Prosecution must prove intention to kill beyond reasonable doubt to convict under murder charges; conviction under culpable homicide affirmed due to lack of evidence.

1. The present Appeal has been filed by the State under S.378 of the Code of Criminal Procedure, 1973 , challenging the judgment and order dated 02.12.1998 passed by learned Additional Sessions Judge, Sabarkantha (hereinafter referred to as "the Trial Court") in Session Case No.31 of 1995. By way of the impugned judgment and order, after giving benefit of doubt, the accused have been convicted under S.304 Part - II read with S.34 of the Indian Penal Code, 1860 (hereinafter referred to as " IPC ") with S.135 of Bombay Police Act instead of S.302 of I.P.C by the Trial Court.

2. The short facts of the prosecution case read as under: -
2.1 The alleged incident took place at approximately 20:30 hours on 13th November, 1994. It has been alleged that as the Accused No.1 having an illicit relationship with the daughter of Savjibhai and the deceased - Chimanbhai Thavrabhai came between them. In this context, both the accused, with the intention to kill the deceased - Chimanbhai and help of each other, killed the accused.
2.2. Thereafter, an First Information Report (FIR) No.79 of 1994 came to be lodged by the father of the deceased i.e., Thavrabhai Savjibhai on 4th November, 1994 with 08:15 hours with Modasa Rural Police Station against accused under S.302 and S.34 of the IPC read with S.135 of Bombay Police Act.
2.3 After completion of investigation, charge - sheet came to be filed against accused. The Magistrate has committed the case to be tried by Trial Court.
2.4 The Investigating Officer recorded witness statements, prepared panchnamas including panchnama of scene of offence, panchnama of recovery and discovery of articles etc.
2.5 Upon completion of the investigation and upon committal of the case to the Trial Court, learned Trial Court, after appreciating oral and documentary evidence on record, has convicted the accused under S.304 Part - II read with S.34 of by giving the benefit of doubt instead of S.302 of and ordered rigorous imprisonment for five years and fine of Rs.500/- and in default of fine further rigorous imprisonment of three month by his judgment and order dated 02.12.1998, which has been already undergone by the accused - respondents herein.

3. Being aggrieved and dissatisfied with the judgment and order passed by the Trial Court, the prosecution has filed the present criminal Appeal.

4. We have heard learned Additional Public Prosecutor, Mr.L.B.Dabhi and learned advocate Mr.M.M.Barot for the accused - respondents at length, who have taken us through various oral evidence as well as documentary evidence, which are on record. We have independently examined and appreciated evidence of witnesses.

5. Learned Trial Judge, framed charges vide Exh.11 against the Respondents - Accused for the aforesaid offences. The Respondents - Accused pleaded not guilty and claim to be tried. They were tried for the said offences and in order to bring home the charge, the prosecution has also produced oral and documentary evidence.

6. Learned Additional Public Prosecutor, Mr.L.B.Dabhi would submit that the findings of Trial Court are contrary to law in evidence on record and the findings recorded by the Trial Court are erroneous and based on irrelevant material.
6.1 He would further submit that learned Trial Court has committed an error while convicting the accused - respondents under S.304 Part - II of IPC read with S.34 of instead of S.302 of and has not properly appreciated the evidence produced on record, though the prosecution had proved its case against the accused and learned Trial Court has given undue weightage to the minor omission and contradiction in the vers