JUDGMENT

Dr. ANAND, J.:—For an occurrence which took place on the night intervening the 31st May and 1st June, 1982, at about 1.00 a.m., in which one Iragana Gurava Reddy was murdered, six persons, namely, Dagumati Venkata Subba Reddy (A1); Chinta Pulla Reddy (A2); Balamreddi Pulla Reddy (A3); Gaddam Pulla Reddy (A4); Gaddam Panchala Reddy (A5) and Bade Rami Reddi (A6) were challaned and ultimately sent up for trial before the Additional, Sessions Judge, Nellore. The first charge against the accused was under Section 148, IPC. They were all convicted of the said charge and each of the accused was sentenced to two years R.I. The second charge against A1 was for an offence under Section 302, IPC. He was convicted for the said offence and sentenced to suffer imprisonment for life. The third charge was for an offence under Section 302/149, IPC against remaining accused persons. The conviction was recorded for the offence under Section 302/149, IPC against A2 to A6 and each one of them was sentenced to suffer imprisonment for life. Against their conviction and sentence all the accused-convicts appealed to the High Court. The High Court acquitted A3 and A6, but maintained the conviction and sentence of A1 for the offence under Section 302, IPC and altering the conviction of A2, A4 and A5 from the one under Sec. 302/149, IPC to the one under Section 302/34, IPC maintained the sentence of life imprisonment. Conviction and sentence for the offence under Section 148, IPC was, however, set aside. After the judgment of the High Court was delivered, it appears that A1 died. A2, A4 and A5 have filed this appeal, on special leave being granted.

2. Though generally speaking this Court does not reappreciate the evidence in an appeal, on special leave being granted, under Article 136 of the Constitution of India where two Courts have appreciated the evidence and recorded concurrent findings, but since the High Court acquitted A3 and A6, we have, with the assistance of learned counsel for the parties, ourselves appreciated the material evidence in the case, with a view to determine whether the conviction and sentence recorded against the three appellants is justified or not.

3. The First Information Report in this case, Ex. P-1, was lodged at 7.30 a.m. by PW1, son of the deceased. It was scribed by LW-9, who however was not examined at the trial. In the First Information Report, besides A1 to A6, 30 other persons A7 to A36, with their parentage, were also named as accused persons. During the investigation, however, PW1 in his statement recorded under Section 161, Cr.P.C. by the investigating officer, categorically asserted that he had not told the scribe that 30 persons A7 to A36, apart from A1 to A6 had also come armed to the house of the deceased at the time of occurrence. Even at the trial, PW1 mentioned that apart from A1 to A6, no other person was mentioned as an accused by him to the police. The statements of other witnesses recorded under Section 161, Cr.P.C. also implicated only A1 to A6 in the crime. The investigating officer, therefore, had challaned only A1 to A6 and sent them for trial.

4. It is the prosecution case, that earlier in the evening of 31-5-1982, Seshamma, PW8 was assaulted by some persons, belonging to the party of A1 in front of the house of A1 and on learning about the assault, the deceased along with his wife PW4, went to the house of A1 where A2 was also present to reprimand them for assaulting a lady. A1 and A2 took objection to the reprimand and threatened the deceased and PW4 that they would see "the end of the deceased". The deceased and his wife were told to leave and they went back to their house. Regarding the incident relating to the assault on PW8, a complaint was lodged with the Police and a constable PW 9 was deputed to go to the village to see that no further occurrence takes place in view of two factions in the village.

5. On the night of 31-5-1982, the wife of the deceased, PW4, went to the house of her son