2013 Supreme(SC) 464

Supreme Court of India
T.S. THAKUR & S.A. BOBDE, JJ.
Manoj Giri
Versus
State of Chhatisgarh
Criminal Appeal No. 470 of 2012
Decided On : 08-05-2013

Headnote:Indian Penal Code, 1860- Sections 396 and 376 (2)(g)-Offences of gang rape, dacoity and murder-Prosecution of appellant with co accused persons for committing rape on prosecuterix a married woman, for causing death of her father in law and for committing offence of dacoity-Trial Court while convicting appellant under Sections 395, 396, 397, 398 and 376 (2)(g) ,acquitted co accused persons-Appeal- High Court while maintaining conviction of appellant under Sections 396 and 376 (2)(g) set aside his conviction under Section 395 -Appeal-Held in an offence of dacoity where 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- Instantly prosecuterix’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- No doubt, murder was committed during the conjoint commission of dacoity- If properly convicted each one of them were liable to be punished with death under Section 396 IPC- Since that had not happened conviction of five persons or even one could stand -Conviction of appellant for incident in which there was a gang rape, dacoity and a wanton murder of the hapless father- in-law held sustainable-Appeal dismissed (Paras 14 to 16)

        Criminal Trial-Offence of gang rape-Appeal against conviction- 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- Ample evidence of rape in view of forensic report regarding the clothes of the prosecutrix and those of the Appellant- The report clearly disclosed the presence of semen spots and human sperm on the clothes of the accused including the appellant and the prosecutrix- The entire evidence collected along with the proper and clear identification of the accused at identification parade and in the court by the prosecutrix left no manner of doubt that conviction of appellant was well founded- Appeal dismissed (Para 17)

       Facts of the Case :

        Appellant along with co accused persons was prosecuted herein in the instant case for committing rape on prosecuterix a married woman, for causing death of her father in law and for committing offence of dacoity. Trial Court while convicting appellant under Sections 395, 396, 397, 398 and 376 (2)(g) ,acquitted co accused persons. On Appeal, High Court while maintaining conviction of appellant under Sections 396 and 376 (2)(g) set aside his conviction under Section 395 .

        B. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        A.Instantly prosecuterix’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. No doubt, murder was committed during the conjoint commission of dacoity. If properly convicted each one of them were liable to be punished with death under Section 396 IPC. Since that had not happened conviction of five persons or even one could stand .Conviction of appellant for incident in which there was a gang rape, dacoity and a wanton murder of the hapless father- in-law was held sustainable.

        B. 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 was Ample evidence of rape in view of forensic report regarding the clothes of the prosecutrix and those of the Appellant. The report clearly disclosed the presence of semen spots and human sperm on the clothes of the accused including the appellant and the prosecutrix. The entire evidence collected along with the proper and clear identification of the accused at identification parade and in the court by the prosecutrix left no manner of doubt that conviction of appellant was well founded.

       Result : Appeal dismissed