applying the afore dictums to the facts of the present
case as discussed afore, we have no hesitation in reaching a conclusion
that, there exists a reasonable suspicion to believe that Ext.P12 dying
declaration was put in the mouth of the dying person and is a product of
tutoring at the instance of some interested party. Further, the dying
declarations are not consistent with each other and Ext.P12 in all
probabilities reflects the epiphany of the deceased. In such
circumstances, we have no hesitation to find that no much weightage
can be given to Exts.P12 and P19 dying declarations since a glaring
2025:KER:2287
doubt is cast upon its truthfulness.
27. Another reason, that prompts us to reach a conclusion that the
version of the deceased in Ext.P12 that she had seen the accused
through the window is false, is the fact that the cot which is lying in the
place of occurrence impedes the same. It is the version of PW1 itself
that he along with the deceased were lying in a cot placed near to the
open window when the incident took place. A perusal of Ext.P21 would
clearly show that the cot is having a length of 193 cms, width of 93 cms
and height of 49 cms and it was lying very close to the western wall of
the room. Ext.P11 series photographs also confirm the same. If so, the
version of the deceased that she had seen the accused through the
window at the relevant time is highly improbable since the same is
possible only on a person stepping onto the cot. The afore act of
stepping on to the cot is also highly improbable in the case of the
deceased, since the circumstances in which she was at that time are not
favourable for the same.
28. Coming to the evidence of PW1, it is to be seen that his version
is to the effect that when the fire engulfed the body of his wife, he tried
to douse it by using a blanket and by rolling her on the floor. Then he
instructed his mother who came there within 5-10 minutes, to look after
2025:KER:2287
his wife and went outside by opening the door. According to him, it is
then he saw the accused opening the gate and running away. He also
has stated that even though he followed the accused, he could not
apprehend her. But, coming to the evidence of PW4, she would say that
immediately on reaching the room, PW1 had informed her that it was the
accused who had poured petrol and set the deceased ablaze. Her
evidence also reveals that it is after 10-15 minutes of dousing the fire
that PW1 had gone outside the house. If so, it can be seen that there is
no consistency in the evidence of PW1 and PW4 regarding when PW1
saw the accused for the first time. As stated earlier, even though PW1
would say that it is after dousing the fire when he went outside he saw
the accused, PW4 would say that even at the time of dousing the fire,
PW1 has spoken about the identity of the accused. There is absolutely no
explanation forthcoming from the side of the prosecution regarding this
incongruity and the same definitely cast a cloud of suspicion in the
testimony of PW1. The suspicion gets much stronger considering the fact
that it is nearly 20-25 minutes after the incident, PW1 has allegedly gone
outside the house and had seen the accused running away. It cannot be
believed for a moment that the accused has been waiting all this time
outside the house till PW1 allegedly opened the door and went outside.
2025:KER:2287
29. Be that as it may, the materials on record would also go to
show that there is absolutely no evidence available to prove the source
of petrol allegedly used by the accused, the manner in which the accused
brought it to the place of occurrence and the manner in which the same
was allegedly poured inside the room. Even though PW5 had stated
that he had seen a bike parked in the house of PW1 with its fuel pipe
removed, no convincing evidence, including scientific evidence has been
let in to prove that the accused has drawn petrol from it. Evidence is also
lacking as to how the accused has carried the fuel up to the window and
how the same was poured inside through the window grill having a width
of only 6 cm. At this juncture, it is very pertinent to note that Exhibit P
36 FSL report categorically shows that no petrol or other inflammable
liquid was detected in the red colour plastic cup(MO1) and the paint
can(MO2) seized from the place of occurrence as per Ext.P21 on the next
day of the incident. Moreover, the prosecution has no case that even at
the time of seizing MO1 and MO2, it had the remnants or smell of petrol
in them. Further, there is no evidence to show that any part of the
window or its beams had traces of petrol in it since in all probability, if
the liquid was thrown from outside the window as alleged, the same
would have fallen upon them. At this juncture, it is again pertinent to
2025:KER:2287
note that the prosecution has not forwarded any of the articles seized as
per Ext.P5 mahazar, including the wood dust collected from the window
to the FSL for chemical examination and there is absolutely no
explanation forthcoming for the same. Most importantly, it is to be seen
that the prosecution has also not adduced any evidence to show in what
manner the fire was ignited inside the house and not even a burnt
matchstick or any such material was detected inside the room. In short,
we may say that the prosecution has utterly failed to adduce the link
evidence to connect the accused with the material object allegedly used
for the commission of the crime.
30. Coming to the evidence of the eyewitnesses, it is to be seen
that PW2 is a person who was residing in Chithradurga and the
prosecution has not adduced any convincing evidence to prove that she
was in fact residing at the place of occurrence during the relevant time.
The prosecution did not examine CW6, the owner of the house in which
PW2 was allegedly residing or produce any document to show that she
was a tenant of CW6. Coming to the evidence of PW3, a native of Bihar,
it is to be seen that his evidence regarding sighting the accused is also
not credible. His evidence is to the effect that from his house, which is
situated next to the house of PW1, he had seen the accused near the
2025:KER:2287
window initially and thereafter saw her coming out of the sit-out and
walking out of the gate. It is to be taken note that the window is
situated on the western side and the sit-out is situated on the eastern
side of PW1's house and if so, it is quite impossible for PW3 to see the
accused on both sides of the building, from his house. This is more so,
considering the fact that the house of PW1 is surrounded by a compound
wall having a height of about one and half metres. Moreover, it is to be
taken note that even though PW3 would state that at that time he was
doing construction works in the house of CW11, the prosecution has not
examined CW11 to prove the afore fact. At this juncture, we would take
note of the fact that the evidence of PW30 would reveal that no
construction work, as deposed by PW3, was going on in the house of
CW11 at the relevant time. Coming to the evidence of PW5, it is to be
seen that the same is also very vague and does not tally with the
versions of PW1 and PW4. His evidence does not reveal the exact place
in which he allegedly sighted the accused and the distance therefrom to
the house of PW1. Further, his version of sighting the accused at 6.05
am does not inspire confidence, since the evidence of PW1 and PW4 is
to the effect that the accused left their house about 20--25 minutes after
the incident. In the afore circumstances, we conclude that the evidence
2025:KER:2287
of all these witnesses is not credible and cannot be acted upon.
31. The upshot of the afore discussions on evidence is that the
prosecution has failed to prove beyond reasonable doubt that the
accused has committed homicide of deceased Nafeesath Misiriya. It also
failed to prove that it is the accused, who has besprinkled petrol on PW1
and the deceased and has set them ablaze. The trial court has not
properly appreciated the evidence on record and it has reached a wrong
conclusion of guilt against the accused. If so, we are of the view that this
appeal is only liable to be allowed thereby setting aside the conviction
and sentence imposed against the appellant/accused.
32. In the result, this appeal is allowed as follows:
The conviction and sentence passed against the appellant/accused in SC
No.945/2012 by the Additional Sessions Court-I, Kasaragod under
Sections 307 and 302 IPC are set aside and the appellant/accused is set
at liberty.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
Judge
dpk
