N 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 Court in Crl
Appeal Nos 7 of 1977 and 605 of 1978
781 VS Desai Mrs J Wad and Miss Aruna Mathur for the Appellants
OP Rana K V Sree Kumar and MN 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 section 302 read with section 34 IPC 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 section 302 read with section 34 IPC in respect of the murder of Malan and against their acquittal of the charge framed under section 302 read with section 120B IPC
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 1391984 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 14111972 to 4 111974 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 PW 1 during the period from 782 10111975 to 111976 in Babultara village Prabhani district
Charge No 1 framed in this case was for criminal conspiracy under section 302 read with section 120B IPC on the allegation that between the first week of October 1975 and 211976 at Babultara and Waghala villages all the seven accused and the approver PW 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 PW 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 section 302 read with section 34 IPC
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 10111975
Charge No 3 framed against accused 1 to 4 was under section 302 read with section 34 IPC on the allegation that in pursuance of the conspiracy and in furtherance of their common intention they committed the murder of Parubai on or about 29111975
The last charge No 4 framed against accused 1 6 and 7 was under section 302 read with section 34 IPC 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 111976
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 section 302 read with section 120B IPC 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 section 302 read with section 34 IPC
The State did not file any appeal against the acquittal of accused 1 and 6 of charge No 1 framed against them under section 302 read with section 120B IPC
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 section 302 read with section 120B IPC Thus the acquittal of accused 1 and 6 of charge No 1 framed against them under section 302 read with section 120B IPC 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 section 302 read with section 34 IPC 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 section 302 read with section 120B IPC and the confirmation of the conviction and sentence awarded to accused 6 by the trial court under section 302 read with section 34 IPC respectively
In view of the acquittal of all the seven accused by the trial court of charge No 1 framed under section 302 read with section 120B IPC 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 234 and 7 not against accused 1 and 6 in so far as it related to accused 2 3 4 and 7 Mr V section Desai learned senior counsel appearing for Prakash accused 5 contended in his arguments that the conviction of that accused alone for conspiracy under section 302 read with section 120B IPC is unsustainable in law as at least two persons are required for an offence of conspiracy under section 120A IPC and he relied upon a decision of this Court in Topandas vs State of Bombay1 in support of his contention
In 784 that case the charge under section 120B IPC 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 IPC holding that the conviction of one of the accused alone was unsustainable in law having regard to the requirement of s120A IPC Mr OP 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 section 34 IPC 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 section 302 read with section 120B IPC 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 No4 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 PW 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 PW 1 also was a party to the conspiracy the conviction of accused 5 alone of the charge of conspiracy under section 302 read with section 120B IPC 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 PW 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 section 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 PW 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 PW 45 saw accused 6 under a vad tree and Abasaheb PW 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 PW 50 and Hanumant Salunke Sub Inspector of Police PW 53 that the blood stained shirt article 54 was recovered from the house of accused 6
But the Serologist was unable to determine the origin of the blood found on article 55 due to its disintegration
Therefore the High Court did not place any reliance on this circumstance namely recovery of the blood stained shirt article 55 from the house of accused 6
The High Court found that the evidence of PW 44 and 45 does not establish beyond reasonable doubt that accused 6 was found in the company of accused 7 and the approver PW 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 PW 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 section 302 read with section 120B IPC 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 PW 1 and the retracted confession of accused 5 Exh 138 are amply corroborated by other evidence namely recovery of the blood stained razor article 54 and the medical evidence of Dr Suresh PW 31 who had conducted autopsy on the body of Malan at 415 pm on 211976
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 section 302 read with section 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


Summary:
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 section 120B and also under section 302 read with section 34 IPC Charge No 1 was for criminal conspiracy under section 302 read with section 120B IPC 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 PW 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 14111972 to 4111974 in Manwath village were not the real culprits
Charges 2 to 4 were framed under section 302 read with section 34 IPC 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 charge No 4 and sentenced them to undergo imprisonment for life under section 302 read with section 34 IPC 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
The State also preferred under section 378 Cr
PC Criminal Appeal No 605 of 1978 against the acquittal of accused 2 34 5 and 7 of charge No 1 framed under section 302 read with section 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 section 302 IPC read with section 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 section 120B read with section 302 IPC 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 vs State of Bombay 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 section 302 read with section 120B IPC 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 section 302 read with section 341 IPC 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 PW 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