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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