Case: Raju @ Devendra Choubey Vs. State of Chhatisgarh

that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are of the essentially governed by Section 162, Criminal Procedure Code. It is for this reason that the identification parades in this case seem to have been held under the supervision of a Magistrate. Keeping in view the purpose of identification parades the Magistrates holding them are expected to take all possible precautions to eliminate any suspicion of unfairness and to reduce the chance of testimonial error. They must, therefore, take intelligent interest in the proceedings, bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution and (ii) that justice should be done in the identification. Those proceeding should not make it impossible for the identifiers who, after all, have, as a rule, only fleeting glimpses of the person they are supposed to identify. Generally speaking, the Magistrate must make a note of every objection raised by an accused at the time of identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence may take them into consideration in the appreciation of that evidence. The power to identify, it may be kept in view, varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification and secondly that no mistakes are made by them or the mistakes made are negligible. The identification to be of value should also be held without much delay. The number of persons mixed up with the accused should be reasonably large and their bearing and general appearance not glaringly dissimilar. The evidence as to identification deserves, therefore, to be subjected to a close and careful scrutiny by the Court…….” The observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court in Budhsen’s case (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as in Budhsen’s case (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case. 20. Mr. P.C. Agrawala, learned senior counsel for the appellant Mahesh (accused no. 3), vehemently submitted that this accused ought not to have been convicted under Section 302 with the aid of Sections 34 and 120 (B) of IPC. In particular it was submitted that the role attributed to the accused was that he merely stood outside the house. He did not even act as a guard because when the witness Anil Kumar (PW-21) came to the house, he was not even stopped by the accused from entering the house. The learned counsel for Mahesh (accused no.3) relied on several decisions of this Court in Suresh Sakharam Nangare Vs. State of Maharashtra (2012) 9 SCC 249 , Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 and Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555. 21. It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]. This deposition clearly implicates accused Nos. 1, 2 and 4. The picture that emerges is that Shashi Tripathi caused Bhavna to be killed and for this purpose engaged Chandra Prakash (accused No. 2) and Raju @ Devendra Choubey (accused No. 4) by paying them money. She also seems to have had a scuffle with Bhavna, which is apparent from the fact that her hair was found in the grip of the deceased during investigation. It is obvious that accused nos. 2 and 4 did not enter the house to commit a robbery and had a single mission, namely, to kill Bhavana. There is no evidence that they had any previous animosity with the deceased and appeared to have acted as contract killers.The prosecution has found it difficult to pinpoint the motive but Shashihusband Dr. Sharda Prasad Tripathi (PW-1) deposed before the Court that she tried to create a hindrance in the marriage of his son Jitendra since she wanted her daughter Abhilasha to marry him; however, he went ahead with the marriage of Jitendra to Bhavna, whereupon Shashi Tripathi remained silent.On a careful perusal of the deposition of this child witness, we have not found any reason why he would have lied. He was brought to the house by Shashi Tripathi (accused), who apparently took care of him and sent to school and gave him food and residence. He had no grouse against her neither any ulterior motive in identifying the accused, who were not acquainted to him. There was no reason for the sole eye witness - Anil (PW-21) to implicate anybody falsely. Merely because he has been some time in the company of the police at the police station his testimony cannot be discarded as untrue. The incident occurred within the four walls of the house of the accused - Shashi Tripathi and the only witness was the boy –Anil (PW-21). His statement that the accused Chandra Prakash attacked the deceased is corroborated by the recovery of knife from Chandra Prakash. It must be remembered that the boy comes from a rural back ground and was 13 years of age when the incident occurred. His presence in the house is entirely natural and we have no reason to discard hisis not possible for us to accept this contention. Mahesh and Chandra Prakash were arrested on 29.11.2003, their identification parade was conducted on 13.12.2003 - (within a fortnight or so). The accused Devendra Kumar was arrested on 22.12.2003 and his identification parade was conducted on 26.12.2003- (within four days). There is no evidence on record to show that the child witness had an opportunity to see and study the features of the accused between their arrest and test identification parade to enable a tutored identification. In any case, the period between the arrest and the identification parade was not large enough to constitute inordinate delay.observations of this Court undoubtedly lay down the correct law and we have no reason to doubt them. We, however, do not see how the observations help the appellants. In the present case, the child witness has been found to be reliable. His presence is not doubted, since he resided with the family for whom he worked. He had no axe to grind against any of the accused. He became the unfortunate witness of a gruesome murder and fearlessly identified the accused in Court. In his deposition he specified the details of the part which the accused played with reasonable particularity. In such a situation, it is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witness in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding, as observed by this Court incase (supra). This Court has not laid down the requirement in general that all identification parades must be under the supervision of a Magistrate as incase (supra). The learned counsel for the appellants also relied upon the Judgments of this Court in Subash and Shiv Kumar Vs. State of U.P. (1987) 3 SCC 331 , and Mohd. Abdul Hafeez Vs. State of Andhra Pradesh AIR 1983 SC 367 . The facts and circumstances of the cases are however different and it is not necessary to consider those cases in detail while dealing with the present case. Suffice it to say that those cases do not create any doubt as regards the conviction in this case.It is settled law that common intention and conspiracy are matters of inference and if while drawing an inference any benefit of doubt creeps in, it must go to the accused vide Baliya Vs. State of M.P. (2012) 9 SCC 696. 22. On a careful conspectus of the facts and the law, we are of the view that the prosecution has failed to prove the guilt of Mahesh beyond reasonable doubt. There is no evidence of his having played any part in the crime. He was merely seen by the witness as standing outside the house when the witness came home. Mahesh did not even act as a guard; he did not prevent Anil Kumar (PW-21) from entering the house. There is no evidence of the formation or sharing of any common intention with the other accused. There is no reference to a third person in the FIR; no evidence that he came with the other accused or left with them. No weapon was seized from him, nor was any property connected with the crime, seized. Having regard to the role attributed to him and the absence of incriminating factors we find that it is not safe to convict Mahesh of the offence of murder with the aid of Sections 34 and 120(B).