R.K.RASTOGI,J. - (1.) ALL these bail applications have been moved in Criminal Appeal No. 3385 of 2005, Kalloo and others v. State of U.P., which has been filed against the judgment and order dated 17.6.2005 in S.T. No. 146/03 (State v. Kalloo and others) and in S.T. No. 249/03 ( State v. Smt. Majitun and others) of District Banda which had been decided by Sri Raj Kumar-II Addi­tional Sessions judge Court No. 3 Banda vide his judgment and order dated 17.6.2005 whereby he convicted the accused appellants Kalloo. Abdul, Rahman, Waheed, Naim, Smt. Majitun, Smt. Hasmatun and Smt. Bhoori under sections 302/34 IPC and sentenced them to life im­prisonment and to a fine of Rs. 1,000/- each. It was further provided that in case of default in payment of fine, they will have to undergo imprisonment for six more months.
(2.) THE prosecution case starts with the FIR lodged by 22 Salim son of Kalloo at Police Station Kotwali Nagar, Banda on 5.12.2002 at 10.15 P.M. in which it was stated that he is resident of Mohalla, Mardan Naka near Gazimiya Dargah, Police Station Kotwali Nagar, Banda and he had gone to offer Namaz. When he was return­ing back to his house after offering Namaz, he saw his father Kalloo and brothers Naim and Abdul Rahman and one Waheed son of Sajjan were coming out of his house and his wife Rafikun Nisha was shouting "Bachao, Bachao". He went inside the house and noticed that all these four ac­cused persons had burnt his wife after pouring kerosene oil upon her. He shouted for help. Then his neighbour Mr. Ajij reached there and he and Mr. Ajij tried to extinguish the fire and in this process Salim and Ajij received burn injuries. It was al­leged that the above named four persons had burnt his wife with an intent to kill her. Thereafter he and Ajij took Rafikun Nisha to the district hospital Banda and got her admitted there in a serious condition. This incident had taken place at about 8 P.M. Mohd. Salim had enmity with the above named persons who were threatening to kill them. On the basis of the above report police registered a case under section 307/506 IPC. It appears from perusal of the record that Rafikun Nisha was admitted in the district hospital at 8.15 P.M. and the doctor on emergency duty sent a letter to the Tahsildar/S.D.M. Banda through the Kot­wali Nagar Banda for sending a Magistrate to record the dying declaration of Smt. Rafikun Nisha. This letter was sent at 9.25 P.M. and then the Naib-Tehsildar reached the hospital at about 11.40 P.M. The Doctor certified that Smt. Rafikun Nisha was in proper senses and she was in a position to give her statement. Then Sri Raj Bahadur, Magistrate/Naib-Tehsildar, Banda re­corded her statement in question answer form in which she stated that Kalloo (Sasur), Abdul Rehman (Jeth), Waheed (Jeth), Naim (Dewar), Bhoori (Sas), Hasmatun (Jethani) and Majitun (Devrani) had poured kerosene oil upon her and Hasmatun (Jethani) had burnt her by lighting a match stick. The process of recording the dying declaration was completed at 11.50 P.M. and then the Doctor again gave a cer­tificate that Rafikun Nisha was in proper senses at the time of recording her state­ment. It further appears from perusal of the record that Salim and Ajij both were medi­cally examined at the District Hospital, Banda on 5.12.02 at 9 P.M. and 9.10 P.M. respectively and both of them had burn injuries on their hands, and hair of their head and moustache were also burnt. Since the condition of Rafikun Nisha was serious, she was referred to the Medical College, Lucknow. When she was being taken to Lucknow, she died in the way. Then the case was converted under section 302 IPC.
(3.) THE police after investigation submitted a charge sheet against all the accused persons named in the dying decla­ration. They were tried by the learned Additional Sessions Judge who convicted all of them under section 302 IPC. Ag­grieved with the above judgment and order Smt. Majitun and Smt. Bhoori filed Crimi­nal Appeal No. 2806 of 2005 on 14.7.2005.;