JUDGMENT :

Ashwani Kumar Mishra, J.

1. This appeal is by the accused Manjoor Alam @ Nirahu challenging his conviction in Sessions Trial No. 8 of 2009 arising out of Case Crime No. 796 of 2008, under Section 302 IPC, Police Station Kolhui, District Maharajganj; whereby he has been sentenced to rigorous life imprisonment alongwith fine of Rs.10000/- and on its failure to undergo further incarceration of two years.

2. The prosecution case proceeds on a written report dated 11.9.2008 (Exhibit Ka-1) by the informant (PW-1), who happens to be the father of the deceased, stating that he is a resident of District Maharajganj and his son Ramjan has returned about a month ago from Saudi and was sleeping with his wife Noorjahan (PW-2) on the roof. On 6.9.2008 at about 10.00 in the night the accused appellant who was residing at Bahduri on rent, on account of enmity came on the roof and threw acid on his son and daughter-in-law. The injured son was taken to Gorakhpur for treatment and the doctors have referred him for further treatment to Delhi where he is admitted and undergoing treatment. The son of the informant was not in a position to speak and the daughter-in-law (PW-2) who had sustained lesser injuries is being treated by doctor Maurya. Having returned from Delhi the report has been lodged with the request to take appropriate action. On the basis of the above report the first information report got registered as Case Crime No. 796 of 2008 at 8.35 pm on 11.9.2008.

3. The investigation proceeded and a plastic bottle used for throwing acid together with certain acid burnt clothes (Lungi and Odhani) were recovered vide Exhibit Ka-8 on 2.11.2008. After nearly three months of the incident the injured son of the informant died on 15.12.2008 at about 8.00 pm and an intimation of such fact was given to the Investigating Officer on 16.12.2008.

4. Initially the FIR was lodged under section 308 and 326 IPC but after the death of injured the offence was altered to one under Section 302 IPC. It may also be noticed that the offence under Section 308 IPC was also altered to Section 307 IPC during the course of investigation. The Investigating Officer proceeded in the matter and collected medico legal case sheet cover as also the summary prepared by the Medical College at Gorakhpur. The case sheet shows that the injured was admitted at the Medical College at Gorakhpur on 7.9.2008 at 1.45 am and doctor has mentioned it to be a case of burn injury. The informant had informed the doctor that someone had thrown acid on the son of the informant while he was sleeping at about 11.00 pm. To similar effect is the document at Page 9 of the paper book wherein the doctor has recorded that it is a case of acid burn where acid was thrown by someone at around 11.00 pm on 6.9.2008 while the patient was sleeping. The Investigation ultimately concluded with submission of chargesheet (Ex.Ka-9) against the accused appellant. The implication of the accused appellant apparently surfaced on the basis of statement made by PW-2 and PW-1 who stated that the acid has been thrown on the deceased by the accused appellant.

5. The Magistrate took cognizance upon the charge-sheet and committed the case to the Court of Sessions wherein charges were framed against the accused appellant under Section 302 IPC. The accused appellant denied the accusations made against him and demanded trial. The trial accordingly commenced in which prosecution has produced three witnesses of fact namely Noor Ali (PW-1) (informant/father of the deceased); Noorjahan (PW-2) (wife of the deceased) and PW-3 Hamid, who happens to be the father of PW-2 and lives in an adjoining house but was sleeping next to PW-1 at the time of occurrence.

6. PW-1 in his statement has clearly stated that on the fateful night the deceased was sleeping with his wife (PW-2) on the roof of the house when the accused appellant on account of prior enmity came on the roof and threw acid on his son and daughter-in-law. The injured and his