LexVINAYAK ETC. versus STATE OF MAHARASHTRA
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• , • 779 A VINAYAK ETC . v. STATE OF MAHARASHTRA September 21, 1984 [S. MuRTAZA FAZAL Au, A. VARADARAJAN AND SABYASACH! MuKHARJT, JJ.] Criminal conspi,.acy-Conviction and sentence under s. 302 T.P.C. read withs. 120B-Whether one of the accused be convicted for criminal conspiracy when the rest of the accused were acquitted in State Appeal againsr acquillal of all-Retracted judicial confession of an accused, reliance against another accu~ed, whether permis5ible when the other accused had been acquitted of the charge of conspiracy under s. 302 read with :r. 120B and when the accused who haj retracted from judicial confession was tried for the offence ofmurder- Code of Criminal Procedure Sections 164/306, 378-Corroboratire evidence, conviction can be found on such evidence. In Sessions Case No. f6 of 1976, seven accused namely Sitarama@ Sitya, Sundera@ Sundarayya, Kishana @ Kishanayya, Gangarama@ Gangayya, Prakash, Vina yak and Shrirang we1 e charged and tried. together for offences under section 302 read withs. 120B and also under s. 302 read withs. 341.P.C. Charge No. 1 was for criminal conspiracy under s, 302 read with 1;. 120B I.P.C. on the allegation that between first week of October, 1975 and 2od Jaunary, 1976 at Babuitara 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 bv 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 1nurdered 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 considefation of the evidence acquittted all the seven accused under charge No. 1; all the accused under charges 2 and 3 and accused 1 under charge no. 4, but convicted accused 1 and 6 under charge no. 4 and sentenced them to undergo imprisonment for life under s. 302 read with s. 34 l.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 upder section 377 Cr. P. C. The State also preferred under section 378 Cr. P. C. Crimirial Appeal No. 605 of 1978 against the acquittal of accused 2. 34, ,5 and 7 0f char~e no. l framed under s. 302 read with s. 120B, Tl>Qf~ " c E· F G H A c. Dt E F 0 780 SUPREME COURT REPORTS (1985] I S.C.R. being no further appeal by the State against acquittal; the acquittal of accused 1 and 6 of charge no. 1 and of accused J to 3 of charge no. 2 and of accused 1to4 of charge no. 3 became final. The High Court considered the evidence, in the case, and dismissed Criminal Appeals Nos. 7of1977 and the connected Criminal State Appeal No. 38 of 1977 and thereby confirmed the conviction and the sentence awar- ded to accused Nos. 1 and 6. The High Court, however accepted the State Appeal No. 605of1978 in part and convicted accused 5 and sentenced him to imprisonment for life under s. 302 l.P.C. read withs. 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 qf the fact (a) that accused 1 and 6had been acquitted by the trial court of charge no. 1, that is, criminal conspiracy under s. 120B read withs. 302 LP.C. !b) that no Stale Appeal against their acQuittal bad bfen preferred and (c) that accused 5 was not a part:Y to charge no. 4 which was framed ag:iinst accused ilos. 1, 6 and 7 the conviction and sentence of acc;se<l no. 5 by the High Court is unsustainable in law. [783FG] Topandas v. State of Bombay f.1955] 2 SCR 881 referred to. 2. The retracted judicial confession of accused 5 could not be relied uPon against accused 6 in this ca~e in view of the fact that accUscd 6who had been tried al0ngwith a'C~used 5 had been acq
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