RAJU @ DEVENDRA CHOUBEYversusSTATE OF CHHATISGARH

                        [2014] 8 S.C.R. 1084


A                RAJU @ DEVENDRA CHOUBEY
                                  v.
                     STATE OF CHHATISGARH
                 (Criminal Appeal No. 822 of 2012)

                         AUGUST 21, 2014
B
              [DIPAK MISRA AND S.A. BOBDE, JJ.]

          Penal Code, 1860: s. 302 rlw s. 34 - Murder with the aid
    of contract killers - Allegation that accused no. 1 hired
C   contract killers accused no. 2 to 4 to kill her daughter-in-law
    (deceased) as she was annoyed with the deceased on
    account of domestic dispute - PW-21 servant aged 13 years
    was eye-witness - Conviction by courts below - On appeal,
    held: PW-21 was brought from village by accused no. 1 and
o   she used to take care of him, send to school anq give food
    and residence - No reason for him to falsely implicate accused
    no. 1 - The deposition of PW-21 was that accused no. 4
    caught the deceased and accused no. 2 attacked her with
    knife 3-4 times - Incident occurred in the courtyard and
E   accused no. 1 was present in the passage - Accused no. 3
    was standing outside the passage - Accused no. 1 and 2
    threatened PW-21 not to disclose about the incident to
    anyone - Thus accused no. 2 and 4 had a single mission to
    kill the deceased and had not entered the house to commit
F   robbery - There was no evidence that they had previous
    animosity with the deceased - Statement of PW-21 that
    accused no.2 attacked the deceased was corroborated by the\
    recovery of knife from accused no. 2 - Conviction of accused
    no.1, 2 and 4 upheld - As regards accused no. 3, there was
G   no evidence of his having played any role in the crime - No
    weapon or any property connected with crime was seized from
    him - He being innocent is acquitted - Child witness.

        The prosecution case was that on 25.11.2003, when

H                               1084
   RAJU @ DEVENDRA CHOUBEY v STATE OF               1085
              CHHATISGARH

PW-1, husband of accused no. 1 returned home from A
clinic, he found that servant PW-21 aged 13 years of age
was weeping. When he went inside, he found his
daughter-in-law dead and his wife accused no. 1 ·
unconscious. Accused No. 1 was the step mother-in-law
of the deceased and used to be annoyed with the B
deceased on account of domestic dispute. PW-21 worked
as servant with the family. He was brought by accused
no. 1. He lived in the house of accused no.1 and had his
food there and studied in the school.

     PW-21 participated in the identification parade and
                                                             c
identified the accused persons in the court by touching
them. The deposition of PW-21 with regard to the murder
of the deceased was that accused no. 4 caught the
deceased and accused no.2 attacked her with knife 3-4
times. The incident occurred in the courtyard and            D
accused no. 1 was present in the passage. Accused no.
3 was standing outside the house. After the assault,
accused no. 2 went to the TV room where accused no. 1
had kept some money. Accused no. 2 threatened PW-21
not to disclose about the incident to anyone. Thereafter,    E
all the three accused fled from there. Thereafter, accused
no. 1 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. Accused
no. 1 thereafter started shouting and lay down near the      F
deceased. The trial court convicted all the accused under
Section 302 r/w Section 34 and Section 1208, IPC. The
High Court confirmed the conviction. The instant appeal
was filed challenging the order of the High. Court.
                                                             G
     Dismissing the appeals of accused no. 1, 2 and 4 and
~allowing the appeal of accused no. 3, the Court.

     HELD: 1; The deposition of PW-21 clearly implicated
accused No.s. 1, 2 and 4. The picture that emerged was
that accused no.1 caused the deceased to be killed and       H
    1086    SUPREME COURT REPORTS            [2014] 8 S.C.R.


A for this purpose engaged accused No. 2 and accused No.
  4 by paying them money. She also seemed to have ·had
  a scuffle with the deceased, which became apparent from
  the fact that her hair was found in the grip of the
  deceased during investigation. It is obvious that accused
B nos. 2 and 4 did not enter the house to commit a robbery
  and had a single mission, namely, to kill the deceased.
  There was no evidence that they had any previous
  animosity with the deceased and appeared to have acted
  as contract killers. [Para 15] [1094-C-E]
c     2. The prosecution found it difficult to pinpoint the
  motive but PW-1, husband of accused no.1 deposed
  before the Court that accused no.1 tried .to create a
  hindrance in the marriage of his son since she wanted
  her.daughter to marry him; however, he went ahead with
D the marriage of his son to the deceased, whereupon
  accused no.1 remained silent. [Para 16] [1094-F]

       3. A perusal of the deposition of child witness PW-
  21 showed that there was no reason why he would have
E lied. He was brought to the house by accused no.1 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
F for the sole eye witness (PW-21) to implicate anybody
  falsely. Merely because he was 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 no.1 and the only
G witness was the boy (PW-21 ). His statement 'that the
  accused no.2 attacked the deceased was corroborated
  by the recovery of knife from accused no.2. The boy was
  from a rural back ground and was 13 years of age when
  the incident occurred. His presence in the house was

H
   RAJU @ DEVENDRA CHOUBEY v STATE OF                   1087
              CHHATISGARH

entirely natural and there was no reason to discard his          A
testimony. [Para 18] [1095-B-E]

     4. Accused no.2 and 3 were arrested on 29.11.2003,
their identification parade was conducted on 13.12.2003
- (within a fortnight or so). Accused no.4 was arrested on       B
22.12.2003 and his identification parade was conducted
on 26.12.2003- (within four days). There was 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         C
 between the arrest and the identification parade was not
 large enough to constitute inordinate delay. In the instant
 case, the child witness was found to be reliable. His
 presence was not doubted, since he resided with the
 family for whom he worked. He had no axe to grind               D
 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
 deta.ils of the' part which the accused played with
 reasonable particularity. In such a situation, it is            E
 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. [Para
 19] [1095-G-H; 1096-A; 1098~8-D]                                F

    Subash and Shiv Kumar Vs. State of UP. (1987) 3 SCC
331: 1987 (2) SCR 962 ; Mohd. Abdul Hafeez Vs. State of
Andhra Pradesh AIR 1983 SC 367 - Distinguished.

    Budhsen and Anr. Vs. State of UP. (1970) 2 SCC 128: G
1971 (1) SCR 564; Suresh Sakharam Nangare Vs. State of
Maharashtra (2012) 9 SCC 249; 2012 (7) SCR 1186 ; Jai
Bhagwan Vs. State of Haryana AIR 1999 SC 1083;
Ramashish Yadav Vs. State of Bihar (1999) 8 SCC 555:
1999 (2) Suppl. SCR 285 - referred to.                  H
    1088    SUPREME COURT REPORTS.            [2014] 8 S.C.R.


A       5. 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. [Para 21]. [1099-B, C]

B       Baliya v. State of M.P. (2012) 9 SCC 696: 2012 (8) SCR
    1154 - relied on.

      6. On a careful conspectus of the facts and the law,
  the prosecution failed to prove the guilt of accused no.3
  beyond reasonable doubt. There was no evidence of his
C having played any part in the crime. He was merely seen
  by the witness as standing outside the house when the
  witness came home. Accused no.3 did not even act as a
  guard; he did not prevent PW-21 from entering the house.
  There was no evidence of the formation or i;haring of any
D common intention with the other accused. There was 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 propert~
  connected with the crime, seized. Having regard to the
E role attributed to him and the absence of incriminating
  factors, it is not safe to convict accused no. 3 of the
  offence of murder with the aid of Sections 34 and 120(8).
  The accused no. 3 is innocent and the conviction against
  him is set aside. [Paras 22 and 23] [1099-C-G]
F                              •
                       Case Law Reference :
       1971 (1) SCR 564            Distinguished     Para 19
       1987 (2) SCR 962            Distinguished     Para 19

G      1971 (1) SCR 564            Referred to       Para 20
       2012 (7) SCR 1186           Referred to       Para 20
       AIR 1999 SC 1083            Referred to       Para 20
       1999 (2) Suppl. SCR 285     Referred to       Para 20
H
   RAJU @ DEVENDRA CHOUBEY v STATE OF                    1089
              CHHATISGARH

   2012 (8) SCR 1154             Relied on           Para 21      A

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 822 of 2012.

    From the Judgment and Order dated 1'7.09.2010 of the
High Court of Chhattisgarh at Bilaspur in Criminal Appeal No.     B
244 of 2005.

                              WITH

Crl.A. No. 867 of 2013.                                           c
Crl.A. Nos. 589 and 1781 of 2014.

     P.C. Agrawala, Dr. Rajesh Pandey, Mahesh Pandey,
Priyanka Pandey, Mridula Ray Bhardwaj, Revathy Raghavan,
Vidya Dhar Gaur for the Appellant.                                D

   Atul Jha, Sandeep Jha, Dharmendra Kumar Sinha for the
Respondent.

    The Judgment of the Court was delivered by
                                                                  E
    S. A. BOBDE, J. 1. 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 Judgmen\ of the Additional Sessions      F
Judge, Semetara, District Durg, convicting the appellants under
Section 302 read with Sections 34 and 1208 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       G
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.
                                                                  H
    1090     SUPREME COURT REPORTS              [2014) 8 S.C.R.


A       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 -
B Sll!t. 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 Trfpathi. On 25.11.2003, when PW-1 - Dr.
C 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.IR.) 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
D 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 d~ad. Shashi was unconscious. There
  were numerous injuries, including incised wounds on Bhavna,
  none on Shashi.
E
       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
F prepared by the Inquiry Officer (10); 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
G 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
H Magistrate in the Sub Jail, Semetara on 13.12.2003. A similar
   RAJU @. DEVENDRA CHOU BEY v. STATE OF                  1091
        CHHATISGARH [S.A. BOBDE; J.]

identification parade of Raju @ Devendra Choubey was               A
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
                                                                   8
P/35.
    8. After committal, the Trial Court framed charges under
Section 302 read with Sections 34 and 1208 of the IPC. The
prosecution examined 32 witnesses. No defence witness was
examined after the statements of the accused were recorded         C
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,       0
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.
                                                                   E
     10. There 'is no dispute that Bhavna's death is homicidal.
Dr. M. Deodhar, wh.o 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:
                                                                   F
     "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 cmx 1%   G
      cmx 1% cm;

     (3) one incised wound on left auxiliary region on the
     posterior auxiliary region of size 3 cm x 2 cm x 3 cm;
                                                                   H
    1092    SUPREME COURT REPORTS                (2014] 8 S.C.R.


A      (4) incised wound on lower costal region left of size 3 %
       cmx 2cmx 1cm;

       (5) incised wound on lower costal region right side on right
       epigestic region of size 3 % cm x 3 cm with punctured
       wound;
B
       (6) incised wound over right costal region of size 3 cm x 2
       cm x 1 cm;

       (7) incised woun,d on right supra mammary region
c      nearmiddleofsize4cmx 1cmx 1% cm;

       (8) incised wound on right supra mammary region lateral
       aspectofsize3cmx 1% cmx 1% cm;

       (9) incised wound on radial aspect of left forearm nearwrist
D      joint of size 2% cm x % cm x % cm;

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

       (11) incised wound on left forearm middle I/3rd region,
E      radial side and posterior aspect of size 2 % cmx 1% cmx
       1cm;

       (12) incised wound on left hand dorsal aspect on 2nd and
       3rd metacarpal region of size 2% cm x % cm x 1% cm;
F
       (13) incised wound on ulna region of left hand on lower 1/
       3rd region of size 1 cm x % cm x 1 cm; and

       (14) incised wound over left side of neck, on anterior
       triangle of size 2 cm x % cm x 1 % cm.
G
       Internal injuries:

       Brain membrane pale; lungs, trachea pale, punctured
       wound on right and left lungs of size 2 cm x 1 cm, 2 % cm
       and 1 cm x 3 cm; lobe was cut and there was 3 cm
H
  ~AJU @ DEVENDRA CHOUBEY v.      STATE OF                1093
          CHHATISGARH [S.A. BOBDE, J.]
    punctured wound. Incised wound was also present on the         A
    right lobe of size 3 crn x 1/3 cm x 3% 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 -      8
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, Semetara, and identified the accused persons in the court
by touching them.
                                                                   c
     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       D
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 ca111e home after         E
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
                                                                   F
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.                                                   G

    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     H
    1094     SUPREME COURT REPORTS               [2014] 8 S.C.R.


A 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
B fled from there. He further deposed that Shashi Didi took h'im
  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.
c      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
D 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
E 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. Sh~rda Prasad
F   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.
G       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
H constable after being served summons at Allahabad. The
   RAJU @ DEVENDRA CHOUBEY v. STATE OF                       1095
        CHHATISGARH [S.A. BOBDE, J.]

learned counsel submitted that the evidence of a child witness        A
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
                                                                      B
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       C
-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 -           D
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          E
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
                                                                      F
  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        G
  fortnight cir 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     H
    1096     SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A identificatibrlparade 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 UP. (1970) 2 SCC
B 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
c       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
D       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
E       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
F       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.
G       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
H
RAJU @ DEVENDRA CHOU BEY v. STATE OF                 1097
     CHHATISGARH [S.A. BOBDE, J.]

 some other place and make statements either express or A
 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 B
 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 c
 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 0
 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 E
 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 F
  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 G
  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 H
    1098     SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A        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,
8
    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 ·
C   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
D   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
E   (supra). The learned counsel for the appellants also relied upon
    the Judgments of this Court in Subash and Shiv Kumar Vs.
    State of UP. (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
F   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
 G 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
.H
   RAJU @ DEVENDRA CHOU BEY v. STATE OF                      1099
        CHHATISGARH [S.A. BOBDE, J.]
to the house, he was not even stopped by the accused from             A
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.              B

    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.
                                                                      c
      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 m~rely seen
by the witness as standing outside the house when the witness         D
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        E
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(8).                        F

     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.
                                                                      G
      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.
Devika Gujral                                  Appeals disposed of.