JUDGMENT

Arijit Pasayat, J.-By the impugned judgment a Division Bench of the Andhra Pradesh High Court altered the conviction of the respondents (hereinafter referred to as the accused ) from Section 302 of the Indian Penal Code, 1860 (in short the IPC ) to Section 326 IPC. The State of Andhra Pradesh has questioned legality of the judgment.

2. Background facts as culled out from the judgment of the trial Court and the High Court are essentially as follows:

The accused are residents of Pamarru village and they are close associates. A-1 and A-2 are brothers, A-4 is wife of A-2 and A-3 is Sarpanch of Pamarru village. One Dandipati Gangi Reddy (hereinafter referred to as the deceased ) was also a resident of Pamarru. PW-1 Lakshmi Reddy is his brother, PW-2 Chandra Sekhara Reddy, is his son. One Bommareddy Venkata Reddy is maternal uncle of PW-1 Lakshmi Reddy and the deceased, A-1 and A-2 are sons of one Suramma, who is sister of wife of Bommareddy Venkata Reddy, namely Bullemma, who was not in good terms with her husband and they had no issue. Bommareddy Venkata Reddy was having 18 acres of land and house sites. Bullemma insisted that her husband should give their property to her sister s sons i.e. A-1 and A-2; but Venkata Reddy was in a mood to give the property to PW-1 and the deceased, who were his sister s sons, since he was having more affection and love towards them. Due to these differences, Bullemma and Venkata Reddy were separated and Venkata Reddy was paying maintenance to his wife as per Court orders. Subsequently Venkata Reddy executed a Will bequeathing his properties to PW-1 Lakshmi Reddy and the deceased. After the death of Venkata Reddy, the deceased and PW-1 were looking after the properties and paying maintenance to Bullemma till she died. A-1 and A-2 bore grudge against the deceased and PW-1, since Venkata Reddy did not bequeath any property to them. Therefore, disputes arose and civil suit was filed and the same was decreed in favour of PW-1 and the deceased about three years prior to the date of occurrence and they took possession of the properties of Venkata Reddy. Against the said decree, A-2 preferred appeal to the High Court and the matter at the relevant point of time was pending before the High Court. The deceased and PW-1 filed another suit in Subordinate Judge s Court of Gudivada in O.S. 138/86 and three months prior to the incident in this case, the Court passed a decree in favour of PW-1 and the deceased. Thus, the grudge of A-1 and A-2 became more acute. A-3 who was Sarpanch of Pamarru allegedly had illicit intimacy with the younger sister of Bullemma. Therefore, he supported the wife of Venkata Reddy and A-1 and A-2. Due to these prolonged litigations, A-1 and A-2 almost became penniless.

3. Being vexed with the Civil Court litigations and due to Court orders in favour of deceased and PW-1, the accused persons hatched a plan to kill the deceased. About one week prior to the date of occurrence, all the accused assembled in the house of A-2 several times and entered into criminal conspiracy to murder the deceased and A-3 also stated that he will go to Hyderabad and stay there and instructed A-1 and A-2 to murder the deceased before he returned. A-4 also instructed A-1 and A-2 to murder the deceased as they have lost all their properties and became penniless.

4. On 3.9.1992, the fateful day, A-1 and A-2 in pursuance of their criminal conspiracy, lay in wait near the New Bridge at Pamarru. While A-1 concealed a Penakatti near umbilicus and covered the weapon with his shirt and towel, A-2 concealed an axe by concealing it near umbilicus and with his shirt and towel. A-1 was waiting near a shop at the slope and A-2 was waiting at the road near New Bridge, they found the deceased coming on a cycle from the village to the centre at about 8.45 a.m. and both the accused attacked him with Penakatti and axe. A-1 struck him with penakatti on his head, and A-2 also gave blows on his head with the axe and the de