- (1.) This appeal by the State has been filed to challenge the judgment of the learned Sessions Judge, Jodhpur dated 20.8.1985, acquitting the three accused respondents Kayamdeen, Jamaldeen and Kale Khan for the offence under Section 302 and 302/34 so also 404 IPC.
(2.) The necessary facts are, that on 10.3.1982 Nasirudin P.W.1 lodged an oral report Ex.P/1 at Police Station Phalodi, to the effect, that in the area of village Khinchan, he was grazing his herd at about 12 in the noon on hearing the shrieks, whereupon he ascended the sand dune and saw that Gafoor Khan son of Mahmood Khan resident of Naneu was running, being chased by Kala son of Ismile Musalman resident of Dayakaur, riding a camel, while the other two accused Jamaldeen and Kayamdeen sons of Mehardeen were following on foot, all the three were armed with Farsis. Kala rushed the camel and waylaid Gafoor and stopped him, in the meanwhile Kayamdeen and Jamaldeen also arrived, and all the three persons inflicted injuries on Gafoor with Farsis and fell him down and even thereafter, gave beating. Then the victim was taken up on camel, held by Kala, while Kayamdeen and Jamaldeen took the camel towards the south. The witness kept sitting at that place only, after the accused persons went quite far away, he followed them, and when he ascended the sand dune, he saw the three accused persons going on the camel and at some distance, he saw the dead body of Gafoor on the sand dune. Gafoor was having injuries on the head, face and neck, and was badly smeared with blood and had died. Then he carried his herd towards his Dhani and straight-way went to the house of Mahmood, the father of the deceased, narrated the whole thing to him, whereupon Mahmood told to be old man and would be going to dead body with other persons, and the witness was sent to Police Station for lodging the report. On this report, a case for offence under Section 302 IPC was registered, and after completing necessary investigation, challan was filed in the Court of Munsiff and Judicial Magistrate, Phalodi, wherefrom the case was committed.
(3.) The learned trial Court charged the accused Kayamdeen for the offence under Section 302, in the alternative 302/34 and 404 IPC, while the other two accuseds were charged with the offence under Section 302, and in the alternative 302/34 IPC.;