| 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. on a careful perusal of the deposition of this child witness the court did not find any reason why he would have lied. he was brought to the house by shashi tripathi accusedwho 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 can not 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. 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. 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 1970 indlaw sc 136 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 1970 indlaw sc 136 supra. 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. 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. 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 ss 34 and 120b. |