Delhi District Court
State vs . Ashwani Etc. on 16 September, 2019
IN THE COURT OF SHRI UMED SINGH GREWAL
ADDITIONAL SESSIONS JUDGE/SPECIAL FAST TRACK
COURT (NORTH): ROHINI: DELHI
Sessions Case No : 57515/2016
State
Versus
1). Ashwani
S/o Sh. Swaroop Singh
R/o H. No. 450, Village Holambi
Kalan, Delhi.
2). Sanjay
S/o Sh. Shiv Charan
R/o Village Naharpur,
District Gurgaon, Haryana.
FIR No. : 138/13
Police Station : Shahbad Dairy
Under Sections : 376/506/365/328/366/342/109/34 IPC
Date of Committal to Sessions Court : 17.05.2013
Date on which Judgment reserved : 11.09.2019
Date on which Judgment announced : 16.09.2019
JUDGMENT
1. Mama and Bhanja have been forwarded to face abduction and rape trial.
2. Accused Ashwani Kumar used to reside in H. No. 231, Holambi Kalan, Delhi and he went missing on 11.02.2013 at 9 am for State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 1 of 20 which DD No. 10 PP was registered in PP Metro Vihar on 14.02.2013 on the statement of his wife.
The prosecutrix, who used to reside about 23 houses away from the house of accused Ashwani Kumar, went missing on 14.02.2013 at 5 am for which DD No. 12 PP was registered in PP Metro Vihar on 14.02.2013.
Prosecutrix and accused Ashwani were apprehended from Abohar, Punjab on 13.03.2013 and she was brought to Delhi. She made statement on 15.03.2013 to the effect that she was married about seven years ago and had two daughters from that marriage. Her husband was a labourer. Accused Ashwani used to reside in her neighbourhood with his family and was employed privately. He was on visiting terms with her family members but his intention was not good as he had evil eye upon her. He visited her house several times in the absence of her husband and used to ask her to accompany for strolling for which she always refused. She had complained to her husband about his misdeeds and he had tried several times to make him understand but same was the rut. Ashwani's maternal uncle Sanjay had also visited her house several times with Ashwani and he was also aware of the bad acts of his nephew (Bhanja) as Ashwani had asked her in his presence several times to accompany him for strolling. On 14.02.2013 at about 5 am, when she was going for open defecation, both accused came there on a black bike and stopped near her. Ashwani got off the bike and placed a handkerchief on her mouth which was smelling like medicine and due State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 2 of 20 to that reason, she felt dizziness and she was made to sit on bike by both the accused persons which was driven by accused Sanjay and accused Ashwani was sitting on the last seat. She found herself in a closed room when she regained consciousness. Ashwani was also present there. She was kept confined in that room and Ashwani used to rape her after threatening her. He used to tie her hands and feet and gag her mouth with a cloth whenever he used to go out of the room. She was not aware of her location. He took her out of the room on 13.03.2013 in darkness and was shifting to a different place after threatening. On the way, they came across her mother, husband and police officials. Mother identified her and she and accused Ashwani were apprehended by the police and both were brought to Delhi. She could not make statement earlier due to illhealth. After convalescence, she told her mother and husband about the incident who brought her to the police station.
3. On 19.10.2013, charge U/s 120B IPC and 328/342/365/366/ 120B IPC and Sec. 376(2)(n) IPC was framed against both accused persons to which both accused persons pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 17 witnesses.
5. The prosecutrix deposed as PW9 all the facts which she had stated in complaint Ex.PW9/A upon which FIR was registered. Additionally, she deposed that the police got her medically examined in a hospital situated in Pooth Kalan where her clothes were taken into State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 3 of 20 possession by the doctor. Both accused were arrested at her instance from the house of accused Ashwani vide arrest memos Ex.PW9/B and Ex.PW9/C respectively and their personal search was conducted vide memos Ex.PW9/D and Ex.PW9/E respectively. She admitted that her statement Ex.PW9/F, bearing her signature at pointsA and B was recorded U/s 164 Cr.P.C. She identified her kurta and salwar as Ex.P1 and Ex.P2.
PW14 Sushil is the husband of the prosecutrix and he deposed that accused Ashwani used to reside in his neighbourhood and his intention was not good as he had bad eye upon his wife as he used to visit his house in his absence and he used to ask her to accompany her to market for meal and shopping. He visited the house of accused Ashwani once in order to make him understand but he did not budge. He next deposed that his wife had gone to attend the call of nature in fields on 14.02.2013 at about 5 am but she did not return till 11 - 11.30 am and hence, he lodged a missing report. He next deposed that he was told by the police officials in the evening of 12.03.2013 that they had come to know that his wife was present in Punjab and that he would have to accompany them there. So, he left for Punjab with police, his motherinlaw, uncle's Braham Prakash and Kartar Singh reached there at about 8 pm on 13.03.2013. He could not recollect the name of the police station from which they had taken the help of police. He next deposed that they were searching Ashwani and his wife in a vehicle when her motherinlaw spotted both on the road and hence, the vehicle State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 4 of 20 was stopped and both were apprehended and were taken to the police station where signatures of all persons were obtained on some papers and they returned to Delhi on 14.03.2013 in the morning at 8 am.
PW15 Smt. Sona, mother of the victim, deposed all the facts on oath stated by PW14.
PW5 W/Ct. Sudesh alongwith SI Anju Dahiya took prosecutrix and her husband to M.V. Hospital where she was medically examined and after examination, the doctor handed over her (victim's) exhibits in sealed condition which she gave to the IO who seized the same vide seizure memo Ex.PW5/A. She deposed that they went to Village Holambi Kalan from the hospital and IO prepared rough site plan of the place of incident at the instance of prosecutrix. The victim was handed over to her mother and they returned to the police station.
PW2 Dr. Yudhvir Singh identified the signature and handwriting of Dr. Lokesh Vijay and Dr. Naveen Nayan who had examined and prepared the MLCs of the victim on 15.03.2013 and 17.03.2013 respectively in M.V. Hospital. He deposed that he was acquainted with the handwriting and signatures of those doctors as they had worked with him.
PW3 Dr. Luxmi Dwivedi was examined in chief partly on 03.02.2014 and thereafter, she did not appear for further examination in chief and cross examination. She deposed that the prosecutrix was referred to S.R. Gynae on 15.03.2013 by CMO Dr. Lokesh Vijay with the history of sexual assault. The patient told her that she was State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 5 of 20 kidnapped by two persons known to her husband and was kept in confinement for one month at an unknown place and they had raped her.
PW13 Dr. Geetanjali Singh identified the handwriting and signatures of Dr. Laxmi, S.R. Gynae, who had left the services of the hospital and her present whereabouts are not known. She claimed that she was in the position to identify her handwriting and signatures as she had seen her signing and writing during the official course of duty. After going through MLC No. 5308 of the prosecutrix, she deposed that she was referred to S.R. Gynae for further examination and where she was examined by Gynecologist Dr. Laxmi and her observation is appearing on MLC Ex.PW2/A at pointX to X. The sealed exhibits as mentioned at point encircled 'Y' were handed over to the police.
6. PW4 ASI Mahavir Singh registered case FIR Ex.PW4/A on 15.03.2013 at 7.15 pm when WSI Anju Dahiya handed over tehrir to her.
PW10 Ld. MM Sh. Dheeraj Mor recorded statement Ex.PW9/F of the prosecutrix U/s 164 Cr.P.C. on 16.03.2013.
7. PW6 Ct. Sumit and PW16 HC Jai Kumar are witnesses to the arrest of both accused persons, their pointing out memos and medical examination.
They deposed that they alongwith SI Anju Dahiya reached to the house of one Sushil, husband of the prosecutrix, situated in Village Holambi Kalan on 16.03.2013. The prosecutrix and her mother Smt. Sona Devi led them to the house of accused Ashwani and State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 6 of 20 identified not only Ashwani but also second accused Sanjay who was also present there. Disclosure statement Ex.PW6/A of accused Sanjay was recorded and he was left in the custody of PW6 and accused Ashwani was left in the custody PW16. Sanjay pointed out the place of abduction and pointing out memo Ex.PW6/B was prepared. Both accused were got medically examined in M.V. Hospital. He deposed additionally that the duty officer had handed him over copy of FIR and original tehrir on 15.03.2013 which he delivered to the IO in M.V. Hospital.
PW16 HC Jai Kumar deposed that accused Ashwani made disclosure statement Ex.PW16/A and after arrest, he was medically examined in M.V. Hospital. After his examination, the doctor had handed over four sealed parcels with sample seal of the hospital which was taken into possession vide seizure memo Ex.PW16/B.
8. PW7 Dr. Amit Shokeen conducted potency test of both accused on 16.03.2013 and opined that there was nothing to suggest that they were not incapable of doing sexual intercourse. He deposed that exhibits of accused Ashwani were collected, sealed and handed over to the IO.
PW1 HC Ishwar Lal was working as MHC(M) on 15.03.2013 and 16.03.2013 when SI handed him over one and four sealed pullandas respectively for which he made entry nos. 1192 and 1198 Ex.PW1/A (colly.) in register no. 19. He deposed that two sealed pullandas alongwith two sample seals were handed over to Ct. Arvind State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 7 of 20 on 19.03.2013 who deposited the same in FSL, Rohini vide R.C. No. 99/21/13 Ex.PW1/B and after deposit, handed him over receipt Ex.PW1/C. PW8 Ct. Arvind Soni deposed that he collected exhibits alongwith FSL form, sample seal and forwarding letter from MHC(M) on 19.03.2013 vide R.C. No. 99/21/13. Some exhibits were deposited in FSL but some could not be deposited. He handed over the copy of R.C. alongwith acknowledgement receipt issued by FSL and the remaining exhibits to MHC(M).
PW11 Ms. Seema Nain, Sr. Scientific Officer (Biology) deposed that two sealed parcels sent by police to FSL, Rohini on 19.03.2013 were marked to her for examination. After analysis, she gave DNA report Ex.PW11/A on 28.11.2014.
9. PW17 SI Anju Dahiya is the IO and she deposed that the prosecutrix came to the PS on 15.03.2013 and she recorded her statement Ex.PW9/A, made endorsement Ex.PW17/A and got the case FIR registered. She and Ct. Sudesh took her and her mother to M.V. Hospital where she was medically examined and the doctor handed over her exhibits which she seized vide seizure memo Ex.PW5/A. Ct. Sumit came to the hospital and handed over original rukka and computerized copy of FIR to her. She next deposed that she alongwith W/Ct. Sudesh, prosecutrix and her mother went to the spot i.e. Main Road, Village Holambi Kalan and prepared rough site plan Ex.PW17/B at the instance of victim. She, Const. Jai and Const. Sumit went to the house of the State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 8 of 20 prosecutrix on 16.03.2013 and then went to the house of accused Ashwani with the victim and her mother from where accused Ashwani and Sanjay were arrested vide arrest memos Ex.PW9/B and Ex.PW9/C respectively and their personal search was conducted vide memos Ex.PW9/D and Ex.PW9/E respectively. She next deposed that both the accused showed police party the place of incident and hence, she prepared pointing out memos Ex.PW17/C and Ex.PW6/B respectively. Their disclosure statements Ex.PW16/A and Ex.PW6/A respectively were also recorded. Their medical examination was got conducted. Statement of the prosecutrix was got recorded U/s 164 Cr.P.C. Case property was deposited in FSL, Rohini on 19.03.2013. She filed chargesheet.
10. Under Section 313 Cr.P.C., accused Ashwani admitted that he was neighbour of the victim and that he had accompanied her to Abohar where they resided for about one month. They were apprehended there and brought to Delhi. He further admitted that he had established physical relations with the prosecutrix with her consent. Accused Sanjay took the defence of false implication being maternal uncle of accused Ashwani.
11. Both accused persons did not examine any witness in defence.
12. Ld. defence counsels argued that it has been alleged by the prosecutrix that Ashwani had an evil eye upon her and she had told her husband also about his intention and at one point of time, he had visited State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 9 of 20 the house of the accused in order to make him understand but he did not budge. He submitted that the accused and victim were residing in neighbourhood. They went missing in quick succession. Despite it, while lodging missing report, husband of the prosecutrix did not level any allegation against the accused. The reason was obvious that he was well aware that accused was entangled with the victim and both had eloped together.
Next submission is that the prosecutrix deposed that she was kept confined by the accused in a room in Abohar. The accused used to tie her hands and feet with a string and gagged her mouth whenever he used to go out of the room. She used to be sent to bathroom and toilet in that condition. Counsel argued that if the prosecutrix had been kept in that condition, she would have sustained injuries but she was neither examined in Abohar nor in Delhi when they reached here on 14.03.2013. It shows that she did not have any injury.
Next argument is that the house in which the accused and victim used to reside in Abohar, was owned by Radha/Radhika but her statement was not recorded by the police. No neighbour was examined. Rough site plan of the room was also not prepared.
Counsels next submitted that the accused alongwith prosecutrix was brought to Delhi by Delhi police but he was let off on 14.03.2013 and the sole reason was that the prosecutrix had made statement that she had eloped with him with her full consent and also State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 10 of 20 had physical intercourse with consent.
He next argued that that the bike on which the prosecutrix is said to have been abducted has not been recovered.
Counsels next argued that the prosecutrix was taken from Delhi to Abohar i.e. for a distance of about 400 km but she did not make any noise on the way and it shows that she was a consenting party.
Next argument is that it has been admitted by PW12 HC Dharambir that when he reached the room of the accused and victim in Abohar, he did not take into possession any of the article. Counsel submitted that all domestic articles were kept there and if the Head Constable had taken those articles into possession, it would have proved that the prosecutrix was residing there with full consent by running a house in proper order.
Next argument is that it has been admitted by the prosecutrix that her statement was recorded in PS Abohar, Punjab on 13.03.2013. Her statement was recorded by Delhi Police also on 14.03.2013 but both statements have been withheld because both were going against the prosecution.
Next argument is that it has been deposed by HC Dharambir that he had handed over CDRs of the mobile phones of the accused and victim to the IO who did not place them on record and the only reason is that those were going against the prosecution.
Counsels argued that as per HC Dharambir, accused and victim were apprehended from a room in Abohar but as per victim, her State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 11 of 20 mother and husband, they were apprehended on the road.
Last argument is that it has been deposed by HC Dharambir that they had gone to Abohar in a five seater vehicle and returned in the same vehicle. They submitted that they are unable to understand how 910 persons sat in that vehicle all the way from Abohar to Delhi.
13. On the other hand, Ld. additional PP replied that both accused had abducted the prosecutrix on 14.02.2013 at 5 am when she was going for open defecation. They kept a handkerchief on her face due to which she fainted and was made to sit on the middle seat of the bike and was taken to Abohar where she was kept confined for one month. She could not raise noise there because her hands and feet used to be tied and mouth used to be gagged.
14. By putting following suggestions, accused Ashwani has admitted that he had accompanied the victim from Delhi to Abohar on 14.02.2013, lived together for one month and were apprehended on 13.03.2013 and brought to Delhi.
Cross examination dated 13.01.2015 Q. I put it to you that on 14.02.2013 at about 5.00 a.m. in the morning you with your jewellery articles, clothes, identity proof i.e. Rashtriya Swasthya Bima Yojana had run away with accused Ashwani?
Ans. It is incorrect. Q. I put it to you that on 14.02.2013 in the morning when you
had run away with accused Ashwani, had gone by buses from Village Holambi to Railway Station Bahadurgarh, Haryana?
State Vs. Ashwani etc.
SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 12 of 20
Ans. It is incorrect.
Q. I put it to you that after reaching at Railway Station
Bahadurgarh, Haryana, you did not find any train to go to Bhatinda, Punjab, whereby you alongwith accused Ashwani by bus had gone to Railway Station Rohtak, Haryana?
Ans. It is incorrect. Q. I put it to you that at Railway Station Rohtak, Haryana, in
the day time on 14.02.2013, you and accused Ashwani bought two railway tickets for going to Sirsa and went to Sirsa?
Ans. It is incorrect. Q. I put it to you that after reaching at Sirsa, accused Ashwani
telephonically called one person by the name of Ram Sagar of Abhore, Bhatinda, Punjab and told him that he alongwith you after running (bhagkar) had come at Railway Station Sirsa, on which Ram Sagar told him (accused Ashwani) to come to his (Ram Sagar) house at Abhore, Bhatinda, Punjab?
Ans. It is incorrect. Q. I put it to you that at Railway Station Sirsa, you and
accused Ashwani bought railway ticket for Abhore, Bhatinda, Punjab and by train reached at Abhore, Bhatinda, Punjab in the evening of 14.02.2013?
Ans. It is incorrect.
Q. Do you know Neena, wife of Ram Sagar?
Ans. No.
State Vs. Ashwani etc.
SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 13 of 20
Q. I put it to you that you alongwith accused Ashwani had
stayed at the house of Neena and Ram Sagar at Abhore, Bhatinda, Punjab voluntarily from 14.02.2013 to 24.02.2013?
Ans. No. Q. I put it to you that from 14.02.2013 to 24.02.2013 while you
alongwith accused Ashwani were staying at the house of Neena and Ram Sagar, Abhore, Bhatinda, Punjab, accused Ashwani did not find any job (usko koi kaam nahi mila), on which you had advised accused Ashwani to go from here (yaha se chalo) to Hanumangarh, Rajasthan, as you as well as accused Ashwani were getting repeatedly (bar bar) calls from your respective family members and thereafter, you with accused Ashwani went to Hanumangarh, Rajasthan by bus?
Ans. It is incorrect.
Cross examination dated 17.08.2015 It is wrong to suggest that I had accompanied accused Ashwani firstly to Haryana, then to Punjab and then to Rajasthan and then again to Haryana and then again to Rajasthan and then from Rajasthan against to Punjab.
It is wrong to suggest that on 14.02.2013 in the morning at about 8.00 am I had firstly gone to Rohtak from Delhi accompanied with accused Ashwani.
It is wrong to suggest that after leaving Rohtak at about 9.00 or 9.30 am, I and accused Ashwani reached at Sirsa by Gorakhdam Express at about 11.30 am or that we had lunch in a hotel State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 14 of 20 situated at a distance of one kilometer from Sirsa Railway Station or that thereafter, we reached at about 4.00 or 4.30 pm at Bhatinda, Punjab, by catching the train at about 1.00 or 1.30 pm from Sirsa or that there were had a talk with Ram Sagar and then reached at about 7.30 pm at the house of Ram Sagar at Abhore Punjab by catching train at about 4.00 pm from Bhatinda or that we had stayed and had food for three days and three nights of 14/15/16.02.2013 at the house of Ram Sagar at Abhore, Punjab.
15. It has been deposed by the prosecutrix that the accused had an evil eye upon her and that is why he used to visit her house in the absence of her husband and used to ask her for strolling. She had told her husband about the misdeeds of the accused and that is why he visited his house once and to make him to understand but same was the rut.
When the accused went missing, his wife registered DD No. 10PP on 14.02.2013 in PP Metro Vihar saying that he had not returned home since 11.02.2013. When the prosecutrix went missing on 14.02.2013, her family members got registered DD No. 12PP in PP Metro Vihar on 14.02.2013. Addresses of the accused and victim mentioned in DDs show that both were neighbours. Husband of the prosecutrix was well aware that the accused had evil eye upon his wife. Both missing DDs were registered on the same day. So, it can be said that the husband of the victim was well aware that accused and victim had eloped together. Despite it, he did not get lodge abduction FIR State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 15 of 20 against accused and the reason may be that he was almost certain that if he lodged abduction FIR, his wife would not corroborate his version.
16. It has been deposed by the prosecutrix that the accused used to tie her hands and legs and gag her mouth with cloth whenever he would go out of the room. She used to be sent to bathroom and toilet in that condition. She used to be raped in that condition after beating her daily. Had she been treated in that manner, she would have definitely sustained several injuries and would have been immediately taken after apprehension by PW12 to a hospital in Abohar itself. But it has been admitted by PW12 that he did not get her medically examined in Abohar.
The prosecutrix deposed that her condition was not well and that is why, she did not make statement to the police on 14.03.2013. Had her situation not been upto the mark, she would have been medically examined on that day. But her medical examination was conducted next day. It shows that she did not have any injury and her condition was upto the mark when she reached Delhi on 14.03.2013.
It is also unbelievable that a person would be sent to bathroom and toilet with tied hands and legs by gagging mouth, because so many acts are to be done by the concerned person in bathroom and toilet with hands. So, her version that her hands and legs were tied by the accused, is unbelievable.
17. It was suggested to the prosecutrix that name of house owner in Abohar was Radha @ Radkhika. The police did not record State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 16 of 20 statement of the landlord or neighbour of the room from where the accused and prosecutrix were apprehended. They were the best persons to tell whether the victim was kept confined there or she was residing voluntarily. Site plan of that place has also not been prepared.
Accused and prosecutrix were brought to Delhi on 14.03.2013 and accused Ashwani was allowed to go home after binding him to appear whenever directed by the police. It suggests that till 14.03.2013, the prosecutrix was not uttering a single word against him. She was sent with her mother and only thereafter, she spoke volumes against the accused next day on 15.03.2013 and got lodged the FIR.
The bike used in the commission of the offence has not been recovered.
18. It is the version of the prosecutrix is that she was kept in a room in Abohar for one month. It cannot be believed that during whole month, she was not allowed to come out of the room. It has been admitted by PW12 that the room was in a residential area. But she did not raise alarm for 30 days. After abduction from Delhi, she was taken to Abohar which is about 400 kms away. Had she been taken there by two males on bike, the police would have definitely apprehended them on the way on the allegation of triple riding. She would have also raised noise on the way which she did not. Her version that when she regained consciousness she found herself in a room at Abohar, is quite unbelievable because it might have taken not less then 910 hours to reach Abohar from Delhi. In that time, intoxicant if any, would have State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 17 of 20 weakened in effect and she would have gained consciousness quite earlier.
PW12 HC Dharambir deposed that when he alongwith her husband and mother of the prosecutrix reached to the room of the accused, he found several articles lying there but he did not seize any of them or prepare their inventory. The reason is quite obvious because as if he had acted in that manner, the Court would have come to know about the articles lying there which might have included gas cylinder and other articles used for running household, seizure or inventory of articles would have proved that the accused and victim were residing there peacefully as a couple with consent of each other.
19. The prosecutrix deposed in cross examination dated 13.01.2015 that she, her mother and husband and accused were taken to PS Abohar on 13.03.2013. In cross examination dated 16.04.2015, she deposed that her statement was recorded in PS Abohar on 13.03.2013 at about 8 - 8.30 pm in the presence of her mother, husband and uncles and Delhi police officials. PW12 also admitted that after apprehension, accused and victim were taken to PS Abohar. But the statement of the prosecutrix recorded in PS Abohar, has not been placed on record. The prosecutrix admitted in cross examination dated 10.08.2015 that when she was brought to PS Shahbad Dairy from Abohar on 14.03.2013, her statement was recorded by the police. That statement has also not been placed on record. The only reason of not placing on record her statements may be that she was not supporting the prosecution case in State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 18 of 20 those statements. So, an adverse inference is drawn against the prosecution.
20. HC Dharambir deposed that the accused and victim were using mobile phones when they were apprehended. He further deposed that he had handed over call detail record of their phones to the IO. But the IO did not rely upon those CDRs. The reason may be that the CDRs might not be supporting the prosecution case. It might have been reflected by the CDRs that before eloping from Delhi on 14.02.2013, the accused and victim used to talk to each other for hours and that fact would have proved the prosecutrix as a consenting party.
21. As per victim's mother and husband, police had come to know of the presence of victim and accused in Abohar, Punjab and intimated them on 12.03.2013. They left for Abohar in the morning of 13.03.2013 and reached there in the evening. As per the deposition of victim, her mother and husband, the victim and accused were apprehended from a road when they were going to shift to some other place. But they have been contradicted hugely by PW12 HC Dharambir by deposing that first of all, they went to PS Abohar from where some police officials accompanied them to the house from where the prosecutrix was recovered. That house was about 3045 minutes away from PS. He further deposed in cross examination dated 12.11.2018 that they all went inside the house where the prosecutrix was kept. They talked to accused and victim for about 5 minutes and thereafter, brought both to PS Abohar. So, as per PW12, accused and victim were State Vs. Ashwani etc. SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 19 of 20 apprehended from a room. But as per victim, her mother and husband, they were apprehended on the road.
22. As per PW12, they went to Abohar and returned to Delhi in a five seater vehicle. He further deposed that a constable, driver, mother, husband and uncles of husband had accompanied him. While returning, accused and victim were also with them. In this manner, they came from Abohar to Delhi i.e. about 400 kms in a five seater vehicle. It is impossible for nine persons to travel 400 km in such a small vehicle.
23. In view of the above discussion, it is held that the prosecutrix was a consenting party and she had accompanied accused Ashwani voluntarily and had also established physical relations with her full consent.
24. Accordingly, both accused persons namely Ashwani and Sanjay are acquitted of the offences, they were charged with.
The personal and surety bonds of the accused are hereby cancelled. Sureties are hereby discharged. The endorsement made, if any, on any document of soundness of surety, be cancelled and the document(s) be returned to surety. File be consigned to record room.
Digitally signed by UMED UMED SINGH
SINGH GREWAL
Date: 2019.09.17
GREWAL 10:40:18 +0530
Announced in the open Court (Umed Singh Grewal)
On this 16th September 2019 ASJ: Special FTC (North)
Rohini Courts: Delhi
State Vs. Ashwani etc.
SC No. 57515/16; FIR No. 138/13, PS Shahbad Dairy, Page No. 20 of 20