BHAGWANE KHAN & ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal has been preferred by Bhagwane Khan Alias Bhagwan, Jagmal Khan, Mangu Khan Alias Mangl Lal and Surje Khan Alias Surja against the judgment dated 30.4.1991 delivered by the Special Judge SC/ST (Prevention of Atrocities) Court, Bikaner. All the four appellants have been found guilty under Sections 366 and 376 of the Indian Penal Code. Under Section 366 of the Indian Penal Code, each one has been awarded five years R.I. and a fine of Rs. 500/-. For non-payment of fine further R.I. for one year has been awarded. For the offence under Section 376 of the Indian Penal Code, each one has been awarded 10 years R.I. and a fine of Rs. 1,000/- and for non-payment of fine further R.I. for one year.

(2.) The prosecution story, in brief, is that on 15.7.1989, PW5 Bheru Khan S/o Hazari Khan, resident of Village Chitana lodged an oral F.I.R., Ex.P2 at Police Station Panchu. According to the F.I.R., the sister of the complainant Bheru Khan, PW 3 Kumari Jhankari disappeared from their house sometime during the night interve lg 13/14th July, 1989. At about 4 Oclock, her mother discovered that Kumari Jhankari was not in the house. Accordingly, a search was made and in the morning, DW 1 Khumaram and one Bhanwaroo Khan gave the information that in the earlier hours of 14.7.1989, he and Bhanwaroo Khan saw the accused Bhagwane Khan going with a woman. According to the F.I.R., the accused Bhagwane Khan was accompanied by two more persons, who were Phusaram and Kanaram.

(3.) Accordingly, a case under Sections 363 and 366 of the Indian Penal Code was registered against the three accused-persons Bhagwane, Phusaram and Kanaram. According to the prosecution story, during the investigation Kumari Jhankari was recovered from the possession of accused Bhagwane Khan on 18.7.1989 vide recovery memo Ex.R4. Her statement Ex.D1 under Section 161 of the Criminal Procedure Code was recovered on 18.7.1989, wherein she stated that during the night intervening 13/14th July, 1989, she was sleeping in her house and at about mid- night, she eloped with the accused Bhagwane Khan as per programme. According to her statement (Ex.D1), Bhagwane Khan since long was enticing her to live with him and they both decided that during the night, she will leave her house and go with Bhagwane Khan. After covering certain distance on foot, a jeep, alongwith four persons, was found parked. Mohan Singh, Papiya Bishnoi, Kishan Singh and one more were waiting near the jeep. They went to village Alai in the jeep and stayed in a hut. Next day in the evening, they went to a Railway Station and stayed in a room, where Bhagwane Khan forcibly raped her. Thereafter, she was taken to various villages and also to an Advocate, who got a document thumb-marked from her. After few days, Mohan Singh, Kishan Singh and Bhagwane Khan brought her back to village Alai. Kishan Singh and Mohan Singh went to some unknown destination and Bhagwane Khan took her to a dhani and lodged her there. Again he committed rape in the dhani. Subsequently, she was taken to another dhani, where she was subjected to rape by Bhagwane Khan for two days. On 18.7.1989, while Bhagwane Khan was taking her to some other place, the police intercepted them and she was recovered. In nut-shell, she blamed Bhagwane Khan, Mohan Singh, Kishan Singh, Ganesh and Papiya Bishnoi for taking her forcibly in a jeep. According to the prosecution story, the statement of Jhankari was recorded by the Judicial Magistrate No. 1, Bikaner on 28.7.1989 under Section 164 of the Criminal Procedure Code. In this statement, she stated that it was the accused, Jagmal Khan who entered into her house during the night and when she was offering water to him for drinking, Jagmal Khan, Surje Khan and Bhagwane Khan overpowered her and she was lifted bodily by Surje Khan and was carried in this way to certain distance where a jeep and four persons with a gun were waiting, she was brought to village Alai where Surje Khan, Jagmal Khan, Mangu Khan and Bhagwane Khan committed rape one after the other. She repeated the story that she was taken to Nagaur where she was made to thumb mark on a paper by Bhagwane Khan and ultimately while she was going with Bhagwane Khan, the police intercepted them. After completion of the investigation, a challan was filed against the four appellants in the Court of Judicial Magistrate, Nokha, from where the case was committed to the Court of Sessions Judge, Bikaner and ultimately, it landed in the Court of Special Judge, SC/ST (Prevention of Atrocities) Cases by way of transfer. Charges were framed against all the four appellants under Sections 366 and 376 of the Indian Penal Code. All the four pleaded not guilty.