Point of Law: Conviction set aside - Conviction in a criminal trial is required to be certain and not doubtful. The burden of proof of guilt of an accused is upon the prosecution -It must stand by itself.

JUDGMENT :

(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Appellant Dukhan Kahar @ Dukhan Ram Kahar has been held guilty in Sessions Trial No.93/2013/281/2015 arising out of Karpi P.S. Case No. 22 of 1999 by the learned 3rd Additional Sessions Judge, Jehanabad for the offences punishable under Sections 148, 302/149, 307/149 of the Indian Penal Code, 27 of the Arms Act and 3/4 of Explosive Substances Act vide judgment dated 10th November, 2016. Consequent upon conviction, vide order dated 18th November, he has been sentenced to death for the offence punishable under Section 302/149 of the Indian Penal Code, rigorous imprisonment for three years and a fine of Rs.10,000/-for the offence punishable under Section 148 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for six months, rigorous imprisonment for ten years and a fine of Rs.50,000/-for the offence punishable under Section 307/149 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for two years, rigorous imprisonment for three years and a fine of Rs.10,000/-for the offence punishable under Section 27 of the Arms Act and in default of payment of fine to undergo further imprisonment for six months and rigorous imprisonment for three years and a fine of Rs.10,000/-for the offence punishable under Sections 3/4 of the Explosive Substances Act and in default of payment of fine to undergo further imprisonment for six months. The Trial Court directed that all the sentences shall run concurrently.

2. Reference made by the Trial Court under Section 366 of the Code of Criminal Procedure (for short “Cr.P.C”) for confirmation of death sentence awarded in the aforesaid Sessions Trial has been registered as Death Reference No. 1 of 2017.

3. Appellant Dukhan Kahar @ Dukhan Ram Kahar has separately challenged his conviction and sentence imposed by the Trial Court by filing Cr. Appeal (DB) No. 72 of 2017.

4. The appeal preferred by the appellant as well as the reference made by the Trial Court has been heard together.

5. The Sessions Trial in which the impugned judgment and order were passed relates to the First Information Report (for short ‘FIR’) that had been registered at 10:00 AM on 19th March, 1999 in Karpi Police Station under Section 154 of the Cr.P.C in respect of an incident that had occurred at Senari situated at a distance of 18 km from the Police Station between 07:30 PM to 11:00 PM on 18th March, 1999. The formal FIR would indicate that the police had received the information regarding the occurrence through wireless message at 11:40 PM on 18th March, 1999.

6. The FIR giving rise to the Sessions Trial was registered on the basis of the oral statement of Chintamani Devi, wife of late Awadh Kishore Sharma, one of the persons, who died in the occurrence, which was reduced into writing by Jamuna Singh, the Sub-Inspector of Police-cum-Officer-in-Charge of Karpi Police Station on 19th March, 1999 at 2:30 AM, at the house of Chintamani Devi, situated at Senari under the police station area Karpi of district Arwal, which was then part of Jehanabad district.

7. In her oral statement, the informant Chintamani Devi stated as under:-

“My name is Chintamani Devi, wife of late Awadh Kishore Sharma, resident of Senari, P.S.-Karpi, District-Jehanabad (Arwal). Today, on 19th March, 1999, at 02:30 AM, I am giving my statement before the SHO of Karpi Police Station that last evening at 7.30 PM, my son Madhukar @ Jhabbu was reading in the light of lantern on the roof and I was also there. My husband came out of the house after hearing some commotion. I and my son saw that many persons had reached in the lane near the house of Engineer Saheb Radhe Shyam Sharma and started knocking his door. At this point in time, my son informed them that there was no male member in the house. One person among them called my son. My son, under the impression that they intend to ask about someone, came down the roof taking lantern with him a