MANOJ GIRI Vs STATE OF CHHATISGARH
Bench: T.S. THAKUR,S.A. BOBDE
Case number: Crl.A. No.-000470-000470 / 2012
Diary number: 25256 / 2011
Advocates: SHIVA PUJAN SINGH Vs
C. D. SINGH
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 470 OF 2012
Manoj Giri …. Appellant
Versus
State of Chhatisgarh …. Respondent
JUDGMENT
S. A. BOBDE, J.
1 The present appeal arises out of the judgment and
order passed by the High Court of Chattisgarh at Bilaspur
whereby the High Court maintained the conviction of the
appellant under Sections 396 and 376 (2)(g) of the Indian
Penal Code, 1860 [in short 'the IPC'] and sentenced him to
undergo imprisonment for life and rigorous imprisonment
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for ten years, respectively, but set aside his conviction
under Section 395 of the IPC for a period of five years
awarded by the trial court. Earlier, the trial court while
acquitting other co- accused held the appellant - Manoj Giri
guilty for commission of dacoity, murder of Domara Sahu in
the course of committing dacoity etc. and convicted him
under Sections 395, 396, 397, 398 and 376 (2)(g) of the
IPC and sentenced him to undergo imprisonment for life and
RI for different periods.
2. According to the prosecution, on the fateful night of
25.01.2004 at about 9 pm, prosecutrix (PW1) was returning
with her husband, namely, Ganesh Sahu (PW2) on the
bicycle from Village Gatauri along with her father-in-law –
Domara Sahu (since deceased) on other bicycle from village
Mohtarat after taking her treatment. It was a lonely road as
they were passing by Koshtha pond at Village Mohtarai,
someone focused a torch light on them and then hurled
abuses and stopped them. Then two more persons reached
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there and caught the cycle of Ganesh Sahu and stopped
him. Two other persons stopped the cycle of Domara Sahu.
One person inflicted iron rod blow to Ganesh Sahu and
another slapped Domara Sahu. They took the prosecutrix,
her husband and Domara Sahu towards the field and
threatened they would be killed if they cried out. Ganesh
Sahu was beaten senseless and his hands and legs were tied
up with a lungi. Domara Sahu was also beaten senseless.
Those persons threatened the prosecutrix and took off her
sari and under garments and then raped her one by one.
One of them had tied her legs and raped her, another untied
her while raping her. Subsequently, after tying her up,
they sat for sometime and then ran away. Somehow she
untied herself and untied her husband and they reached the
house of one Raj Kumar Suryavanshi, who gave them
shelter. She narrated the incident to Raj Kumar
Suryavanshi, who sent Ashok Kumar (PW 13) to lodge the
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FIR at about 2.00 am. Domara Sahu who had been carried
to local hospital, died at about 4.35 am.
3. Ganesh (PW2) was examined by Dr. A.N. Mandal (PW4),
vide Ex.P-4 and following injuries were found :
1. Incised wound of 4 cm X 1 cm X 1 cm on forehead.
2. Lacerated wound of 3 cm X 1 cm. X ½ cm over left
temporal region.
3. Lacerated wound of 1 cm X ½ cm. X ¼ cm near
left eye.
4. Swelling of 2 cm X 2 cm over right leg.
5. Left eye was blackened and swollen.
6. Left cheek was swollen.
4. For treatment, Ganesh was admitted in the hospital,
Domara Sahu was also examined by Dr. A.N. Mandal (PW4)
vide Ex.P-5 and following injuries were found:
1. He was under coma, his general condition was
very poor.
2. Blood was coming from nose and ear.
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3. Swelling on left temporal region.
5. Domara Sahu was immediately admitted in Surgical
Ward for emergency treatment. During treatment, Domara
Sahu died on 26.01.2004. The death of Domara Sahu was
intimated by the doctor, message was recorded vide
Ex.P-22 and on the basis of FIR under zero number,
numbered FIR was registered at Ratanpur Police Station
vide Ex.P-21. After summoning the witnesses vide Ex.P-19
inquest over the dead body of Domara Sahu was conducted
vide Ex.P-20. Thereafter dead body was sent for autopsy
to Medical College, Bilaspur vide Ex.P-28. Dr. A.K. Shukla
(PW3) conducted autopsy on the body of Domara Sahu and
found following injuries as symptoms:
1. Blood clot in nose and ear with swelling.
2. Defused swelling over right temporal region of
8 cm x 7 cm.
3. Haemorrhage inside the skin with swelling.
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4. Depressed fracture of temporal bone with swelling.
5. Abrasion over forehead.
6. Fresh abrasions over both the knees.
Cause of death of Domara Sahu was coma. Spot map
was prepared by the police vide Ex.P-43.
6. There is no doubt that the death of Domara Sahu was
homicidal and that it was caused by the accused persons.
The findings of the trial court and the High Court in that
regard are not seriously assailed in the appeal.
7. In the morning of 26.01.2004, the prosecutrix's
statement was recorded in detail by the Investigating
Officer - Anil Kumar Tiwari. Police seized the clothes of the
prosecutrix and those of the accused persons, five in
number. The prosecutrix as well as the accused persons
were sent for medical examination. Forensic tests were
conducted on the clothes of the accused persons. The
examination of the prosecutrix conducted by Dr. M. Pandey
revealed that her secondary sexual characters were well
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developed, hymen was old ruptured, vagina admits two
fingers easily and she was found accustomed to sexual
intercourse.
8. During the course of investigation, accused Dilip,
Ashish Dubey, appellant Manoj Giri and Dhruv Narayan
were sent for medical examination on 26.01.2004 and they
were examined by Dr. Dharmendra Kumar (PW 19) vide
Exs. P-32, 33, 34 & 35 respectively. Vide medical
examination report Ex.P-34, Dr. Dharmendra Kumar
(PW 19) noticed that appellant Manoj Giri was capable of
committing sexual intercourse, no injury was found over his
private part and smegma was missing over glans penis.
9. Appellant Manoj Dubey was also taken into custody, he
made a disclosure statement whereupon an iron rod and
lachha (silver ornaments) were recovered at his instance
vide Ex.P-38. Stained undergarments (langot) of appellant
Manoj Giri was seized vide Ex.P-12. The stained sari and
stained petticoat of the prosecutrix were seized vide
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Ex.P-13. Slides of the vaginal smear of the prosecutrix
were also taken. From the other accused other iron rods,
one pair of chappal, broken pieces of bangles and part of
ear tops were seized and two old cycles and one piece of
iron rod were seized from the spot. Seized articles were
sent for chemical examination and presence of sperm was
confirmed on petticoat and sari.
10 The trial court considered the evidence and came to
the conclusion that the accused were properly identified by
the prosecutrix and with regard to whom there was
sufficient evidence available for conviction held them guilty
under Sections 395, 396, 397, 398 and 376 (2)(g) of the
IPC. As regards the other accused, the trial court came to
the conclusion that the evidence against them was
insufficient and contradictory and after the detailed
discussion came to the conclusion that it was not possible
to convict them mainly on the ground for want of
identification. They were thus acquitted.
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11. The State did not file any appeal against the acquittal
of the other accused. The appellant – Manoj Giri, however,
filed an appeal to the High Court. Before us, this appeal
has been filed against the said judgment.
12. The first contention of Shri S.P. Singh, the learned
counsel for the appellant is that the conviction of the
appellant is unjustified in view of the acquittal of the other
accused. There is no merit in this contention, since the trial
court did not find sufficient evidence against the other
accused to infer their guilt. The trial court found sufficient
anomaly in the identification and contradictions in the
version of the witnesses. We may have been persuaded to
take a different view of the evidence but we find that the
State did not consider it even worthwhile to file an appeal
against the order of the trial court for reasons best known
to it.
13. The second contention is that the story of the
prosecutrix is not credible for several reasons. According to
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the learned counsel for the prosecution, the prosecutrix did
not disclose the gang rape to any one till the next morning
i.e on 26.01.2004 she disclosed it, first time to the
Investigating Officer - Anil Kumar Tiwari. This is not so.
She did disclose it to her husband Ganesh when he re-
gained consciousness at the house of Raj Kumar
Suryavanshi on 25.01.2004 itself and then in the morning
she disclosed it to the Investigating Officer when her
statement was recorded. No inference of any lack of
credibility can be drawn from this. The resistance of a
woman, who has been raped, to announce it to anyone is
well known and there is nothing unnatural for her in
disclosing all the facts in details, for the first time to a
police officer.
14. With regard to the appellant’s conviction under Section
396 of the IPC for the murder of Damara Sahu in the case
of dacoity, it was contended by the learned counsel for the
appellant that since the other four accused who have been
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similarly charged were acquitted of the offence of dacoity, it
would not be legal and proper to convict the appellant of
the said charge. The argument is based on the
presupposition that a conviction for dacoity with murder
can be maintained only when five or more persons are
convicted. Section 396 of the IPC reads as follows:
“Section 396 -Dacoity with Murder: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine”.
15. This contention cannot be upheld in view of the
observations made by this Court in Raj Kumar Alias Raju
versus State of Uttranchal (Now Uttrakhand) (2008) 11
SCC 709, which read as follows:
“It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case,
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however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the Court may not be able to record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons - or even one - can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity”.
16. The observations squarely apply to this case. Domara
Sahu was killed in the assault by the five accused. The
evidence against the other four was not sufficient to convict
them. There is no doubt, the murder was committed
during the conjoint commission of dacoity. If properly
convicted each one of them were liable to be punished with
death vide Section 396 IPC. Since that has not happened
the conviction of five persons - or even one - can stand.
We have therefore no hesitation in maintaining the
conviction of the appellant for the incident in which there
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was a gang rape, dacoity and a wanton murder of the
hapless father-in-law.
17. It was next contented that there are no injuries on the
prosecutrix to infer rape. There is no merit in this
contention in view of the fact that the prosecutrix was a
married woman and was overpowered by several men
before she was raped. She was obviously not in a position
to resist and to fight several men, who had threatened her
with death in case she cried out. There is, however, ample
evidence of rape in view of the forensic report regarding
the clothes of the prosecutrix and those of the appellant.
The report clearly discloses the presence of semen spots
and human sperm on the clothes of the accused including
the appellant and the prosecutrix. The entire evidence thus
collected along with the proper and clear identification of
the accused at identification parade and in the court by the
prosecutrix leaves no manner of doubt that conviction
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of the appellant is well founded. In the result, we see, no
merit in the appeal. It is hereby dismissed.
…................………………..J. [T.S. Thakur]
…............………………………J. [S.A. Bobde]
New Delhi, May 08, 2013