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PETITIONER: VINAYAK ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT21/09/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1793            1985 SCR  (1) 779  1984 SCC  (4) 441        1984 SCALE  (2)417

ACT:      Criminal conspiracy-Conviction  and sentence  under  s. 302 I.P.C.  read with  s. 120B-Whether one of the accused be convicted for  criminal conspiracy  when  the  rest  of  the accused were  acquitted in State Appeal against acquittal of all-Retracted judicial  confession of  an accused,  reliance against another  accused, whether permissible when the other accused had been acquitted of the charge of conspiracy under s. 302  read with  s. 120B  and when  the  accused  who  has retracted from judicial confession was tried for the offence of murder- Code of Criminal Procedure Sections 164/306, 378- Corroborative evidence,  conviction can  be  found  on  such evidence.

HEADNOTE:      In Sessions  Case No.  26 of 1976, seven accused namely Sitarama  @   Sitya,  Sundera   @  Sundarayya,   Kishana   @ Kishanayya,  Gangarama  @  Gangayya,  Prakash,  Vinayak  and Shrirang were  charged and tried together for offences under section 302  read with  s. 120B  and also  under s. 302 read with s.  34 I.P.C.  Charge No. 1 was for criminal conspiracy under s. 302 read with s. 120B I.P.C. on the allegation that between first week of October, 1975 and 2nd January, 1976 at Babultara and Waghala villages all the seven accused and the approver P.W. 1 entered into a criminal conspiracy to commit murders  of  young  girls  and  women  in  the  vicinity  of Babultara village  by injuring  the victims  or  disfiguring their faces  in order  to make it appear that the accused in an earlier  case called  the Manwath  murders case  where 10 girls  and  women  were  murdered  during  the  period  from 14.11.1972 to 4.11.1974 in Manwath village were not the real culprits. Charges  2 to 4 were framed under s. 302 read with s. 34  I.P.C. alleging  that in  furtherance of their common intention, accused  1 to  3 committed the murder of Ashamati on or  about 10th  November, 1975,  accused 1 to 4 committed the murder  of Parubai  on or  about 29th November, 1975 and accused 1, 6 and 7 committed the murder of Malan on or about 1st January,  1976. The Sessions Judge on a consideration of the evidence  acquitted all  the seven  accused under charge No. 1;  all the  accused under charges 2 and 3 and accused 7 under charge  no. 4,  but convicted  accused 1  and 6  under

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charge no.  4 and sentenced them to undergo imprisonment for life under  s. 302  read with  s. 34 I.P.C. Aggrieved by the conviction and  sentence accused  1  and  6  filed  Criminal Appeal No.  7 of 1977 in the High Court of Bombay, while the State  preferred   Criminal  Appeal   No.  38  of  1977  for enhancement of  the sentence  awarded to  them under section 377 Cr.  P.C. The State also preferred under section 378 Cr. P.C. Criminal  Appeal No.  605 of 1978 against the acquittal of accused  2, 34,  5 and  7 of charge no. 1 framed under s. 302 read with s. 120B. There 780 being no  further appeal by the State against acquittal; the acquittal of  accused 1 and 6 of charge no. 1 and of accused 1 to 3 of charge no. 2 and of accused 1 to 4 of charge no. 3 became final.      The High  Court considered  the evidence,  in the case, and dismissed  Criminal Appeals  Nos.  7  of  1977  and  the connected Criminal  State Appeal  No. 38 of 1977 and thereby confirmed the conviction and the sentence awarded to accused Nos. 1  and 6.  The High  Court, however  accepted the State Appeal No.  605 of  1978 in part and convicted accused 5 and sentenced him  to imprisonment  for life under s. 302 I.P.C. read with  s. 120B.  Hence the  present appeals by accused 5 and 6 only, accused no. 1 not preferring an appeal.      Allowing the  appeal No.  288 of  1980 of accused no. 5 and dismissing appeal no. 287 of 1980, the Court. ^      HELD: 1.  In view  of the fact (a) that accused 1 and 6 had been  acquitted by the trial court of charge no. 1, that is, criminal  conspiracy under  s. 120B  read  with  s.  302 I.P.C. (b)  that no State Appeal against their acquittal had been preferred  and (c)  that accused  5 was  not a party to charge no.  4 which was framed against accused nos. 1, 6 and 7 the  conviction and  sentence of accused no. 5 by the High Court is unsustainable in law. [783FG]      Topandas v.  State of  Bombay [1955] 2 SCR 881 referred to.      2. The retracted judicial confession of accused 5 could not be relied upon against accused 6 in this case in view of the fact that accused 6 who had been tried alongwith accused 5 had  been acquitted  by the  High Court  of the  charge of conspiracy under s. 302 read with s. 120B I.P.C. and accused 5 was  not a  party for  the offence  of murder of Malan for which only accused nos. 1, 6 and 7 were tried. [785E-F]      3. However, the conviction and sentence of imprisonment for life  under s.  302 read  with s.  341 I.P.C  awarded to accused 6  is in  order  as  there  is  sufficient  evidence against him  proving his  guilt in  respect of  charge no. 4 framed regarding  the murder  of Malan beyond all reasonable doubt. The evidence of the approver P.W. 1 and the retracted confession of  accused 6  Exh. 138  with  the  corroborative evidence namely,  the recovery of the bloodstained razor and the medical evidence of Dr. Suresh who conducted the autopsy and deposed  that out of the antemortem injuries, injuries 1 to 7  collectively were  sufficient to  cause death  in  the ordinary course,  conclusively prove the guilt of accused 6. [786A-B; 785F-G; 786A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 287 & 288 of 1980      Appeals by  Special leave  from the  judgment and Order dated the  27th July  & 8th  August, 1979 of the Bombay High

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Court in Crl. Appeal Nos. 7 of 1977 and 605 of 1978. 781      V.S. Desai,  Mrs. J.  Wad and Miss Aruna Mathur for the Appellants.      O.P. Rana,  K. V.  Sree Kumar  and M.N, Shroff, for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN, J.  These appeals  of Vinayak and Prakash, accused 6  and 5 respectively in Sessions Case 26 of 1976 on the file  of the  Sessions Judge, Prabhani by special leave, are directed  against the  judgment of the Bombay High Court in Criminal  Appeals 7  of 1977  and 605  of 1978.  Criminal Appeal 7  of 1977  was filed by Sitaram @ Sitya and Vinayak, accused 1 and 6 respectively, against their conviction under s. 302  read with  s. 34  I.P.C. in respect of the murder of one  Malan,   daughter  of   Kishan  and   the  sentence  of imprisonment for  life awarded  to them. Criminal Appeal 605 of 1978  was filed  by the  State of Maharashtra against the acquittal of  Sundar  @  Sundarayya,  Kishan  @  Kishanayya, Gangaram @  Gangayya, Prakash and Shrirang, accused 2, 3, 4, 5 and 7 respectively of the charge under s. 302 read with s. 34 I.P.C.  in respect  of the  murder of  Malan and  against their acquittal  of the charge framed under s. 302 read with s. 120B  I.P.C. The  State  of  Maharashtra  filed  Criminal Appeal 38  of  1977  for  enhancement  of  the  sentence  of imprisonment for  life awarded  to accused  1 and  6 by  the trial court.      After hearing  the learned  counsel for  the parties we allowed the  appeal of  Prakash, accused 5 and acquitted him and set  aside his  conviction and  the sentence  awarded to him. So far as Vinayak, accused 6 is concerned, we dismissed his appeal on 13.9.1984 for reason to follow. Now proceed to record our reasons.      Sessions Case  26 of  1977 is stated to be an off-shoot of what  is known  as the  ’Manwath murders  case’ in  which Prakash’s father  Uttamrao Barhate  and his permanently kept concubine Rukmanibai  and  13  others  were  tried  for  the murders of  10  girls  and  women  during  the  period  from 14.11.1972  to   4  11.1974  in  Manwath  village,  Prabhani district, Maharashtra  State. In  the case  the above  seven accused were  tried for three murders of two young girls and a women alleged to have been committed them and the approver Sheshrao (P.W. 1) during the period from 782 10.11.1975  to   1.1.1976  in  Babultara  village,  Prabhani district. Charge  No. 1 framed in this case was for criminal conspiracy under  s. 302  read with  s. 120B  I.P.C. on  the allegation that  between the  first week of October 1975 and 2.1.1976 at  Babultara and  Waghala villages,  all the seven accused and  the approver  P.W. 1.  entered into  a criminal conspiracy to commit murders of young girls and women in the vicinity of  Babultara village by inflicting injuries on the private parts  of the  victims or disfiguring their faces in order to  make it  appear that  the accused  in the  Manwath murders case are not the real culprits and that in pursuance of that conspiracy these seven accused and the approver P.W. 1  committed  three  murders  of  Ashamati,  aged  9  years, Parubai, aged 40 years and Malan, aged 12 years in Babultara village. Charge  No. 2  framed against  accused 1  to 3  was under s.  302 read  with s. 34 I.P.C. On the allegation that in pursuance  of the  conspiracy and in furtherance of their common intention they committed the murder of Ashamati on or about 10.11.1975. Charge No. 3 framed against accused 1 to 4 was under  s. 302  read with  s. 34 I.P.C. on the allegation that in  pursuance of  the conspiracy  and in furtherance of

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their common  intention they committed the murder of Parubai on or about 29.11.1975. The last charge No. 4 framed against accused 1,  6 and  7 was under s. 302 read with s. 34 I.P.C. on the allegation that in pursuance of the conspiracy and in furtherance of  their common  intention they  committed  the murder of  Malan on  or about  1.1.1976. The accused pleaded not guilty  to the charges framed against them. The Sessions Judge found,  on a  consideration of  the evidence,  all the seven accused  not guilty of the charge of conspiracy framed under s. 302 read with s. 120B I.P.C. and acquitted them. He found accused  1 to  3 not  guilty of  charge No.  2  framed against them  in respect  of  the  murder  of  Ashamati  and accused 1  to 4  not guilty  of charge  No, 3 framed against them in respect of the murder of Parubai and acquitted them. He found accused No. 7 not guilty but accused 1 and 6 guilty of charge No. 4 framed against them in respect of the murder of Malan and acquitted accused 7 and convicted accused 1 and 6 and  sentenced them to undergo imprisonment for life under s. 302 read with s. 34 I.P.C.      The State did not file any appeal against the acquittal of accused 1 and 6 of charge No. 1 framed against them under s. 302  read with  s. 120B I.P.C. As state earlier, Criminal Appeal 38 of 783 of 1977  was filed  by the  State  for  enhancement  of  the sentence of   imprisonment for life awarded to accused 1 and 6 in  respect of the murder of Malan and Criminal Appeal 605 of 1978 against the acquittal of accused 2, 3, 4, 5 and 7 of charge No.  1 framed  under s.  302 read with s. 120B I.P.C. Thus the acquittal of accused 1 and 6 of charge No. 1 framed against them  under s.  302 read  with s. 120B I.P.C. and of accused 1  to 3  of charge No. 2 in respect of the murder of Ashamati and of accused 1 to 4 of charge No. 3 in respect of the murder of Parubai became final.      The High  Court considered  the evidence  and dismissed Criminal  Appeal   38  of   1977  filed  by  the  State  for enhancement of the sentence of imprisonment for life awarded to accused  1 and 6 for the murder of Malan as also Criminal Appeal 7  of 1977  filed by  accused 1  and 6  against their conviction and  the sentence  awarded  to  them.  The  first accused Sitaram  @ Sitya  has not  filed any  appeal in this Court against  the  High  Court’s  judgment  confirming  his conviction and  sentence awarded  to him  by the trial court under s. 302 read with s. 34 I.P.C. for the murder of Malan. Therefore, his  conviction and  sentence awarded to him have become final.  Accused 5  and 6  only  have  filed  Criminal Appeal  288   of  1980  and  Criminal  Appeal  287  of  1980 respectively against  the conviction  of accused  5 and  the sentence of  imprisonment for life awarded by the High Court under s.  302 read  with s. 120B I.P.C. and the confirmation of the  conviction and  sentence awarded to accused 6 by the trial  court   under  s.   302  read   with  s.   34  I.P.C. respectively.      In view  of the  acquittal of  all the seven accused by the trial  court of  charge No.  1 framed  under s. 302 read with s.  120B I.P.C.  and  the  High  Court’s  dismissal  of Criminal Appeal No. 605 of 1978 filed against that acquittal which, as  stated earlier,  was filed  only against  accused 2,3,4 and  7 not  against accused  1 and  6, in so far as it related to  accused 2,  3, 4 and 7, Mr. V. S. Desai, learned senior counsel  appearing for  Prakash, accused 5, contended in his  arguments that  the conviction of that accused alone for conspiracy  under s.  302 read  with s.  120B I.P.C.  is unsustainable in  law as  at least  two persons are required for an  offence of  conspiracy under  s. 120A  I.P.C. and he

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relied upon a decision of this Court in Topandas v. State of Bombay(1) in support of his contention. In 784 that case the charge under s. 120B I.P.C. was framed against four named  persons who  had been arrayed as accused 1 to 4. The High  Court acquitted  accused  2  to  4  and  convicted accused 1  alone of  that charge  and sentenced him, holding that  he   and  some   others  had  conspired  together  and fabricated the  deed of  assignment put forward by accused 1 and that  accused 1  alone could  not have  fabricated  that document. This Court allowed the appeal of accused 1 and set aside his  conviction under  120B I.P.C.  holding  that  the conviction of  one of the accused alone was unsustainable in law having  regard to  the requirement  of s.120A I.P.C. Mr. O.P. Rana  learned senior counsel appearing for the state of Maharashtra sought to support the judgment of the High Court in this  case against accused 5 in view of the conviction of accused 1  and 6  for the  murder of Malan under s, 302 read with s.  34 I.P.C.  We repelled that submission of Mr. Rana, in view  of the fact that those two accused 1 and 6 had been acquitted by  the trial court of charge No. 1 farmed against them under  s. 302  read with  s. 120B  I.P.C. and no appeal against their acquittal had been filed in the High Court and also the  fact that accused 5 was not a party to charge No.4 which was  framed only against accused 1, 6 and 7. It was in view of  this technical  flaw that  we allowed the appeal of accused 5  without going  into the  evidence  regarding  the merits of  the case  against him.  Mr. Rana did not draw our attention in the course of his arguments to the fact that in charge No.  1 even  the approver  P.W. 1  is alleged to have conspired with  the seven  accused  to  commit  these  three murders or contend that in view of that circumstance and the finding of the High Court that the approver  P.W. 1 also was a party  to the conspiracy the conviction of accused 5 alone of the  charge of  conspiracy under s. 302 read with s. 120B I.P.C. could  be sustained.  We were,  therefore, not called upon to consider any such question.      As regards  accused 6  in the  High Court  reliance was placed by the prosecution on four pieces of evidence besides the evidence  of the  approver  P.W.  1  and  the  retracted confession of  accused 5. Those four pieces of evidence are: (1) recovery of the razor blade, article 54, persuant to the confessional statement  of accused  6, admitted under s. 27, Evidence Act.  The blade  was found  by the Serologist to be stained with  human blood of group B like that of Malan; (2) recovery of  the blood stained shirt, article 55, of accused 6 from  his house;  (3) evidence  regarding the  presence of accused 785 6 along-with  accused 7  and P,W.  1 near about the scene of offence before  and after  the commission  of the  murder of Malan. It  is the case of the prosecution that Shivram, P.W. 45 saw accused 6 under a vad tree and Abasaheb, P.W. 44, saw him in  the rivulet;  and (4) retracted judicial confession, Exh. 138 of accused 6.      The High  Court found  on the evidence of Munjebi, P.W. 50 and  Hanumant Salunke,  Sub-Inspector of  Police P.W. 53, that the blood-stained shirt, Art. 54 was recovered from the house of  accused  6.  But  the  Serologist  was  unable  to determine the  origin of  the blood  found on Art. 55 due to its disintegration.  Therefore, the High Court did not place any reliance  on this  circumstance, namely, recovery of the blood-stained shirt,  Art. 55  from the  house of accused 6. The High  Court found  that the  evidence of  P.W. 44 and 45 does not  establish beyond  reasonable doubt  that accused 6

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was found  in the company of accused 7 and the approver P.W. 1 near-about  the place  of occurrence  as  alleged  by  the prosecution before  and after  the murder  of Malan. But the High Court  accepted the  evidence of  the approver  P.W.  1 against accused  6 as  reliable and the judicial confession, Exh. 138  of accused  6 as  being voluntary and reliable and (both) corroborated by other evidence and it acted also upon the retracted  judicial confession  of accused  5 in holding that the guilt of accused 6 for the murder of Malan had been proved beyond  all reasonable  doubt. We  are of the opinion that the  retracted judicial  confession of  accused 5 could not be relied upon against accused 6 in this case in view of the fact that accused 6 who had been tried alongwith accused 5 had  been acquitted  by the  High Court  of the  charge of conspiracy under s. 302 read with s. 120B I.P.C. and accused 5 was  not charged  for the  offence of  murder of Malan for which only  accused 1,  6 and  7 were tried. The evidence of the approver  P.W. 1 and the retracted confession of accused 5, Exh.  138  are  amply  corroborated  by  other  evidence, namely, recovery of the blood-stained razor, Art. 54 and the medical evidence  of Dr.  Suresh (P.W. 31) who had conducted autopsy on  the body  of Malan at 4.15 p.m. on 2.1.1976. The Doctor found  9 incised  wounds on various parts of the body of Malan besides a small incised injury on the right wall of the vagina  outside in the middle and a small incised injury on the  lower end  of the vagina just at the mouth and he is of the  opinion that  all the  11 injuries  were  antemortem injuries which  might have  been  caused  by  sharp  cutting weapons, that  it is  possible that injuries 5 to 7 found on the forehead  and  right  and  left  side  of  the  parietal eminance were 786 caused by  hard and blunt objects, that death must have been instantaneous and  that injuries  1 to  7 collectively  were sufficient in  the ordinary course of nature to cause death. In these  circumstances we  found that  there is  sufficient evidence against  accused 6  proving his guilt in respect of charge No. 4 framed regarding the murder of Malan beyond all reasonable doubt  and that he had been rightly convicted and sentenced to imprisonment for life under s. 302 read with s. 34 I.  P. C. Accordingly, we allowed the Criminal Appeal 288 of 1980 and acquitted Prakash, accused 5 and directed him to be set  at liberty  forthwith and  dismissed Criminal Appeal 287 of  1980 filed by accused 6 and confirmed the conviction of accused  6 and  the sentence awarded to him by the courts below. S. R.                      Civil Appeal No. 288/1980 allowed                             and Civil Appeal No. 287 of 1980                                                   dismissed, 787