RAJU @ DEVENDRA CHOUBEY vs. STATE OF CHHATISGARH

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] JUDGMENT JUDGMENT 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, 1 Page 1 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

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 - JUDGMENT 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 2 Page 2 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

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 JUDGMENT 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 3 Page 3 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

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. JUDGMENT 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 4 Page 4 of her death was neurogenic and hemorrhagic shock. The injuries found on person of the deceased were as follows: “ External Injuries :

(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; JUDGMENT (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; rd (11) incised wound on left forearm middle l/3 region, radial side and posterior aspect of size 2 ½ cm x 1½ cm x 1 cm; 5 Page 5 nd (12) incised wound on left hand dorsal aspect on 2 rd and 3 metacarpal region of size 2½ cm x ½ cm x 1½ cm; (13) incised wound on ulna region of left hand on rd lower 1/3 region of size 1 cm x ½ cm x 1 cm; and

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 JUDGMENT 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 6 Page 6 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

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. JUDGMENT 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, 7 Page 7 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

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 JUDGMENT 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. 8 Page 8 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

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 JUDGMENT 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 9 Page 9 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

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. JUDGMENT 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 10 Page 10 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

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 JUDGMENT 11 Page 11

JUDGMENT 12 Page 12

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 JUDGMENT 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 13 Page 13 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

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 JUDGMENT 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. 14 Page 14 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 .

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 JUDGMENT 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 15 Page 15 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.

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] JUDGMENT .................................………J. [S.A. BOBDE] NEW DELHI, AUGUST 21, 2014 16 Page 16