Vinayak v. State of Maharashtra

, 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~ 779 A VINAYAK ETC . _v._ #### " 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 awarded 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 acquitted by the High Ccurt of the charge of<::nnspiracy under s. 302 read withs. 120B I.P.C. and accu~ed _S_ was not a party for the offence of 1nurder of Malan for which only accused nos. J, 6 and 7 were tried: [785E·F] 3. However, ihe ·conviction and sentence of imprisonment for life under S. 302 read withs'. 34 I.P.C awarded.to accused 6 is in order as there is sufficient evide~ce against him proving his guilt in respect of charge no. 4 framed regarding the n1urder of Malan beyond all reasonable doubt. The ~vidence of the approvr:r P .W, 1 and the retracted confession of accllsed 6 Exh. 138 with the corroborative evidence namely, the recover)' of the bloodstained razor and the rriedical eVidence of Dr. Suresh who conducted the autop'.\Y and deposeq_ that out of the ante-n1ortem injuries, injuries 1 to 7 co11ectivcly were sufficient to cause death in the ordinary course, conclusively prove the guilt of a.9cused 6. [786A·B; 785F-G; 786A] CRIMINAL' APPELLATE JURISDICTION : Criminal App~al Nos. 287 & 288 of 1980 ## l - · '· Appeals by Special leave from the judgment and Order dated the 27th July _8l',_ 8th A{i°g~sf; 1979 of the Bombay High Court in !I Cr). •Appeal Nos .• 7 of 1977. an<l 605 of 1978. ff ### • ' V!NAYAK _v._ STATE OF MAHARASHTRA _(Varadarajan,_ _J.)_ 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 Se%ions 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;? of 1977 was filed by Sitararn @ Sitya and Vinayak, accused 1 and 6 respectively, against their conviction under s. 302 read with s. 34 !.P.C. in respect of the murder of one' Malan, daughter of Kishan and the sentence of imprisonment for life' awarded to them. Criminal Appcaf 605 of 1978 1vas 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 qf the charge under s. 302 read with s. 34 I.P.C. in respect of !he murder of Malan and against their acquittal of the charge framed under s. 302 read withs. 120B !.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. Sessions Case 26 of 1977 is stated to be an off-shoot of what **is knowll** as· **the** **1** **'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 411.1974 in Manwath village, Prabhani district, Maharashtra State. Jn 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 Sbesbrao (P.W. !);during the period from A **B** c **D** **E** After hearing the learned counsel for the parties we allowed the appeal of Prakash, accused 5 and acquitted him and set aside bis conviction and the sentence awarded to him. So far as **D** Vinayak, accused 6 is concerned, we dismissed his appeal on 13.9.1984 for reason· to follow. Now proceed to record our **reasons.** **G** A1 B [.. ] ###### ' c, Et F. G - j _182_ SUPREME COURT REPORTS (1985] I S.C.R. 10.11.1975 to 1.1.1976 _in_ Babultara village, Prabhani district. Charge No. I framed _in_ this case was for criminal conspiracy under s. 302 read with s. 1208 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. !. entered into a criminal conspiracy to _commit_ murders of young girls ond 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. I 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 I 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 withs. 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 Parubai on or about 29.11.1975. The last charge No. 4 framed against accused !, 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 commited 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 l 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 l and,6 of charge No. I framed against them under s. 302 read with, s, J20B J.P.<;, _M_ stated earlier, Criminal Appeal 38 of ViNAYAK _v._ STATE OF MAHARASHTRA _(Varadarajan,_ J.) 783 of 1977 was filed by the State for enhancement of the sentence of imprisonment for life awarded to accused 1 and 6 in resper,t 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 LP .C. Thus the acquittal of accused I 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 I 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 I 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 flied any appeal in this Court against the High Court's judgment confirming his conviction and sentence awarded to hirn 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 fiiled only against accused 2,3,4 and 7 not against accused 1 and ~. 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 A B J c '' D I E F G bis arguments that the conviction of that accused alone for cons- ., piracy under s. 302 read withs. 120B I.P.C. is unsustainable in law as at least two persons are required for an offence of conspiracy under s. !20A l.P.C. and 4e relied upon a decision of this Court in _Topandas_ v. _State of Bombay'"_ in support of his contention. In (!). (1955) 2 S.C.R. 881, H II # A B ###### c D E F G H 784 SUPREME COURT REPORTS [1985) 1 S.C.R· that case the charge under s. 120B I.P.C. was framed against four named persons who had been arrayed as accused I to 4. The High Court acquitted accused 2 to 4 and convicted accused l 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 I and that accused 1 alone could not have fabricated that document. This Court allowed the appeal of accused I 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. J20A 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 cam 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 J.P.C. We repelled that submission of Mr. Rana, in view of the fact that those two accused I and 6 bad 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 I, 6 and 7. It was in view of this technical flaw th.at 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. I also was a party to the conspiracy the conviction of accused 5 alone of the charge of conspiracy under s. 3~2 read with s. 120B I.P.C. could be sustained. We were, therefore, not called upon to consider any such question. A' 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 confe~sion of accused 5. Those four pieces of evidence are : (I) recovery of the razor blade, article 54, persu ant 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 groop B like that of Malan; (2) recovery of the blood stained shirt, article 55, of accused 6 from his house; (3) eviden9e regarding the presep.c~ pf accuse\! ##### • _-i_ A B \ c (l D E D G H ##### • VINAYAKv. MAHARASHTRA _(Varadarajan,_ _J.)_ 785 6 along-with accused 7 and P,W. I 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 nnable 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 was found in the company of accused 7 and the approver P.W. I near·about the place of occurence as alleged by the prosecution before and after the murder of Malan. But the High Court accepted the evidence of the approver P.W. I against accused 6 as reliable and the jqdicial confession, Exh. 138 of accused 6 as being volun· tary 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.!'.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. I 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 medi· cal evidence of Dr. Suresh (P.W. 31) who had conducted autopsy on the body of Molan 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 injmy on the lower end of the vagina just at the mouth and he is of the opinion that all the 11 injuries were ante-mortem injuries which might have been caused by sharp cutting weapons, that it is possible that injuries 5 to 7 found on the forehead aQd ri11ht an<! left side of the pariekal eminance were _1_ A B ##### c D 1.E 786 SUPREME COURT JlEPORTS [1985] I S.C.R. caused by bard 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,_ #### ..