JUDGMENT

B.P. Singh, J.-This appeal by special leave has been preferred by the wife of the deceased, who is said to have been murdered by respondents 1, 2 and others on January 9, 1992 at about 6.30 p.m. The appellant has impugned the judgment and order of the High Court acquitting the respondents 1 and 2 herein of the charge under Section 302 IPC and convicting them instead under Sections 326 and 324 IPC respectively. The aforesaid respondents shall be referred to hereinafter as A-1 and A-2. According to the appellant, the facts proved by the prosecution clearly established an offence under Section 302 IPC and therefore, the High Court was not justified in acquitting them of the charge under Section 302 IPC and convicting them under Section 324 IPC respectively.

2. The occurrence giving rise to the instant appeal is alleged to have taken place at about 6.30 p.m. on January 9, 1992. The case of the prosecution was that six persons including A-1 and A-2 way laid the deceased and assaulted him with knife, iron rods and sticks as a result of which, he succumbed to his injuries in the hospital. All the six accused A-1 to A-6 were tried by the Additional Sessions Judge, West Godavari Division, Eluru charged of offences under Sections 148 and 302 read with Section 149 IPC in Sessions Case No. 130 of 1992. A-1, A-2 and A-6 are brothers while accused A-3 to A-5 are alleged to be their associates. The trial court by its judgment and order of November 21, 1994 acquitted A-3 to A-6 of the charges levelled against them and found only A-1 and A-2 (respondents herein) guilty of the offence under Section 302 IPC for which it sentenced them to undergo imprisonment for life.

3. A-1 and A-2 preferred an appeal before the High Court of Judicature Andhra Pradesh at Hyderabad being Criminal Appeal No. 238 of 1995. The High Court by its judgment and order of July 3, 1996 acquitted A-1 and A-2 of the charge under Section 302 IPC but found them guilty of lesser offences. A-1 was found guilty of the offence under Section 326 IPC and sentenced to four years rigorous imprisonment while A-2 was found guilty of the offence under Section 324 IPC and sentenced to two years rigorous imprisonment. The impugned judgment of the High Court has been challenged by the wife of the deceased to seek the conviction of A-1 and A-2 under Section 302 IPC thereby seeking enhancement of their sentence A-1 and A-2 (respondents) on the other hand contend that the evidence on record is highly suspicious and doubtful and does not justify their conviction at all. Since an appeal has been preferred for enhancement of their sentence, they contend that this Court should consider the evidence on record and direct their acquittal since the evidence on record is unworthy of belief and does not prove the case of the prosecution.

4. In view of the contentions urged on behalf of the parties, we consider it necessary to appreciate the evidence on record since the appeal is wide open before us and not confined to the question of nature of offence or sentence.

5. The prosecution evidence in this case rests on the testimony of three alleged eye witnesses, namely, PWs 2, 3 and 4. The prosecution also relies upon the dying declaration made by the deceased to PW-1 as also the statement made to the Medical Officer, PW-13 when he was examined by her at the Narsapur Hospital. The second dying declaration forms part of the wound certificate prepared by PW-13 and has been marked as Ex. P-10.

6. The case of the prosecution is that on January 9, 1992 at about 6.30 p.m. the deceased and PW-1 were returning to their village Mangaliguntapalem from Narsapur. They were both coming on their bicycles and on the way they met Satyanarayana, PW-5. The deceased stopped and started talking to PW-5 while PW-1 proceeded ahead. After he had covered a distance of about 2 furlongs PW-4 G. Anil Kumar came from behind and told him that six persons were assaulting the deceased. After giving this information PW-4 proceeded ahe