LexNEKU KHAN & ORS. versus STATE OF RAJASTHAN
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[2009] 1 S.C.R. 70 A NEKU KHAN & ORS. v. I. 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 c 366 - Rape and abduction - Five accused - Conviction of, 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 D or abduction cannot be accepted, as there was no evidence 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 F accused - appellants arrived there armed with iron rod 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, G the trial court convicted appellant no.1 under ss.376, 147, 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 E as recorded by the trial court and maintained by the High Court cannot be faulted. [Para 5] [7 4-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 0 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 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 Raivad
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