NEKU KHAN & ORS.versusSTATE OF RAJASTHAN

                          [2009] 1 S.C.R. 70


 A                      NEKU KHAN & ORS.
                                                                    I.
                                 v.
                       STATE OF RAJASTHAN
                  (Criminal Appeal No.100 of 2002)
                         JANUARY 07, 2009
 B
         [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                        SHARMA, JJ.]

        Penal Code, 1860- ss.376, 147, 3231149, 342, 458 and
   366 - Rape and abduction - Five accused - Conviction of,
 c on the ground that they assaulted the brother of prosecutrix,
   abducted the prosecutrix and thereafter accused no. 1 raped
   her - Appeal against conviction - Held: Plea that prosecutrix
   was married to accused no. 1 and therefore there was no rape
   or abduction cannot be accepted, as there was no evidence
 D of marriage - Conviction of accused no. 1 thus upheld -
   Conviction of accused no.2 also upheld as his role was clearly
   established from evidence of prosecutrix and two other PWs
   - However, conviction of accused nos.3 to 5 set aside in the
   absence of any evidence to link them with the alleged offence
·E - Crime against Women.
        According to the prosecution, on the fateful night
   while prosecutrix (PW5) and her family members
   including PWs 2 and 4 were sleeping in the house, the
   accused - appellants arrived there armed with iron rod
 F and lathis, assaulted PW2 and abducted the prosecutrix.

        It is alleged that thereafter the accused stripped the
   clothes of prosecutrix and appellant no.1 raped her for
   two nights. Referring to the evidence of PWs 2, 4 and 5,
   the trial court convicted appellant no.1 under ss.376, 147,
 G
   323/149, 342, 458 and 366 IPC and the other appellants
   under ss. 147, 3231149, 342, 458 and 366 IPC. The High
   Court upheld the conviction.
          The conviction of the appellants was challenged
  H                            70
            NEKU KHAN & ORS. v. STATE OF RAJASTHAN                71


        before this Court on the ground that two defence               A
        witnesses had categorically stated that the prosecutrix
        was married to appellant no.1 and therefore there was no
        rape or abduction. It was further contended that there was
        no evidence to link the appellants 3 to 5 with the alleged
        offence.                                                       B
            Disposing of the appeal, the Court
             HELD: 1. There was no evidence of the marriage as
        claimed. The evidence of DW2 on which strong reliance
        was placed to contend that there was a marriage, it did        c
        not in fact substantiate the claim. DW2 in his cross
'       examination admitted that the Kazi writes their nikah. No
        signature or thumb impression was obtained and the
        Kazi who is claimed to have solemenised the nikah was
        not examined. Though it was submitted that there is no
                                                                       D
        need for such writing, but in any event DW1, who claimed
        to have settled the marriage, accepted that same is the
        procedure. Thus there was no other material adduced to
        say that the appellant 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      E
        Court cannot be faulted. [Para 5] [74-C-E]
            2. So 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        F
        the evidence of the PW 5. That being so the appeal fails
        so far as they are concerned. [Para 6] [74-F]
            3. The submission that there was practically no
        evidence to link the other appellants with the crime is
        however accepted. Their conviction is set aside. [Para 7]      G
        [74-G]
    ~       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
        No.100 of 2002.
            From the final Judgment and Order dated 19.3.2001 of the   H
    72        SUPREME COURT REPORTS              [2009] 1 S.C.R.


A High Court of Judicature for Rajasthan at Jodhpur in Criminal
  Appeal No. 70 of 1985.
        Shoaib Ahmad Khan and Anis Ahmed Khan for the
    Appellants.
B       Naveen Kr. Singh, Shashwat Gupta and Aruneshwar
    Gupta for the Respondent.
         The Judgment of the Court was delivered by
       DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
c 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
0
  366 IPC.
         2. Prosecution version as unfolded during trial is as
    follows:
       Between the intervening night 13.9.1984 and 14.9.1984
E Muse Khan (PW-2), Janu Khan (PW-4), Prosecutrix (PW-5),
  wife Reshma, lndro (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
F 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
G 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
H dressed .her with new clothes and ornaments and then Neku
             NEKU KHAN & ORS. v. STATE OF RAJASTHAN                 73
                      [DR. ARIJIT PASAYAT, J.]
       Khan did bed work like husband-wife, she stayed there for two A
       nights and for two nights Neku Khan did bed work with her,
       thereafter the poliGe arrived there with her father, the accused
       persons ran away, the police brought her to Mandli Police .
       Station.
                                                                        B
            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 c
         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 D
..;   -· by the evidence of Doctor who is completely independent
         witness. lshaqu (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 lshaqu (PW 3). (PW 4) Janu
         Khan , was also present when the abduction took place. He
                                                                         E
         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 F
         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 G
         directed conviction and imposed sentence as aforenoted.
~
            3. lri 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
                                                                          H
    74         SUPREME COURT REPORTS               [2009] 1 S.C.R.


A the marriage of the victim with appellant N_o. 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 offence.
        4. Learned counsel for the State on the other hand
8
    supported the judgment of the trial court and the High Court.
         5. We find that there was no evidence of the marriage as
  claimed. The evidence of Bhouware Khan (OW 2) on which
  strong reliance was placed to contend that there was a
c marriage, it did not in fact substantiate the claim. Bhouware
  Khan (OW 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
  solernenised the nlkah was not examined. It is submitted that
0 there is no need for such writing. But in any event OW 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
E trial court and maintained by the High Court cannot be faulted.
        6. So 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
F concerned.
       7. It 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
G executed by them shall stand discharged. The appellants 1 &
  2 Neku Khan and Sarne Khan shall surrender to custody to
  serve the remainder of sentence. The appeal is disposed of in
  the aforesaid terms.

H 8.8.B.                                      Appeal disposed of.