MANOJ GIRIversusSTATE OF CHHATISGARH

                    [2013) 5 S.C.R. 529


                        MANOJ GIRi                             A
                             V.
                 STATE OF CHHATISGARH
             (Criminal Appeal No.470 of 2012)
                       MAY 8, 2013
                                                               B
          [T.S. THAKUR AND S.A. BOBDE, JJ.]

     Penal Code, 1860 - ss.396 & 376(2)(g) - Dacoity with
murder and gang rape - Five accused - Conviction of
accused-appellant - Challenged - Held: No merit in the C
contention that conviction of appellant was unjustified in view
of acquittal of the other four accused - It cannot be said that
conviction for dacoity with murder can be maintained only
when five or more persons are convicted - Evidence against
the four co-accused was not sufficient to convict them - If D
properly convicted each one of them were liable to be
punished with death uls.396 /PC- Since that did not happen,
conviction of five persons - or even one - can stand - PW1
was a married woman and was overpowered by several men
before she was raped - Ample evidence of rape in view of the E
forensic report regarding the clothes of PW1 and those of the
appellant - Entire evidence alongwith proper and clear
identification at identification parade and in the court by PW1
leaves no manner of doubt that the conviction of appellant was
well founded.                                                   F
    The prosecution case was that at night, while PW1,
her husband (PW2) and father-in-law ('D') were passing
by a road, the five accused persons stopped them and
assaulted PW2 and 'D' and thereafter raped PW1 one by
one. 'D' subsequently died. The accused persons were          G
charged for committing the offences of gang rape,
dacoity and murder. The trial court convicted the
accused-appellant under Sections 395, 396, 397, 398 and
376 (2)(g) IPC and sentenced him to undergo
                            529                                H
    530      SUPREME COURT REPORTS            (2013] 5 S.C.R.


A imprisonment for life and RI for different periods. The
  other accused were however acquitted by the trial court
  The High Court maintained the conviction of the appellant
  under Sections 396 and 376 (2)(g) IPC and sentenced him
  to undergo imprisonment for life and rigorous
B imprisonment for ten years, respectively, but set aside his
  conviction under Section 395 IPC.

       In the instant appeal, the appellant raised the
  following contentions: 1) that his conviction was
C unjustified in view of acquittal of the other accused; 2)
  that since the other four accused who were similarly
  charged were acquitted of the offence of dacoity, it was
  not legal and proper to convict the appellant of the said
  charge; 3) that the story of PW1 was not credible; and 4)
  that there were no injuries on PW1 to infer rape.
D
          Dismissing the appeal, the Court

       HELD: 1. There is no merit in the contention that
  conviction of the appellant is unjustified in view of
E acquittal of the other accused. 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. This Court may have been persuaded to take
  a different view of the evidence but the State did not
F consider it even worthwhile to file an appeal against the
  order of the trial court for reasons best known to it. [Para
  12] [536-D-F]

      2. It cannot be said that a conviction for dacoity with
G murder can be maintained only when five or more
  persons are convicted. PW1's father-in-law 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
H commission of dacoity. If properly convicted each one of
        MANOJ GIRi v. STATE OF CHHATISGARH                 531


them were liable to be punished with death vide Section           A
396 IPC. Since that has not happened the conviction of
five persons - or even one - can stand. Therefore the
conviction of appellant is maintained for the incident in
which there was gang rape of PW1, dacoity and a wanton
murder of the hapless father-in-law of PW1. [Paras 14, 15         B
and 16] [537-C; 538-B-D]

       Raj Kumar Alias Raju v. State of Uttranchal (2008) 11
sec 709: 2008 (5) SCR 1216 - relied on.
     3.1. PW1 disclosed the incident of gang rape to her          C
husband PW2 when he re-gained consciousness on the
incident date 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               D
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. [Para
13] [536-G-H; 537-A]
                                                                  E
     3.2. PW1 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       F
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       G
the accused at identification parade and in the court by
the prosecutrix leaves no manner of doubt that
conviction of the appellant is well founded. [Para 17] [538-
E-G]
                                                                  H
    532      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A                         Case Law Reference:
          2008 (5) SCR 1216        relied on              Para 15
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 470 of 2012.
B
        From the Judgment & Order dated 13.5.2011 of the High
    Court Chhatisgarh, Bench at Bilaspur in Criminal Appeal No.
    351 of 2005.

        Shiva Pujan Singh, Niranjana Singh, Prema Singh, Kumar
C   Rajan Mishra for the Appellant.

          C.D. Singh, Sakshi Kakkar for the Respondent.

          The Judgment of the Court was delivered by
D      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
E undergo imprisonment for life and rigorous imprisonment 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,
F 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.

G      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
H taking her treatment. _It was a lonely road as they were passing
      MANOJ GIRi v. STATE OF CHHATISGARH                   533
                [S.A. BOBDE, J.]
by Koshtha pond at Village Mohtarai, someone focused a torch       A
light on them and then hurled abuses and stopped them. Then
two more persons reached there and caught the cycle of
Ganesh Sahu and stopped him. Two other persons stopped
the cycle of Qomara Sahu. One person inflicted iron ro~ blow
to Ganesh Sahu and another slapped Domara Sahu. They took          B
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       c
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       0
Kumar Suryavanshi, who gave them shelter. She narrated the
incident to Raj Kumar Suryavanshi, who sent Ashok Kumar (PW
13) to lodge the 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                 E
(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 Y2 cm over left
            temporal region.                                       F

      3.    Lacerated wound of 1 cm X Y2 cm. X Y.. cm near
            left eye.

      4.    Swelling of 2 cm X 2 cm over right leg.                G
      5.    Left eye was blackened and swollen.

     6.     Left cheek was swollen.

    4. F'or treatment, Ganesh was admitted in the hospital,        H
    534        SUPREME COURT REPORTS                 [2013) 5 S.C.R.


A   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.
B         2.     Blood was coming from nose and ear.

          3.     Swelling on left temporal region.

       5. Domara Sahu was immediately admitted in Surgical
C 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
D 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:

E         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.
F
          4.     Depressed fracture of temporal bone with swelling.

          5.     Abrasion over forehead.

          6.     Fresh abrasions over both the knees.
G
        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
H
      MANOJ GIRi v. STATE OF CHHATISGARH                     535
                (S.A. BOBDE, J.]
findings of the trial court and the High Court in that regard are   A
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
                                                                    8
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            C
secondary sexual characters were well 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 · D
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 E
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       F
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 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      G
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.
                                                                    H
    536      SUPREME COURT REPORTS                  (2013] 5 S.C.R.


A      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 (?)(g) of the IPC. As regards the
B 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.
c         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.

D       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.
E 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
F known to,U.

         1:}.° The second contention is that the story of the
   prosec::utrix is not credible for several reasons. According to the
   leariled counsel for the prosecution, the prosecutrix did not
   disclose the gang rape to any one till the next morning i.e on
G 2'6.01.2004 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
H when her statement was recorded. No inference of any lack of
      MANOJ GIRi v. STATE OF CHHATISGARH                      537
                [S.A. BOBDE, J.)
credibility can be drawn from this. The resistance of a woman,       A
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     8
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
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        C
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 -Oacoity with Murder: If any one of five or        D
     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      E
     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 sec
709, which read as follows:
                                                                     F

     "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, however, it may happen     G
     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           H
•




         538      SUPREME COURT REPORTS                    (2013) 5 S.C.R.


     A         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''.
     B
            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
    ·C
       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 was a gang rape, dacoity and a wanton murder of
     D 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
     E 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
     F 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
     G court by the prosecutrix leaves no manner of doubt that
       conviction of the appellant is well founded. In the result, we see,
       no merit in the appeal. It is hereby dismissed.

         B.B.B.                                        Appeal dismissed.