Neku Khan & Ors.
Vs. State of Rajasthan  INSC 19 (7 January 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.100 OF 2002 Neku
Khan & Ors. .....
State of Rajasthan ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned single Judge of the Rajasthan
High Court at Jodhpur upholding the conviction of appellant No.1 Neku Khan for
offence punishable under Sections 376, 147, 323/149, 342, 458 and 366 of the
Indian Penal Code, 1860 (in short the `IPC') The other appellants were
convicted for offence punishable under Section 147, 323/149, 342, 458 and 366
version as unfolded during trial is as follows:
intervening night 13.9.1984 and 14.9.1984 Muse Khan (PW-2), Janu Khan (PW-4),
Prosecutrix (PW-5), wife Reshma, Indro (PW- 6) wife of Bakhsu Khan, Makhni
(PW-7) wife of Sachchu Khan were sleeping at the house of Bakhsu Khan in
village Raivada, accused persons Neku Khan, Bakhsu Khan, Barkat Khan, Ali Sher
and Same Khan arrived on a Nisan vehicle, the accused Barkat was having the
iron rod and the other persons were having lathis, they beat Muse Khan (PW-2)
and placed Prosecutrix daughter of Bakhsu in Nisan vehicle forcefully and went
away, the accused Same Khan shut her mouth with hand and then got down at Gida
village with Prosecutrix, for some time walked on foot, after a while the
accused Same Khan came with a camel and made Prosecutrix ride the camel.
Another man also rode and Neku Khan, Same Khan and Bakhsu Khan walked on feet
and then took her to the Dadi of the accused, stripped her clothes and dressed
her with new clothes and ornaments and then Neku Khan did bed work like
husband-wife, she stayed there for two nights and for two nights Neku Khan did
bed work with her, thereafter the police arrived there with her father, the
accused persons ran away, the police brought her to Mandli Police Station.
After completion of
investigation charge sheet was filed and since accused persons pleaded
innocence they were put on trial.
Dr. Mangi Lal Bohra
(PW 1) has proved the injuries caused to Muse Khan on the date of incident by
the accused persons while abducting the prosecutrix. PW-2 is Muse Khan who is
brother of prosecutrix and he has deposed that he was asleep when he was
assaulted. He saw the accused assaulting his brother and then saw them taking
away his sister. The fact that Muse Khan was assaulted by the accused, stands
corroborated by the evidence of Doctor who is completely independent witness.
Ishaqu (PW 3) at whose place, the accused is alleged to have kept the
prosecutrix. The prosecution has proved the state of prosecutrix at the place
of Ishaqu (PW 3). (PW 4) Janu Khan , was also present when the abduction took
place. He saw the accused assaulting Muse Khan and abducting the prosecutrix.
He is the person who has lodged the report of the incident to the police. The
testimony of Muse Khan that he was assaulted and abduction of prosecutrix is
thus corroborated by testimony of Janu Khan. The prosecution version relied
primarily on the evidence of Prosecutrix (PW 5). Two witnesses were examined by
the appellant to show that the victim was married to appellant no. 1 and
therefore there was no rape as contended and no abduction. The trial court and
the High court did not find any substance in the plea. They referred to the
evidence of PWs 2,4 & 5 and held the appellant guilty and directed
conviction and imposed sentence as aforenoted.
support of the appeal, learned counsel for the appellant submitted that the
trial court and the High Court lost sight of the fact that the DWs 1 & 2
categorically stated about the marriage of the victim with appellant No. 1.
That being so the
question of any rape or abduction as claimed does not arise. It is further
pointed out that there is no evidence to link the appellants 3 to 5 with the
counsel for the State on the other hand supported the judgment of the trial
court and the High Court.
find that there was no evidence of the marriage as claimed. The evidence of
Bhouware Khan (DW 2) on which strong reliance was placed to contend that there
was a marriage, it did not in fact substantiate the claim.
Bhouware Khan (DW 2)
in his cross examination admitted that the Kazi writes their nikah. No
signature or thumb impression was obtained and the Kazi Yusuf Khan who is
claimed to have solemenised the nikah was not examined. It is submitted that
there is no need for such writing. But in any event DW 1 who is claimed to have
settled the marriage accepted that same is the procedure. Thus there was no
other material adduced to say that the accused no.1 and the prosecutrix were
married. That being so the conviction of appellant No.1 as recorded by the
trial court and maintained by the High Court cannot be faulted.
far as the role played by appellant No. 2 is concerned the same was clearly
established by the evidence of injured witnesses PW 2 and PW 4, apart from the
evidence of the PW 5. That being so the appeal fails so far as they are
is rightly contended by learned counsel for the appellants, that there is
practically no evidence to link with the other appellants i.e. Ali Sher, Bakhsu
Khan and Barkat Khan with the crime. Their conviction is set aside.
The bail bonds
executed by them shall stand discharged. The appellants 1 5 & 2 Neku Khan
and Same Khan shall surrender to custody to serve the remainder of sentence.
The appeal is disposed of in the aforesaid terms.
(Dr. ARIJIT PASAYAT)