IMPORTANT POINTS
1. To convict on a charge of Criminal conspiracy to murder at least two persons are required to be convicted.
2. Retracted confession of one accused cannot be used against another accused if both are not charged under same provisions.

JUDGMENT

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 Indian Penal Code 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 Indian Penal Code in respect of the murder of Malan and against their acquittal of the charge framed under section 302 read with section 120B Indian Penal Code. 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.

2. 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 reasons to follow. Now we proceed to record our reasons.

3. Sessions Case 26 of 1977 is stated to be an off-shoot of what is known as the ‘Manwath murders case in which Prakashs 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 this case the above seven accused were tried for three murders of two young girls and a woman alleged to have been committed by them and the approver Shesbrao (P.W.l) during the period from 10-11-1975 to 1-1-1976 in Babultara village. Prabhani district. Charge No. I framed in this case was for Criminal conspiracy under section 302 read with section 120B Indian Penal Code 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 section 302 read with section 34 Indian Penal Code 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 section 302 read with section 34 Indian Penal Code 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 1, 6 and 7 was under section 302 read with section 34 Indian Penal Code 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 gui1tv 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 Indian Penal Code and acquitted them. He found accused I to 3 not guilty of