JUDGMENT :

Sanjay Kumar Pachori, J.

1. The Present Criminal Appeal has been preferred to set-aside the judgment and order dated 23.8.2002, passed by Additional Sessions Judge, Court No. 10, Allahabad in Session Trial No. 259 of 1996 (State Vs. Sunil Prakash Gaur), by which the trial court convicted the appellant under Section 307 of I.P.C. and sentenced him under Section 307 of I.P.C., to undergo five years rigorous imprisonment with fine of Rs.1,000/-, and in default of payment of fine, three months rigorous imprisonment.

2. Brief facts of the case are that the first information report dated 23.12.1992 was lodged by Junior Engineer of Jal Nigam at 02:45 P.M. stating that at about 01:45 P.M. on the same day, the appellant came to his office with an open can of kerosene oil and asked to prepare his salary. The first informant told him that his salary has been paid for the period he has worked. After hearing these words, the appellant poured kerosene oil upon the first informant and threatened him with dire consequences. He also threw a burning match stick upon the first informant but the first informant fled away from the spot and saved himself. On commotion, R.K. Gupta, R.P. Sharma, Radheyshyam and Indra Mani Tiwari, reached at the spot. Police picket also reached there and brought the appellant to the police station. After completion of investigation, charge sheet was submitted against the appellant and the appellant denied the charge and claimed trial.

3. In order to prove the prosecution case, four witnesses have been examined; PW-1 Pramod Kumar Singh (first informant), PW-2 Radheyshyam Mishra, PW-3 Indra Mani Tripathi and PW-4 S.I. Gorakh Nath Rai. After examining the prosecution witnesses, statement of the appellant was recorded under Section 313 of Cr.P.C., wherein he stated that the prosecution evidence is false and he has been falsely implicated in the present case due to enmity. The appellant has filed attested copy of the judgment and order dated 28.03.2001 passed in Criminal Case No. 4793 of 1999 (State Vs. Sunil Prakash Gaur) under Sections 353, 504, 506 of I.P.C. passed by Special Chief Judicial Magistrate, Allahabad. The appellant did not adduce any other oral or documentary evidence.

4. Before the trial Court, the appellant argued that no recovery memo of can of kerosene oil had been proved by the prosecution. PW2 Radheyshyam Mishra and PW-3 Indra Mani Tripathi had not seen the appellant pouring kerosene oil upon the first informant. PW-1 is a solitary witness of the incident. PW-2 and PW-3 have not seen the incident of pouring of kerosene oil by the appellant upon the first informant and throwing a burn matchstick upon him. There is material contradiction between the statement of PW-1 Pramod Kumar Singh and other two eye witnesses. It was further argued that the Investigating Officer PW-4 S.I. Gorakh Nath Rai, has not found any kerosene oil over the ground at the time of the inspection of the place of incident.

5. The trial court held that the statement regarding empty can of kerosene oil was recorded in the General Diary, which was proved as Ex.-Ka-5, in which it is mentioned that empty can of kerosene oil along-with the appellant has been brought to the police station. The trial court further observed that PW-2 and PW-3 have reached at the place of incident after pouring kerosene oil upon the first informant and they had never stated that they saw the incident of pouring kerosene oil.

6. The trial court further observed that the appellant had not disputed the fact of the PW-1 that he poured the kerosene oil upon the first informant and threw a burn matchstick upon him as stated in his examination-in-chief.

7. The trial court further observed that the statement of the PW-4 S.I. Gorakh Nath Rai, Investigating Officer has no relevance. It is further observed that after three days of the incident, there was no possibility to found kerosene oil over the ground at the place of incident.

8. Being aggrieved by the trial court