Dr. Arijit Pasayat, J.— 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 1, Neku Khan for offences punishable under Sections 376, 147, 323/149, 342, 458 and 366 of the Penal Code, 1860 (in short “IPC”). The other appellants were convicted for offences punishable under Sections 147, 323/149, 342, 458 and 366 IPC.
2. The prosecution version as unfolded during trial is as follows:
Between the intervening night of 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, the accused persons Neku Khan, Bakhsu Khan, Barkat Khan, Ali Sher and Same Khan arrived on a Nisan vehicle. The accused Barkat was having an iron rod and the other persons were having lathis, they beat Muse Khan (PW 2) and placed the 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 the prosecutrix, for some time walked on foot, after a while the accused Same Khan came with a camel and made the 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 chargesheet was filed and since the accused persons pleaded innocence they were put on trial.
3. 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 the 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 the doctor who is a 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).
4. Janu Khan (PW 4) 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).
5. Two witnesses were examined by the appellant to show that the victim was married to Appellant 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 and 5 and held the appellant guilty and directed conviction and imposed sentence as aforenoted.
6. 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 DWs 1 and 2 categorically stated about the marriage of the victim with Appellant 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 Appellants 3 to 5 with the offence.
7. Learned counsel for the State on the other hand supported the judgment of the trial court and the High Court.
8. 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, did not in fact substantiate the claim. Bhouware Khan (DW 2) in his cross-examination admitted that the Kazi wrote their nikah. No signature or thumb impression was obtained and Kazi Yusuf Khan who is claimed to have solemnised 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 Accused 1 and the prosecutrix were married. That being so the conviction of Appellant 1 as recorded by the trial court and maintained by the High Court cannot be faulted. So far as the role played by Appellant 2 is concerned, the same was clearly established by the evidence of injured witnesses PW 2 and PW 4, apart from the evidence of PW 5. That being so the appeal fails so far as they are concerned.
9. It is rightly contended by the learned counsel for the appellants that there is practically no evidence to link 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. Appellants 1 and 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.