JUDGMENT:

V.S. SIRPURKAR, J.

1. Leave granted.

2. The appellant, Bavisetti Kameswara Rao original accused no. 1 (A- 1) has approached this Court challenging the judgment of the Andhra Pradesh High Court, confirming his conviction (accused no. 1) for an offence under Section 302 IPC.

3. Initially, as many as eight persons were tried by the Additional Sessions Judge (Fast Track Court) for various offences under Sections 147, 148 and 302 read with Section 149 etc. The allegation is that all the accused persons alongwith some others formed themselves into an unlawful assembly and in pursuance of the common object of that assembly, they committed murder of one Samudrala Pandu Rangarao @ Rayalam Rangadu. According to the prosecution, on 28th July 2007, at about 11 P.M., the deceased alongwith his friend Tamarapalli Subba Rao had visited mini lorry supply office of the first accused and he wanted to consume alcohol there. The first accused refused to let him have the alcohol there and on this, there was a wordy altercation in between the first accused and the deceased, and they also had the physical altercation with each other and in this melee, the first accused has sustained a wound on his hand. They were pacified by the people gathered there and at that juncture, both the first accused as well as the deceased sworn towards each other s life. The prosecution alleged that in pursuance of this, the first accused had a discussion with the second accused and with the other seven accused persons and hatched up a plan to do away the deceased and were waiting for an opportunity. On 30th July 2000, all the accused formed into an unlawful assembly in the mini lorry office of the first accused at about 10 P.M. in pursuance of their pre-plan. The first accused was armed with the screw driver and the second accused had a pen knife. At around 10.30 P.M. on that day, the deceased came there on his Yamaha Motor cycle bearing registration no. AP-37 A-7569 and on seeing the deceased, A-1 and A-2 abused him filthily. When the deceased questioned their behaviour, A-1 and A-2 in pursuance of their intention, attacked the deceased with their weapons, wherein, the first accused stabbed the deceased below the left side chest with screw driver causing him a deep bleeding injury. A-2 also attacked the deceased with his pen knife, but the deceased tried to protect himself. However, the deceased suffered two incised wounds on his palm.

4. It was the further case of the prosecution that the other accused persons also attacked the deceased and assaulted him with hands. The deceased somehow or the other, escaped when he was given a hot chase by all the accused. The deceased straightaway went to Bhimavaram II Town Police Station and reported the matter to the sub-inspector of police on duty, Sh. K.V.N. Vara Prasad, LW.23. Since the deceased required immediate medical help, he was tried to be taken to Government Hospital, Bhimavaram. However, in the way itself, the deceased breathed his last. Accordingly, an offence under Section 302 read with Section 34 was recorded vide Cr. No. 97/2000 by the LW.23. The investigations started and the accused came to be rounded up and on completion of the investigations, a charge sheet was filed against as many as eight accused persons, who were tried before the Additional Sessions Judge (Fast Track Court), Bhimavaram. The Additional Sessions Judge at Bhimavaram, however, convicted only A-1 and A-2 and convicted both of them for the offence under Section 302 while acquitting the rest of the accused persons. Both of them were sentenced to suffer rigorous imprisonment of life and also to pay fine of Rs.4,000/- in default, to suffer a further imprisonment for one year.

5. On appeal, however, the conviction of appellant (herein) was confirmed for an offence under Section 302 but A-2 was acquitted of that offence and was convicted for an offence under Section 32