Holding

A sole accused cannot be convicted under s.120B IPC and a retracted confession of one accused cannot be used against another acquitted of conspiracy, while the murder conviction of accused 6 is upheld on corroborative evidence.

Summary

Seven persons were tried for a series of murders allegedly committed as part of a criminal conspiracy under s.302 read with s.120B IPC, and for murder under s.302 read with s.34 IPC. The trial court acquitted all of them of the conspiracy charge but convicted two of them (accused 1 and 6) for the murder of Malan. The High Court upheld those murder convictions but also convicted accused 5 (Prakash) of conspiracy, sentencing him to life imprisonment. On appeal, the Supreme Court held that a conviction under s.120B IPC cannot stand when the only remaining accused is alone, and that a retracted confession of one accused cannot be used against another who was acquitted of conspiracy. However, the Court found sufficient corroborative evidence – including forensic findings, approver testimony and a retracted confession – to uphold the murder conviction of accused 6. Consequently, the Court acquitted accused 5 and confirmed the conviction and sentence of accused 6.

Issues considered

Whether a person can be convicted of criminal conspiracy under s.120B IPC when all other alleged conspirators have been acquitted.
Whether a retracted judicial confession of one accused may be used against another accused who was acquitted of the conspiracy charge.
Whether the evidence presented was sufficient to sustain the conviction of accused 6 for murder under s.302 read with s.34 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 306, s. 378
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 120B, s. 302, s. 34

Subjects

criminal conspiracys.120B IPCmurders.302 IPCs.34 IPCretracted confessionapprover testimonycorroborative evidenceappeal

Judgment

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
c
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 E·
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 F
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
G
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~ H
780 SUPREME COURT REPORTS (1985] I S.C.R.
A 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.

c. 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
•
Dt
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
•
E 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
F 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 blood-

l
stained 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]
0
CRIMINAL' APPELLATE JURISDICTION : Criminal App~al Nos.
287 & 288 of 1980
· · '· 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 A
• Appellants .
O.P. Rana, K. V. Sree Kumar and M.N, Shroff, for the
Respondent.

The Judgment of the Court was delivered by B

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 c
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, D
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 E
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
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.

Sessions Case 26 of 1977 is stated to be an off-shoot of what
1
is knowll 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 G
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
182 SUPREME COURT REPORTS (1985] I S.C.R.
A1 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
B. 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
c, 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
Et
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
F. 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
G
accused 7 and convicted accused 1 and 6 and sentenced them
•j 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 A
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 B
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
J c
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'
'' D
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 E
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. F
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 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
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 for-
B ward by accused I and that accused 1 alone could not have fabri-
cated 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
c 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
D 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 with-
out going into the evidence regarding the merits of the case
E 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
-i
circumstance and the finding of the High Court that the approver
F 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
G 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\!
H
VINAYAKv. MAHARASHTRA (Varadarajan, J.) 785

6 along-with accused 7 and P,W. I near about the scene of offence A
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.
B
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,
c
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
(l
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
D
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 E
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 D
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
- 1
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 G
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
H
786 SUPREME COURT JlEPORTS [1985] I S.C.R.
A 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 •
B 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
c 1980 filed by accused 6 and confirmed the conviction of accused 6
and the sentence awarded to him by the courts below.

•
D
S. R. Civil Appeal No. 288/1980 allowed
and Civil Appeal No. 287 of 1980 •
1.E dismissed,

..