C.V. Bhadang, J.

By this Appeal, under Section 378 of the Code of Criminal Procedure (Code, for short), the appellant-State is seeking modification of the conviction of the respondents from one under Section 304(ii) of Indian Penal Code (IPC, for short) to Section 302 of IPC.

2. The brief facts are that the respondents were put on trial before the learned Additional Sessions Judge at Panaji in Sessions Case No.32 of 2008, for having intentionally caused the death of one Ganesh Ranganathan and for an attempt to murder one Mr. Dhananjay Keswan, both of whom, are drivers by profession. The respondents were also charged for the offences punishable under Section 341 of IPC. Thus, the respondents were charged and tried for the offences punishable under Section 302, 307, 341 r/w 34 of IPC.

3. At the trial, the prosecution examined as many as 39 witnesses and produced the record of the investigation. The respondents neither entered into the witness box nor lead any defence evidence.

4. The learned Sessions Judge framed the following points for determination:

1. Has the prosecution proved that the three accused with their common intention committed the offence under Section 341 of India