Rajasthan High Court - Jodhpur
State vs Neku Khan And Ors on 19 June, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:21588-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 708/2000
State of Rajasthan
----Appellant
Versus
1. Neku Khan s/o Mahendra Khan
2. Kamehkhan s/o Mahendra Khan
3. Aakukhan s/o Mahendra Khan
4. Baksekhan s/o Mahendra Khan
5. Jaanukhan s/o Mahendra Khan
6. Hinglajdan s/o Mooldan
7. Kailashdan s/o Mooldan.
All residents of Koduka, P.S. Mandli, District Barmer.
----Respondents
For Appellant(s) : Mr. Ramesh Dewasi, PP
For Respondent(s) : Mr. Mahipal Bishnoi
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA Judgment Reserved on 02/05/2025 Pronounced on 19/06/2025 Per Dr. Pushpendra Singh Bhati, J:
1. In the instant criminal appeal, the appellant-State has challenged the judgment of acquittal dated 20.04.2000 passed by the learned Sessions Judge, Balotra, District Barmer ('Trial Court') in Sessions Case No.3/99 (State of Rajasthan Vs. Neku Khan & Ors.), whereby the accused-respondents herein were acquitted of the charges against them under Sections 147, 302 read with Sections 149 & 201 IPC.(Downloaded on 19/06/2025 at 10:19:25 PM)
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2. The matter pertains to an incident which had occurred in the year 1998 and the present appeal has been pending since the year 2000.
3. Brief facts of this case, as placed before this Court by the learned Public Prosecutor appearing on behalf the appellant-State, are that one Samme Khan (complainant) lodged an FIR (Ex.13) dated 04.08.1998 at around 9:00 a.m., before the SHO, Police Station Mandli, alleging therein that on 03.08.1998, his father (Wali Khan) went to Patodi in connection with some work, but when on the same date, he (complainant's father) did not return, the complainant and his mother became worried, in particular, on count of enmity and litigation between the complainant and the accused parties.
3.1. It was further alleged that in such circumstances, the complainant went to search for his father and when he reached the Dhani of Bhopa Ram Jat, the complainant saw his father coming, whereafter, both of them departed from the said place; while the complainant and his father were on their way and reached near "Paani Ka Wala", they saw the accused-respondents coming on a camel-cart. On reaching near the complainant and his father, accused-respondent Nekukhan said that there the enemies have come, and while saying so, the accused-respondents ran after the complainant and his father.
3.2. As alleged, at the relevant time, accused-respondents Neku Khan and Jaanukhan were armed with lathis and all the accused- respondents herein, with an intention to kill the complainant's father, caught-hold of him and started beating and dragging him; (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (3 of 17) [CRLA-708/2000] thereafter, on being asked by his father, the complainant ran away from the spot, and returned back to his Dhani. The said incident, as reported, had happened at around 9:00 p.m. on 03.08.1998. 3.3. It was also alleged that later, the complainant and his younger brother Kammu Khan alongwith their mother searched for Wali Khan (father of complainant) the whole night, but failed to find him nearby, whereupon all the three returned back to their Dhani.
3.4. Thereafter, in the morning on 04.03.1998, at around 6:00 a.m., one Suraj Singh arrived at the Dhani of Shanker Singh and informed him that Wali Khan (father of complainant) had been killed by the accused-respondents and his body was lying in the fields of accused-respondent Neku Khan; the said information thereafter was conveyed to the complainant party by Shankar Singh, and thereupon, they reached the fields of Neku Khan and saw the body of Wali Khan (deceased). It was further alleged that at that time, accused-respondent Jaanukhan was standing near the body of the deceased, who told the complainant party that in case any police action is initiated, the members of the complainant party would be killed in the same manner.
3.5. On the basis of the aforementioned FIR, a case was registered under Sections 302, 201, 143 & 149 IPC and the investigation began accordingly. Upon completion of the investigation, a charge-sheet was filed against the accused- respondents under Sections 302, 201, 364 & 147 IPC before the concerned Court, and after hearing arguments on the stage of framing of charge, the charge under sections 147, 302/149 and (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (4 of 17) [CRLA-708/2000] 201 were read over to the accused-respondents, who denied the same and claimed trial, and the trial commenced accordingly. 3.6. Owing to the nature of offences charged, the matter was committed to the Court of Sessions, wherefrom the case was transferred to the learned Trial Court for the necessary trial. 3.7. During the course of trial, the statements of 20 witnesses (P.W. 1 to P.W. 20) were recorded, and documents (Ex.P.1 to 48) & Articles (Articles 1 to 13) were exhibited on behalf of the prosecution; in defence, witness D.W. 1 was produced and documents (Ex.D.1 to Ex.D.3) were exhibited, for examination; whereafter, the accused-respondents were examined under Section 313 Cr.P.C., in which they pleaded innocence and false implication in the criminal case in question.
3.8. After conclusion of the trial, the learned Trial Court, while finding that the prosecution has not been able to prove its case beyond all reasonable doubts, acquitted the accused-respondents herein of the charges against them, as above, vide the impugned judgment of acquittal dated 20.04.2000; against which, the present appeal has been preferred by the appellant-State.
4. Learned Public Prosecutor appearing on behalf of the appellant-State submitted that the accused-respondents and deceased had prior dispute and animosity. It was submitted that that Sammekhan (P.W.5 and the son of the deceased) has deposed in his testimony that the accused-respondents and his father had a prior animosity, and Indra (P.W.13) who is wife of the deceased further corroborated the testimony of P.W.5. Furthermore, it was submitted that Mangaram (P.W.12) confirms (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (5 of 17) [CRLA-708/2000] that the deceased once told him that there is dispute between the accused-respondents and the brother of the deceased, and there is danger to his life in coming days. It was submitted that this statement of the deceased made to P.W.12 would tantamount to dying declaration of the deceased.
4.1. Learned Public Prosecutor further submitted that there is also an extra-judicial confession on record, wherein the accused- respondents have admitted the guilt of the crime in question. It was submitted that Sankar Singh (P.W.2) has stated in his testimony that the accused-respondent Jaanukhan told the said witness that they have murdered the deceased. Moreover, it was contended that when P.W.5 and P.W.13 reached the place of incident, accused-respondent Jaanukhan threatened to end their lives.
4.2. Learned Public Prosecutor also submitted that Sammekhan (P.W.5) the son of the deceased is the eyewitness to the said incident, and he has clearly stated that when the said witness went to find his father, on their way back after finding him, the accused-respondents came and gave beating to the deceased with lathis.
4.3. Learned Public Prosecutor further submitted that the Dr. Mahendra Prakash Soni (P.W.14) has stated in his testimony that on 04.08.1998 he conducted the postmortem of the deceased and prepared the Postmortem Report (Ex.P. 22). It was submitted that the said witness and the postmortem report reveals that the deceased has as many as 11 injuries on his body, and opined that the cause of death was internal bleeding, hypopolimic shock, (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (6 of 17) [CRLA-708/2000] asphyxia due to throat strangulation, cervical fracture and throttling. It was submitted that it was opined by the said doctor that such injuries are sufficient in ordinary course of nature to cause death.
4.3.1. Learned Public Prosecutor also submitted that the Postmortem Report (EX.P.22) reflects that the death was caused on 03.08.1998 at around 9:00 p.m, and the testimony of the P.W.5 also ascribes the accused-respondents beating the deceased at around the same time and date.
4.4. Learned Public Prosecutor further submitted that Chandan Singh (P.W.18) states that the body of the deceased was found in the Bada of accused-respondent Neku khan, however the incident occurred at a different location as apparent from the testimony of P.W.5. Thus, it was contended that the accused-respondent had attempted to cause the disappearance of evidence of the crime under question herein.
4.5. Learned Public Prosecutor has also submitted that the recoveries have been made at the instance of accused- respondents. It was submitted that at the instance of accused- respondent Kamekhan a Lakdi was recovered upon which group 'A' blood was found, at the instance of accused-respondent Baksekhan a Lathi was recovered, at the instance of accused- respondent Jaanukhan a Lathi was recovered, at the instance of accused-respondent Nekukhan a Lathi was recovered, at the instance of Kailashdan the camel-cart and camel were recovered. (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (7 of 17) [CRLA-708/2000] 4.6. Learned Public Prosecutor also submitted that Rahim Khan (D.W.1) who has claimed the defence of plea of alibi, but the same was not substantiated by any specific date etc.
5. On the other hand, Mr. Mahipal Bishnoi, learned Amicus Curiae for the accused-respondents while opposing the submissions made on behalf of the appellant-State, submitted that even though the prosecution has alleged motive on the part of accused-respondents for committing the crime in question, no evidence was brought on record to substantiate the said motive. It was submitted that no document was presented by the prosecution, which proves the legal proceeding and the dispute between the deceased and the accused-respondents. 5.1. Learned counsel also submitted that the extra-judicial confession alleged by the prosecution is not reliable. It was submitted that Surat Singh (P.W.1) was declared hostile, and Sankar Singh (P.W.2) has for the first time in his deposition stated that the extra-judicial confession was made to him; however, in the statement before the police (Ex.P.1) P.W.2 did not state anything about the said confession. Moreover, in the FIR it was stated that one Suraj Singh came and told P.W.2 that the dead body of the deceased is lying in the field of accused-respondent Neku Khan.
5.2. Learned counsel further submitted that Sammekhan (P.W.5), the alleged eyewitness to the crime in question is not trustworthy and is completely unreliable, rather he is a cooked witness. It was submitted that there were multiple inconsistencies in the statement of said witness, moreover the conduct of the said (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (8 of 17) [CRLA-708/2000] witness when he saw his father being beaten up was unnatural. The said witness has deposed that upon being asked by his father to run away he ran away; he did not even try to intervene and save his father. It was further contended that there were multiple houses in between the place of incident and his home, however the said witness did not even try to call anyone for help, and has deposed he straightaway went to his home. It was contended that the conduct subsequent to the event is also not natural, the said witness has deposed that he went to search for his father along with his mother, and upon not being able able to find him they returned home and slept. It was submitted Indra (P.W.13) stated that when they could not find the deceased, they did not tell or inform anyone else, they came back home and slept. Moreover, it was submitted despite P.W.5 seeing his father being beaten up, he did not inform police about the incident at night. 5.2.1. Learned Counsel also submitted that there are multiple inconsistencies within the statement of P.W.5 before the police (Ex.D.1), F.I.R. (Ex.P.13) and the Court testimony. 5.3. Learned Counsel further submitted that the testimony of the doctor and post mortem report reveal multiple injuries were found on the body of the deceased, however, the injuries cannot be attributed the accused-respondents. It was contended that the recoveries made from accused-respondents do not prove anything as they were not sent to forensic science laboratory. The learned counsel submitted that only the recovery of lathi made from the accused-respondent Kamekhan was sent to forensic science laboratory, and it was not opinied in the report prepared therein (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (9 of 17) [CRLA-708/2000] that the blood found on the lathi was of the deceased. Moreover, it was contended that the recoveries were made from open places accessible to many persons, and all the recoveries were made on the same date on 08.08.1998.
5.4. Learned counsel had drawn the attention of this court towards the testimony of D.W.1, who has given testmony that accused-respondent Neku Khan and his family came to a dargah to offer prayers at the relevant time.
6. Heard learned counsel for the parties as well as perused the record of the case.
7. This Court observes that the present criminal appeal has been preferred by the appellant-State against the judgment of acquittal dated 20.04.2000 passed by the learned Sessions Judge, Balotra, District Barmer, in Sessions Case No. 3/99, whereby the accused-respondents were acquitted of the charges under Sections 147, 302 read with 149, and 201 IPC. The dispute stems from an incident dated 03.08.1998, wherein the complainant's father, Wali Khan, was allegedly assaulted and killed by the accused-respondents owing to a purported prior enmity. An FIR was lodged the following morning, leading to registration of a case and initiation of investigation. Upon completion of investigation, a charge-sheet was filed, and trial commenced. After evaluating the evidence on record, the learned Trial Court acquitted the accused- respondents, observing that the prosecution had failed to establish its case beyond reasonable doubt, giving rise to the present appeal.
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8. This Court observes that the prosecution has been able to establish the existence of motive for the commission of the crime. P.W.5 (Samme Khan), who is the son of the deceased, deposed regarding prior enmity between the deceased and the accused- respondents. His testimony was duly corroborated by P.W.13 (Indra), wife of the deceased, and further supported by P.W.12 (Mangaram), who testified that the deceased had expressed fear for his life due to the said enmity. These testimonies collectively indicate the presence of animosity, thereby substantiating the element of motive.
9. This Court further observes that the death of the deceased Wali Khan was clearly homicidal in nature. The Postmortem Report (Ex.P.22) as well as the medical testimony of Dr. Mahendra Prakash Soni (P.W.14) reveal that the deceased sustained as many as eleven injuries, including signs of throttling, cervical fracture, and internal bleeding. The doctor also opined that the said injuries were sufficient in the ordinary course of nature to cause death, leaving no doubt that the death was homicidal in nature.
10. However, this Court finds that the prosecution has failed to conclusively attribute the said injuries to the accused- respondents. The testimony of the alleged eyewitness P.W.5 is fraught with inconsistencies and his conduct during and after the incident appears unnatural. Despite witnessing his father being beaten, he did not intervene, call for help from nearby houses, or report the matter to the police promptly. His version of events is inconsistent across the FIR, police statement, and court deposition, thereby rendering his testimony unreliable. (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (11 of 17) [CRLA-708/2000] 10.1. This Court finds that the said witness while registering F.I.R. (EX.P.13) only mentioned lathis with Neku Khan and Jaanukhan, and in his statement before the police stated that he did not see lathis in the hands of accused-respondents Kailashdan, Hinglajdan and Aakukhan, whereas in his testimony before the court alleged that all the accused-respondents had weapons with which they attacked his father(deceased).
10.2. This Court finds that the said witness in the F.I.R. stated that the body of deceased was lying in the field of Neku Khan, whereas in the testimony stated that the dead body was lying in bada of Sankar Singh.
10.3. This Court finds that the said witness in the F.I.R. gave no description of injuries suffered by his father, but in his testmony gives a detailed description of injuries suffered by his father. 10.4 This Court finds that said witness in the F.I.R. reported that after the incident he along with his mother and brother searched for the deceased the whole night, whereas in his testimony stated that they returned home after searching for the deceased. 10.5. This Court finds that said witness in the F.I.R. stated Jaanukhan threatened him to his life and that he initiated police proceedings, whereas P.W.13 (wife of the deceased and mother of P.W.5) stated the threat was given to her.
11. This Court further observes that the alleged extra-judicial confession made by accused-respondent Jaanu Khan to P.W.2 (Shankar Singh) cannot be relied upon. The said witness stated for the first time in his deposition before the Court that the accused confessed to the crime. However, Ex.D.1 mentioned no (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (12 of 17) [CRLA-708/2000] such statement being made to P.W.2, thereby casting doubt on the veracity of the claim of the said witness. Moreover, the FIR (Ex.P.13) specifically attributes accused-respondents proving the information about the location of the deceased's body to one Suraj Singh and not any confession made by the accused-respondents to P.W.2., and Surat Singh (P.W.1) in his testimony has stated that no such confession was made to him. In the absence of any corroboration or consistency, this Court finds that the extra- judicial confession, being a weak piece of evidence, does not inspire confidence and is thus unworthy of reliance.
12. Furthermore, the Court finds that the recoveries made at the instance of the accused-respondents do not sufficiently establish their involvement in the crime. Except for the recovery from accused Kame Khan, none of the recovered items were sent to the forensic science laboratory. Even in the case of the lathi recovered from Kamekhan, no forensic conclusion was drawn linking the blood on the weapon to the deceased. All recoveries were made on the same day and from open places accessible to many persons, thereby weakening their probative value.
13. This Court also takes note of the defence evidence led by the accused-respondents, including the testimony of D.W.1, who deposed that accused Neku Khan and his family were present at a religious site at the relevant time. Although the said alibi lacks precise date reference, it casts a reasonable doubt over the presence of the accused at the crime scene, particularly in view of the prosecution's weak and contradictory evidence. (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (13 of 17) [CRLA-708/2000]
14. In light of the above discussion, this Court finds that while the motive and homicidal nature of death stand established, the prosecution has not been able to prove the charges against the accused-respondents beyond reasonable doubt. The evidence falls short of the standard required for conviction, and the benefit of doubt must necessarily go to the accused.
15. This Court is of the also considered view that in circumstances such as the present, judicial scrutiny must be guided by the quality rather than the quantity of the testimonies adduced. Where significant contradictions are apparent in the statements of the alleged eye-witness, particularly concerning material aspects required to establish the culpability of the accused-respondents, the benefit of such doubt must necessarily enure to the advantage of the accused-respondents. Moreover, this Court is conscious of the judgment of the Hon'ble Apex Court in the case of Krishnegowda & Ors. vs. The State of Karnataka, (2017) 13 SCC 98, wherein it was observed that "witnesses are the eyes and ears of justice" and when the evidence of the witnesses is filled with discrepancies, contradictions and improbable versions, then an irresistible conclusion is that the evidence of such witnesses cannot become a basis to convict the accused and it is a duty of the Court to consider the trustworthiness of the evidence on record.
16. This Court also observes that the prosecution story was not in consonance with the testimonies of the witnesses and the evidence produced during the trial, in order to prove a case beyond all reasonable doubts against the accused-respondents (Downloaded on 19/06/2025 at 10:19:25 PM) [2025:RJ-JD:21588-DB] (14 of 17) [CRLA-708/2000] and there is also a possible view of innocence of the accused- respondents.
17. At this juncture, this Court deems it appropriate to reproduce the relevant portions of the judgments rendered by the Hon'ble Apex Court in the cases of Mallappa & Ors. Vs. State of Karnataka (Criminal Appeal No. 1162/2011, decided on 12.02.2024) and Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka (Criminal Appeal No. 985/2010, decided on 19.04.2024), as hereunder-:
Mallappa & Ors. (Supra):
"36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as:
(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral or documentary;
(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;
(iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;
(iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;
(v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts;(Downloaded on 19/06/2025 at 10:19:26 PM)
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(vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court." Babu Sahebagouda Rudragoudar and Ors. (Supra):
"38. Further, in the case of H.D. Sundara & Ors. v. State of Karnataka (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows:
"8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
39. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:
(a) That the judgment of acquittal suffers from patent perversity;
(b) That the same is based on a misreading/omission to consider material evidence on record;(Downloaded on 19/06/2025 at 10:19:26 PM)
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(c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
18. This Court further observes that the learned Trial Court passed the impugned judgment of acquittal of the accused-respondents under sections 147, 302/149 and 201 IPC which in the given circumstances, is justified in law, because as per the settled principles of law as laid down by the Hon'ble Apex Court in the aforementioned judgments, to the effect that the judgment of the Trial Court can be reversed by the Appellate Court only when it demonstrates an illegality, perversity or error of law or fact in arriving at such decision; but in the present case, the learned Trial Court, before passing the impugned judgment had examined each and every witnesses at a considerable length and duly analysed the documents produced before it, coupled with examination of the oral as well as documentary evidence, and thus, the impugned judgment suffers from no perversity or error of law or fact, so as to warrant any interference by this Court in the instant appeal.
19. This Court also observes that the scope of interference in the acquittal order passed by the learned Trial Court is very limited, and if the impugned judgment of the learned Trial Court demonstrates a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal as held by the Hon'ble Apex Court in the aforementioned judgment, and thus, on that count also, the impugned judgment deserves no interference by this Court in the instant appeal. (Downloaded on 19/06/2025 at 10:19:26 PM)
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20. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case as well as in light of the aforementioned precedent laws, this Court does not find it a fit case warranting its interference.
21. Consequently, the present appeal is dismissed. 21.1. Keeping in view the provision of Section 437-A Cr.P.C./481 B.N.S.S., each of the accused-respondents are directed to furnish a personal bond in a sum of Rs. 25,000/- and a surety bond each in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-respondents, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as they would be called upon to do so.
21.2. All pending applications stand disposed of. Record of the learned Trial Court be sent back forthwith.
22. This Court is thankful to Mr. Mahipal Bishnoi, who has rendered his assistance as Amicus Curiae, on behalf of the accused-respondents, in the present adjudication. (CHANDRA SHEKHAR SHARMA),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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