REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.100  OF 2002

Neku Khan & Ors. ….. Appellants

Versus

State of Rajasthan  ….Respondent  

J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1. Challenge 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 IPC.

2. Prosecution version as unfolded during trial is as follows:

Between the 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

2

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

3

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.

3. In 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 offence.

4. Learned  counsel  for  the  State  on  the  other  hand  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 (DW 2) on which strong reliance was placed to

contend that there was a marriage, it did not in fact substantiate the claim.

4

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.   

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 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 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.

...………….................................J.           (Dr. ARIJIT PASAYAT)

                  …..................................................J.

                 (Dr. MUKUNDAKAM SHARMA)  New Delhi, January 7, 2009   

6