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Sec.302 r/w 34 & 120 (B) of I.P.C.- mere presence of Accused No.3 present out side of the house – no offence made out- trial court and High court convicted – Apex court held that 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). We therefore, hold that the accused Mahesh (accused no. 3) in Criminal Appeal No. 867 of 2013 is innocent and the conviction against him is set aside.= CRIMINAL APPEAL No. 822 OF 2012 RAJU @ DEVENDRA CHOUBEY …. APPELLANT VERSUS STATE OF CHHATISGARH …. RESPONDENT = 2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41835

  Sec.302 r/w 34 & 120 (B) of I.P.C.-  mere presence of Accused No.3 present out side of the house – no offence made out- trial court and High court convicted – Apex court held that 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). We therefore,  hold  that  the  accused  Mahesh  (accused  no.  3)  in Criminal Appeal No. 867 of 2013 is innocent and the conviction  against  him is set aside.=

  MERE PRESENCE OF ACCUSED – WITH OUT ANY CONTRIBUTIONS NOR IN ACCOMPANY OF OTHER ACCUSED – ENTITLED FOR ACQUITTAL

 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).

23.   We therefore,  hold  that  the  accused  Mahesh  (accused  no.  3)  in

Criminal Appeal No. 867 of 2013 is innocent and the conviction  against  him

is set aside. His bail bonds stand cancelled and sureties are discharged.

 

2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41835

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 822 OF 2012

RAJU @ DEVENDRA CHOUBEY …. APPELLANT

VERSUS

STATE OF CHHATISGARH …. RESPONDENT

WITH

CRIMINAL APPEAL NO. 867 OF 2013

WITH

CRIMINAL APPEAL NO. 589 OF 2014

WITH

CRIMINAL APPEAL NO. 1781 OF 2014
[Arising out of SLP (Crl.) No. 3737 OF 2014]

1 JUDGMENT

S. A. BOBDE, J.

Leave granted in SLP (Crl.) No. 3737/2014.

2 These appeals are preferred by four accused against the common
Judgment of the High Court of Chhattisgarh at Bilaspur, confirming the
Judgment of the Additional Sessions Judge, Bemetara, District Durg,
convicting the appellants under Section 302 read with Sections 34 and 120B
of the Indian Penal Code [hereinafter referred to as “IPC”] and sentencing
each of them to undergo imprisonment for life with a fine of Rs. 1,000/-,
and in default, to undergo additional rigorous imprisonment for three
months. These appeals have been taken up for disposal together since they
arise from a common judgment of the High Court deciding the appeals of the
accused.

3. The appellant – Raju @ Devendra Choubey (accused no. 4) has filed
Criminal Appeal No. 822 of 2012. The appellant – Mahesh (accused no. 3)
has filed Criminal Appeal No. 867 of 2013. The appellant – Beenu @ Chandra
Prakash (accused no. 2) has filed Criminal Appeal No. 589 of 2014. The
appellant – Smt. Shashi Tripathi (accused no. 1) has filed Criminal Appeal
arising out of Special Leave Petition (Criminal) No. 3737 of 2014.

4. PW-1 – Dr. Sharda Prasad Tripathi is the husband of accused Shashi
Tripathi. On 25.11.2003, when PW-1 – Dr. Sharda Prasad Tripathi came home
from his clinic, found that his daughter-in-law Bhavna Tripathi has been
murdered. He lodged a First Information Report (F.I.R.) on 25.11.2003 at
about 20:45 hours. The crime was registered. He deposed in court that on
25.11.2003, when he returned home, he found servant Anil Kumar (PW-21) was
weeping. When he went inside, he found his daughter-in-law – Bhavna and
wife – Shashi lying in the courtyard. Bhavna was dead. Shashi was
unconscious. There were numerous injuries, including incised wounds on
Bhavna, none on Shashi.

5. After registration of the crime, inquest was conducted over the dead
body of Bhavna on 26.11.2003. Post mortem was conducted by Dr. Naresh
Tiwari and Dr. M. Deodhar, who gave their report which is marked as Exhibit
P/18. Spot map was prepared by the Inquiry Officer (IO); bloodstained
cloth of accused Shashi Tripathi was taken into possession along with
broken bangles; bloodstained cement mortar and plain cement mortar were
also taken into possession. Shashi Tripathi, Mahesh and Binu @ Chandra
Prakash were arrested on 29.11.2003. A bloodstained knife was taken into
possession. The accused Raju @ Devendra Choubey was taken into custody on
22.12.2003 and a Suzuki motorcycle was also taken into possession.

6. A test identification was conducted by the Executive Magistrate in
the Sub Jail, Bemetara on 13.12.2003. A similar identification parade of
Raju @ Devendra Choubey was conducted on 26.12.2003 after his arrest.

7. A sealed packet containing hair found in the grip of the deceased and
another sealed packet containing bloodstained cloth of the deceased were
taken into possession vide Exhibit P/35.

8. After committal, the Trial Court framed charges under Section 302
read with Sections 34 and 120B of the IPC. The prosecution examined 32
witnesses. No defence witness was examined after the statements of the
accused were recorded under Section 313 of the Criminal Procedure Code,
1973.

9. According to the prosecution the accused Shashi Tripathi is the step
mother-in-law of deceased Bhavna Tripathi. Bhavna was married to her step
son – Jitendra Kumar in July, 2003. Shashi Tripathi used to be annoyed
with Bhavna Tripathi on account of some domestic dispute. She engaged the
other accused for murdering Bhavna. Bhavna was murdered on 25.11.2003 at
about 18:30 hours in the house where she resided with Shashi Tripathi.

10. There is no dispute that Bhavna’s death is homicidal. Dr. M.
Deodhar, who conducted the postmortem, opined that cause of her death was
neurogenic and hemorrhagic shock. The injuries found on person of the
deceased were as follows:

“External Injuries:

(1) incised wound on left scapular region of size 3 cm x 1 cm;

(2) incised wound on left scapular region of size 4 cm x 1 ½ cm x 1 ½ cm;

(3) one incised wound on left auxiliary region on the posterior auxiliary
region of size 3 cm x 2 cm x 3 cm;

(4) incised wound on lower costal region left of size 3 ½ cm x 2 cm x 1
cm;

(5) incised wound on lower costal region right side on right epigestic
region of size 3 ½ cm x 3 cm with punctured wound;

(6) incised wound over right costal region of size 3 cm x 2 cm x 1 cm;

(7) incised wound on right supra mammary region near middle of size 4 cm x
1 cm x 1 ½ cm;

(8) incised wound on right supra mammary region lateral aspect of size 3 cm
x 1 ½ cm x 1 ½ cm;

(9) incised wound on radial aspect of left forearm near wrist joint of size
2 ½ cm x ½ cm x ½ cm;

(10) incised wound on forearm left hand radial side dorsal aspect on lower
2/3rd region;

(11) incised wound on left forearm middle l/3rd region, radial side and
posterior aspect of size 2 ½ cm x 1½ cm x 1 cm;

(12) incised wound on left hand dorsal aspect on 2nd and 3rd metacarpal
region of size 2½ cm x ½ cm x 1½ cm;

(13) incised wound on ulna region of left hand on lower 1/3rd region of
size 1 cm x ½ cm x 1 cm; and

(14) incised wound over left side of neck, on anterior triangle of size 2
cm x ½ cm x 1 ½ cm.

Internal injuries:

Brain membrane pale; lungs, trachea pale, punctured wound on right and left
lungs of size 2 cm x 1 cm, 2 ½ cm and 1 cm x 3 cm; lobe was cut and there
was 3 cm punctured wound. Incised wound was also present on the right lobe
of size 3 cm x 1/3 cm x 3½ cm. Liver, kidney and spleen were pale. The
deceased was carrying fetus of two months.”

11. The sole eyewitness was a boy of 13 years of age – Anil Kumar (PW-
21), who worked as a servant with the family. Shashi Tripathi had brought
him home from Bilaspur. He participated in the identification parade,
which was held in Sub Jail, Bemetara, and identified the accused persons in
the court by touching them.

12. We have carefully examined the manner in which the identification
parade was conducted and the manner in which the boy – Anil Kumar (PW-21)
identified the accused in Court and we have no reason to doubt the
identification of the accused, which assumes importance in this case since
the boy did not know the accused before the incident.

13. It is Anil Kumar (PW -21), who first informed the head of the family
Dr. Sharda Prasad Tripathi (PW-1), the complainant, about the incident,
when he came home after closing his clinic. He deposed before the Court
that Shashi Didi (accused) brought him to village – Jevra from Bilaspur.
He lived in the house of Shashi Didi. He ate his food there and studied in
a school. He deposed that Doctor Sahab is her husband and Shivendra and
Jitendra are her sons. Jitendra is her step-son and the deceased Bhavna
is the wife of Jitendra. She resided with Shashi Didi. Jitendra is a
doctor, resided and practiced at Khamaria, whereas his wife resided at
Jevra. His brother – Shivendra studies at Calcutta. He referred to Bhavna
as Bhabhi. He stated that Shashi Didi and Bhavna sometimes used to
quarrel.

14. About the assault, he deposed that Devendra caught Bhavna and Chandra
Prakash attacked her with knife 3 to 4 times and she fell down. The
incident occurred in the courtyard and Shashi Didi was present in the
passage. Mahesh, the fourth accused, was standing outside the house.
After the assault, Chandra Prakash went to the TV room where Shashi Didi
had kept some money in a rubber band on the table. The accused – Chandra
Prakash had threatened him not to disclose anything about the incident to
anyone. Thereafter all the three accused fled from there. He further
deposed that Shashi Didi took him upstairs to the terrace and asked him not
to disclose the truth to anyone but to say that thieves came into the house
and committed the crime. Shashi Didi thereafter started shouting. Then
she lay down on the courtyard near Bhavna Bhabhi.

15. 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.

16. The prosecution has found it difficult to pinpoint the motive but
Shashi Tripathi’s husband 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.

17. The credibility of the evidence of Anil Kumar (PW-21) was attacked by
the learned counsel for the appellants, who submitted that the boy is a
tutored witness, who has been influenced by the police with whom he spent a
lot of time. In fact, he even came to the Court in the company of a police
constable after being served summons at Allahabad. The learned counsel
submitted that the evidence of a child witness must be carefully
scrutinized before acceptance since a child can be easy prey for tutoring
and the court must insist on corroboration from other evidence.

18. 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 his testimony.

19. The learned counsel for the appellants forcefully attacked the
conviction of the other accused viz. Mahesh, Chandra Prakash and Devendra
Kumar, who admittedly were not known to the child witness Anil Kumar. It
was submitted that the test identification parade were delayed and the
identification of these accused by the witness in Court was not reliable.
It is 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. The learned counsel for the appellants relied upon the
Judgment of this Court in Budhsen and Anr. Vs. State of U.P. (1970) 2 SCC
128 where this Court made the following observations:-

“7. Now, facts which establish the identity of an accused
person are relevant under Section 9 of the Indian Evidence Act. As a
general rule, the substantive evidence of a witness is a statement made in
court. The evidence of mere identification of the accused person at the
trial for the first time is from its very nature inherently of a weak
character. The evidence in order to carry conviction should ordinarily
clarify as to how and under what circumstances he came to pick out the
particular accused person and the details of the part which the accused
played in the crime in question with reasonable particularity. The purpose
of a prior test identification, therefore, seems to be to test and
strengthen the trustworthiness of that evidence. It is accordingly
considered a safe rule of prudence to generally look for corroboration of
the sworn testimony of witnesses in court as to the identity of the accused
who are strangers to them, in the form of earlier identification
proceeding. There may, however, be exceptions to this general rule, when
for example, the court is impressed by a particular witness, on whose
testimony it can safely rely, without such or other corroboration. The
identification parades belong to the investigation stage. They are
generally held during the course of investigation with the primary object
of enabling the witnesses to identify persons concerned in the offence, who
were not previously known to them. This serves to satisfy the investigating
officers of the bona fides of the prosecution witnesses and also to furnish
evidence to corroborate their testimony in court. Identification
proceedings in their legal effect amount simply to this: 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).

23. We therefore, hold that the accused Mahesh (accused no. 3) in
Criminal Appeal No. 867 of 2013 is innocent and the conviction against him
is set aside. His bail bonds stand cancelled and sureties are discharged.

24. In view of the above, Criminal Appeal No. 867 of 2013 is allowed and
Criminal Appeal Nos. 822 of 2012, 589 of 2014 and Criminal Appeal arising
out of SLP (Criminal) No. 3737 of 2014 are dismissed.

………………………….………….…..J.
[DIPAK MISRA]

……………………………………J.

[S.A. BOBDE]

NEW DELHI,
AUGUST 21, 2014

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