(Civil) No. 548 of 1987.

(Under Article 32 of the Constitution of India).

M.C. Dhingra for the Petitioners.

Kapil Sibal, K.G. Bhagat, A.K. Ganguli, Ms. Kamini Jaiswal, 664 Ms. Aruna Mathur, A. Mariarputham, Harminder Lal and Naresh K. Sharma for the Respondents.

The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.

The petitioners are carpenters 1st and 2nd grade employed at the Wood Working Centre of the Himachal Pradesh State Handicrafts Corporation (the "Corpo ration").

They are termed as daily rated employees.

In this petition under Article 32 of the Constitution, they are seeking enforcement of their fundamental right to have "equal pay for equal work".

They demand payment in terms paid to their counterparts in regular services.

They want the same pay of the regular employees as carpenters or in the alternative, the minimum wages prescribed by the Deputy Commissioner for like categories of workmen.

They also seek regularisation of their services with the benefits of pen sion, gratuity etc.

The Corporation has resisted the petitioners ' claim.

The case of the Corporation is that the unit where the petition ers are working is a factory registered under the Factories Act.

The petitioners are treated as industrial workmen and .are given all benefits due to them under the various labour legislations.

The Government has not fixed the mini mum wages payable to the petitioners engaged in the Corpora tion or other like industries, but the Corporation has adopted the minimum wages payable for similar work in the construction industry.

They are being paid the same wages as are payable to carpenters, painters and carpenters ' helpers engaged in the construction industry.

They are given bonus under the Bonus Act and provident fund benefits under the Employees ' Provident Fund Act.

It is also stated that the petitioners are supplied with the necessary tools for carry ing out their work and also working uniforms like aprons and overalls.

The Corporation has clearly stated that there are no regular employees of the petitioners ' categories in its establishment and, as such, the question of payment to the petitioners, the pay admissible to regular employees does not arise.

A little more information about the purpose and object of the Corporation would be useful for proper understanding of the case.

The Corporation is a company which has been incorporated under the .

The main object of the Corporation as seen from the Memorandum of Associa tion is to preserve the traditional arts and crafts and also to popularise handicrafts and handloom items 665 in the State of Himachal Pradesh and other parts of the country and abroad.

In order to achieve this primary objec tive, the Corporation gives training to artisans, weavers and craftsmen in various traditional arts and crafts.

During the period of training, the trainees are paid a stipend by the Corporation.

Upto 31st March, 1987, the Corporation has imparted training to as many as 1662 persons in different areas like carpet weaving, handloom weaving, painting, metal crafts, wood carving, etc.

Apart from giving training, the Corporation also ensures marketing support to the artisans and craftsmen by purchasing their products at remunerative prices and sell them through the marketing network of the Corporation.

It is thus a service oriented organisation helping the village artisans and craftsmen to produce and market their products on remunerative prices.

It is said that the village artisans and craftsmen make different items on a piece rate basis and in some cases, they execute the work in their own homes.

The financial aspect of the Corporation is stated to be not encouraging, and indeed, it is disappointing.

It has suffered huge loss and the total losses accumulated hitherto is Rs.69.77 lakhs.

Nonetheless, for the purpose of preserv ing and promoting traditional arts and crafts, the Corpora tion has been kept alive.

But to avoid or minimise further loss, it is stated that the Corporation has reduced its overheads and maintained only the administrative staff in the production centers at different parts of the State and no permanent craftsmen are employed.

With these facts, we may now turn to the principle upon which the petitioners ' case is rested.

The principle of "equal pay for equal work" is not one of the fundamental rights expressly guaranteed by our Constitution.

The princi ple was incorporated only under Article 39(d) of the Consti tution as a Directive Principle of State Policy.

Perhaps, for the first time, this Court in Randhir Singh vs Union of India, ; has innovated that it is a constitu tional goal capable of being achieved through constitutional remedies.

There the Court pointed out that that principle has to be read into Article 14 of the Constitution which enjoins the State not to deny any person equality before the law or the equal protection of the law and also to Article 16 which declares that there should be equality of opportu nity for all citizens in matters relating to employment or appointment to any office under the State.

Randhir Singh case was concerned with a driver constable in the Delhi Police Force under the Delhi Administration.

He claimed equal salary for equal work at that of other drivers.

The Court found that the petitioner therein performed the same func 666 tions and duties as other drivers in the service of Delhi Administration.

The Court, therefore, directed the Central Government to fix the pay scale of the petitioner on par with his counterparts doing identical work under the same employer.

In the immediate aftermath of the decision in Randhir Singh case, there were bumper cases filed in this Court for enforcement of the right to "equal pay for equal work", perhaps little realising the in built restrictions in that principle.

It may not be necessary here to refer to all those decisions since almost all of them have been consid ered and explained in the recent two decisions to which one of us was a party (K. Jagannatha Shetty, J.).

Reference may be made to: (i) State of U.P. vs J.P. Chaurasia, ; and (ii) Meva Ram Kanojia vs All India Institute of Medical Sciences and Anr., ; In Chaurasia case the question arose whether it was permissible to have two different pay scales in the same cadre of Bench Secre taries of the Allahabad High Court who were for all practi cal purposes performing similar duties and having same responsibilities.

The Court held that the principle of "equal pay for equal work" has no mechanical application in every case of similar work.

Article 14 permits reasonable classification rounded on rational basis.

It is, therefore, not impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority.

It was pointed out that in service, merit or experience could be the proper basis for classification to promote efficiency in administration and he or she learns also by experience as much as by other means.

Apart from that, the Court has expressly observed that the higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues may also be allowed.

Meva Ram Kanojia is the most recent decision which has exhaustively dealt with all the principles bearing on the question of equal pay for equal work in the light of all the previous decisions of this Court.

There the petitioner was a "Hearing Therapist" in the All India Institute of Medical Sciences.

He claimed pay scale admissible to "Senior Speech Pathologist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist", and "Speech Pathologist".

His case was based on the allegations that he was discharging same duties and performing similar functions as "Senior Speech Therapist", "Senior Physiotherapist", "Senior Occupa tional Therapist", "Audiologist" and "Speech Pathologist".

But the Court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services.

It was also held 667 that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned.

If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales.

Reference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers (Recognised) vs Union of India, ; There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and Officers above them in Ministry of Finance.

The Court while rejecting the claim expressed the view (at 100): "But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility.

Functions may be the same but the responsibilities make a difference.

One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.

So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of dif ferentiation, such differentiation will not amount to discrimination.

It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution.

But it follows naturally that equal pay for unequal work will be a negation of that right." Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for further innovation.

In the light of the aforesaid principles, we may now consider whether the equality claims of the petitioners could be allowed.

We have carefully perused the material on record and gave our anxious consideration to the question urged.

From the averments in the pleadings of the parties it will be clear that the Corporation has no regularly employed carpenters.

Evidently the petitioners are claiming wages payable to the carpenters in Government service.

We do not think that 668 we could accept their claim.

In the first place, even assum ing that the petitioners ' jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work".

The discrimination complained of must be within the same estab lishment owned by the same management.

A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master.

Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced.

This was also the view expressed in Meva Ram Kanojia vs A.I.I.M.S., ; at 245.

In the instant case, the petitioners are employed by a company incorporated under the .

They cannot claim wages payable to their counterparts in government service.

Secondly, it may be noted that the petitioners are carpenters; better called as craftsmen.

By the general description of their job, one cannot come to the conclusion that every carpenter or craftsmen is equal to the other in the performance of his work.

The two jobs by the mere nomen clature or by the volume of work performed cannot be rated as equal.

It is not just a comparison of physical activity.

It requires the consideration of various dimensions of the job.

The accuracy required by the job and the dexterity it entails may differ from job to job.

It cannot be evaluated by the mere averments in the self serving affidavits or counter affidavits of the parties.

It must be left to be evaluated and determined by expert body.

The principal claim of the petitioners therefore fails and is rejected.

The next contention that the petitioners should be paid at least the minimum wages prescribed by the Deputy Commis sioner under Exhibit P. 2 dated March 20, 1986 cannot also be accepted.

exhibit P. 2 was issued by the Deputy Commissioner in the exercise of his powers under the H.P. Financial Rules.

It is applicable only to skilled and unskilled work ers in class IV employees in Government service.

It has not been extended to employees of the Corporation.

The petition ers have been treated as construction workers and they are being paid the minimum wages admissible to such workmen.

The Court, therefore, cannot direct the Corporation to apply the rates prescribed under exhibit P. 2 unless the Government makes it applicable to employees of the Corporation.

As to the claim for regularisation of services of the peti tioners, 669 we express no opinion, since the factual data is disputed and is insufficient.

We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them.

In the result, the petition fails and is dismissed.

In the circumstances of the case, we make no order as to costs.

P.S.S. Petition dismissed.

Summary: The petitioners employed as daily rated carpenters at the Wood Working Centre of the Himachal Pradesh State Handi crafts Corporation sought enforcement of their fundamental right to have "equal pay for equal work" in terms paid to their counterparts in regular services, or in the alterna tive, the minimum wages prescribed by the Deputy Commission er for like categories of workmen.

Summary: The petitioners ' claim was resisted by the respondents.

Summary: Their case was that the unit where the petitioners were working was a factory registered under the Factories Act, that they were treated as industrial workmen and given all benefits due to them under the various labour legislations, that the Government had not fixed the minimum wages payable to the workmen engaged in the Corporation or other like industries but the Corporation had adopted for its workmen the minimum wages payable for similar work in the construc tion industry, and that there were no regular employees of the petitioners ' categories in its establishment and, as such, the question of payment to them the pay admissible to regular employees does not arise.

Summary: Dismissing the writ petition, HELD: 1.

Summary: Unless it is shown that there is a discrimina tion amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced.

Summary: A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geograph ical location though owned by the same master.

Summary: [668B] In the instant case, the petitioners were employed by a company incorporated under the Companies Act.

Summary: They cannot claim wages pay 663 able to their counterparts in government service.

Summary: [668C] Meva Ram Kanojia vs All India Institute of Medical Sciences & Anr., ; , referred to.

Summary: Randhir Singh vs Union of India, ; , ex plained.

Summary: The principle of 'equal pay for equal work ' has no mechanical application in every case of similar work.

Summary: No two jobs by the mere nomenclature or by the volume of work performed can be rated as equal.

Summary: It is not just a comparison of physical activity.

Summary: It requires the consideration of various dimensions of the job.

Summary: The accuracy required by the job and the dexterity it entails may differ from job to job.

Summary: It must be left to be evaluated and determined by expert body.

Summary: [666D, 668D E] In the instant case, however, the Corporation had no regularly employed carpenters.

Summary: Even assuming that the peti tioners ' jobs were comparable with the counterparts in Government service they could not enforce the right to equal pay for equal work.

Summary: [667G, 668A] State of U.P. vs J.P. Chaurasia, ; ; Meva Ram Kanojia vs All India Institute of Medical Sciences & Anr., ; and Federation of All India Customs and Central Excise Stenographers (Recognised) vs Union of India, ; , referred to.

Summary: The order issued by the Deputy Commissioner on March 20, 1986 in exercise of his powers under the H.P. Financial Rules prescribing minimum wages was applicable only to skilled and unskilled workers in Class IV employees in Government service.

Summary: The benefit of the rates prescribed under that order cannot be extended to the petitioners unless the Government makes it applicable to the employees of the Corporation.

Summary: [668F G]


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 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 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 I.P.C. 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 I.P.C. in respect of the murder of Malan and against their acquittal of the charge framed under section 302 read with section 120B I.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.

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 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 14.11.1972 to 4 11.1974 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 (P.W. 1) during the period from 782 10.11.1975 to 1.1.1976 in Babultara village, Prabhani district.

Charge No. 1 framed in this case was for criminal conspiracy under section 302 read with section 120B 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. 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 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 section 302 read with section 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 1, 6 and 7 was under section 302 read with section 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 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 section 302 read with section 120B I.P.C. 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 I.P.C.

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 I.P.C.

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 I.P.C. Thus the acquittal of accused 1 and 6 of charge No. 1 framed against them under section 302 read with section 120B I.P.C. 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 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 section 302 read with section 120B I.P.C. and the confirmation of the conviction and sentence awarded to accused 6 by the trial court under section 302 read with section 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 section 302 read with section 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 filed only against accused 2,3,4 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 I.P.C. is unsustainable in law as at least two persons are required for an offence of conspiracy under section 120A I.P.C. and he relied upon a decision of this Court in Topandas vs State of Bombay(1) in support of his contention.

In 784 that case the charge under section 120B I.P.C. 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 I.P.C. holding that the conviction of one of the accused alone was unsustainable in law having regard to the requirement of s.120A 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 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 I.P.C. 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 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 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 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. 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 I.P.C. 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 P.W. 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 P,W. 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, 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, 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 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. 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 P.W. 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 I.P.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. 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 (P.W. 31) who had conducted autopsy on the body of Malan 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 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 I.P.C. Charge No. 1 was for criminal conspiracy under section 302 read with section 120B I.P.C. 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 P.W. 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 14.11.1972 to 4.11.1974 in Manwath village were not the real culprits.

Summary: Charges 2 to 4 were framed under section 302 read with section 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.

Summary: 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 I.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 under section 377 Cr.

Summary: The State also preferred under section 378 Cr.

Summary: P.C. 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.

Summary: 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.

Summary: 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.

Summary: 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 I.P.C. read with section 120B.

Summary: Hence the present appeals by accused 5 and 6 only, accused No. 1 not preferring an appeal.

Summary: Allowing the appeal No. 288 of 1980 of accused No. 5 and dismissing appeal No. 287 of 1980, the Court.

Summary: ^ HELD: 1.

Summary: 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 I.P.C. (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.

Summary: 1, 6 and 7 the conviction and sentence of accused No. 5 by the High Court is unsustainable in law.

Summary: [783FG] Topandas vs State of Bombay referred to. 2.

Summary: 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 I.P.C. and accused 5 was not a party for the offence of murder of Malan for which only accused nos.

Summary: 1, 6 and 7 were tried.

Summary: [785E F] 3.

Summary: However, the conviction and sentence of imprisonment for life under section 302 read with section 341 I.P.C 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.

Summary: The evidence of the approver P.W. 1 and the retracted confession of accused 6 Exh.

Summary: 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.

Summary: [786A B; 785F G; 786A]