The main legal point established is the application of Exception IV of Section 300 of the Indian Penal Code in altering the conviction of A-1 from murder to culpable homicide not amounting to murder under Section 304 Part I.

1. - Three accused persons viz., Daud Khan, Javed Beg and Nitin Sindhi (respectively accused A-1, A-2 & A-3, for short) were charged and tried by the learned Addl. District & Sessions (Fast Track) Camp Nimbahera, District Pratapgarh, in Sessions case No. 103 of 2005 for the offence under Section 302, 302/34, 109/302 Indian Penal Code ('Indian Penal Code', for short) and Section 3/25 of the Arms Act,on the accusation that accused came to the place of incident with weapons gun and knife with a view to kill deceased Nandsingh and accused A-1 Daud fired one gunshot on the chest of Nandsingh, who on receiving the same succumbed to the injury during treatment.

2. At the end of the trial, accused A-1 Daud was found guilty for the offence under Section 302 Indian Penal Code and Section 3/25 of the Arms Act, and he was sentenced to imprisonment for life and fine of Rs. 5,000/-, in default of payment, further simple imprisonment for a period of six months for the offence under Section 302 Indian Penal Code and rigorous imprisonment for three years and fine of Rs. 500/-, in default of payment further simple imprisonment for one month under Section 3/25 of the Arms Act. Accused A-2 Javed was acquitted of the offence under Section 302 but was convicted for the offence under Section 3/25 of the Arms Act and sentenced to rigorous imprisonment for three years and fine of Rs. 500/-, in default of payment to suffer further simple imprisonment for a period of one month. Accused A-3 Nitin Sindhi was not found guilty for all the offences, therefore, he was acquitted of the offences with which he was charged.

3. Aggrieved by the impugned judgment and order accused A-1 and A-2 have respectively filed D.B. Criminal Appeal Nos. 87.9 of 2005 and 860 of 2005 with the aid of Section 374 of the Code of Criminal Procedure ('Code', for short) challenging the conviction recorded against them whereas State of Rajasthan has filed D.B. Criminal Appeal No. 523 of 2006 with the aid of Section 378 of the Code, challenging acquittal of accused A-2 for the offence under Section 302 Indian Penal Code and acquittal of accused A-3 for all the offences with which he was charged.

4. The prosecution case, as disclosed from the FIR, and unfolded during trial, is that complainant PW-1 Gajendra Singh filed a complaint on 19.06.2004 before the Police Station Nimbahera, wherein he has inter-alia stated that at about 7'O Clock in the evening, Nitin Sindhi and Narendra Kumawat came to his residence and thereafter his brother Nandsingh alongwith them went on motorcycle. At about 9:30 PM, Narendra Kumawat came to him frightened and told that he, Nitin Sindhi and Nandsingh, all the three, were sitting on chairs at Bathra Telecom & Restaurant, where accused A-1 Daud and A-2 Javed came on a motorcycle. javed A-2 took out a knife and told Nandsingh that toady his end has come and meanwhile Daud A-1 fired a gunshot on the chest of Nandsingh. As per report, it was further stated that Narendra Kumawat told him that he and Nitin Sindhi tried to catch hold of accused Daud and Javed but they fled away from the place of occurrence by riding the motorcycle and thereafter Nandsingh was taken to hospital where he was declared dead.

5. On the aforesaid written report, police registered FIR No. 374/04 and started investigation. During the course of investigation, inquest was held on the dead body of deceased Nand singh and the dead body was sent for autopsy. Inspection report of the place of occurrence Ex.P/3 was prepared, blood smeared soil and control soil was taken from the place of occurrence and seized vide Ex.P/4 and the statements of the witnesses were recorded, Panchnama of the dead body, was prepared vide Ex.P/5 and the clothes of the deceased were seized vide Ex.P/6. The postmortem of the dead body of the deceased was got conducted and the seized articles were sent to FSL for chemical examination. Accused were arrested and the weapons used in commission of the offence i.e. gun and