Delhi High Court
State vs Sarvan @ Sanju on 22 September, 2015
Author: Sanjiv Khanna
$~03
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 547/2015
Date of decision: 22nd September, 2015
STATE ..... Petitioner
Through Ms. Aashaa Tiwari, APP with
Inspector Om Prakash Pawar, SHO, NDRS.
versus
SARVAN @ SANJU ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
SANJIV KHANNA (ORAL)
The impugned judgment dated 18th February, 2015, acquits
Sarvan @ Sanju from the charge that he along with his associates
Firoz and Dharmender (not arrested and proclaimed offenders) had
committed murder of Rakesh in the intervening night between 3 rd
and 4th May, 2013 at platform Nos.6 and 7 of New Delhi Railway
Station. It is alleged that deceased Rakesh has suffered homicidal
death as he was hit by a heavy stone and other objects and was made
to lie on the railway line as a result of which, he was run over by a
train.
2. The impugned judgment records and accepts that the deceased
Rakesh may have suffered homicidal death in view of the post
mortem of Rakesh marked Ex.PW4/A proved by Dr. S. Lal (PW4),
which records ante mortem injuries in the form of lacerated wounds
and bruises. Dr. S. Lal (PW4) has also affirmed crushed injury on
Crl.L.P 547/2015 Page 1 of 5
the left upper limb of the middle arm. The cause of death was shock
due to cranio-cerebral damage consequent upon blunt object injury
on the head, which was sufficient to cause death in ordinary course
of nature. This injury, PW4 opined, was ante-mortem in nature. The
other words, the crush injuries were post-mortem i.e. after Rakesh
had died.
3. On the question of involvement of the respondent, the
prosecution charge sheet relies and is predicted on the testimony of
one eye witness i.e. Deepak (PW18). The trial court in the impugned
judgment has elucidated and given several reasons as to why the said
witness is not trustworthy and should not be relied for convicting the
respondent. We have examined the said grounds and find that the
reasoning and findings recorded by the trial court do not require
interference. The elucidation by the trail court is meritorious and
credible.
4. As per the prosecution version, dead body of Rakesh was
recovered and came to the notice of the police after DD No.2A dated
4th May, 2013 was recorded at about 12.30 midnight. The DD entry
mentions that a dead body was lying between railway tracks going
from platform No.10, New Delhi Railway Station. Thereafter, ASI
Raghubir Singh (PW8) had visited the spot and had seen a dead body
of a male, whose right hand had been chopped. PW-8 filled up the
inquest form and deposited the dead body in Subzi Mandi mortuary.
PW8 had again visited the spot in question at about 6.40 A.M.
Crime Team was called and evidence and material at the site were
collected. It is apparent that ASI Raghubir Singh (PW8) did meet
Crl.L.P 547/2015 Page 2 of 5
and could not ascertain whether any eye witness had seen the
occurrence. No one came forward or had informed ASI Raghubir
Singh (PW8) or any other police officer that he or someone else had
seen the occurrence or elucidated and stated how the deceased had
died.
5. Deepak (PW18) accepts that he had visited and got himself
medically examined at the Lady Harding Medical College vide MLC
Ex.PW2/A at about 2.15 P.M. on 4th May, 2013 i.e. nearly 14 hours
after the dead body of Rakesh was noticed lying on the railway track.
He had abrasions over the right knee and left leg and swelling on the
right distal eye. There were also abrasions and swelling below the
left eye. The injuries, it was opined, were simple. The MLC marked
ExPW2/A was written and signed by Dr. Harvinder Dev (PW2). Dr.
Debashis (PW3) has deposed that as per the X-ray, no bone injury
was found. It is only after Deepak (PW18) had come to the hospital
and was examined, as per the police version that they came to know
about the involvement of the respondent. Sarvan @ Sanju and others.
Thus, Deepak (PW18), who claims himself to be an eye witness, did
not report about the occurrence to the police. Relevantly, Deepak
(PW18) avers that he was working in NDRS in the parcel
department. He was employed and earning.
6. Deepak (PW18), however, asserts that he had known the
deceased Rakesh for about 5-6 months prior to the date of incident.
Rakesh was a pick pocket and on the date of incident both of them
had consumed liquor in the evening. He claims that deceased
Rakesh used to keep a knife and some wooden sticks, which had
Crl.L.P 547/2015 Page 3 of 5
been stolen by the respondent and his friends. Thereupon, deceased
had threatened the perpetrators that if the articles were not returned,
he would kill the respondent and his associates. This was the motive
and reason why Sarvan @ Sanju and his associates had attacked and
killed Rakesh at midnight intervening between 3rd and 4th May, 2013.
7. Deepak (PW18) has stated that after seeing the occurrence, he
ran away from the spot and had gone to bridge No.16 and had slept
there. Next day, he went to the hospital where police met him and
he had disclosed and narrated the facts. It is interesting to note that
respondent Sarvan @ Sanju was arrested on 1st July, 2013, again at
the instance of Deepak (PW18), who had signed the arrest memo
(Ex.PW18/A). In his cross-examination, PW18 claimed that that in
the morning, he came to know that Rakesh had expired, yet he did
not make any complaint. He claimed that he had also sustained
injuries because of the attack by Sarvan @ Sanju and his associates.
In his cross-examination, Deepak (PW18) had asserted that he had
gone to the hospital at about 9.00 A.M. or 10.00 A.M., which
obviously, is an incorrect statement as the MLC (Ex.PW2/A) records
his presence at the hospital at 2 P.M. on 4th May, 2013. One of the
suggestions given to Deepak (PW18) was that he had killed deceased
Rakesh and had falsely implicated the respondent and others.
8. On going through the testimony of Deepak (PW18), we notice
gaps and flaws. There was considerable delay in Deepak (PW18)
coming forward and informing the police. Injuries suffered by
Deepak (PW18) were simple in nature. We have noticed the
suggestion given to Deepak (PW18) in his cross-examination.
Crl.L.P 547/2015 Page 4 of 5
Motive as alleged is vague and weak. The trial court has rightly not
relied upon the said witness as the sole and exclusive reliable version
and ground to convict the respondent. PW18's testimony was not
entirely credible and trustworthy and required corroboration and
support from other circumstance and material, but this is completely
absent and lacking in the present case. Apart from the testimony of
Deepak (PW18), there is no other convincing incriminating fact,
which would show or signify involvement of Sarvan @ Sanju.
Alleged recoveries are a suspect and again doubtful. We do not think
that we can solely and only on the basis of the testimony of Deepak
(PW18) safely opine and hold that Sarvan @ Sanju was one of the
perpetrators and participant in the attack, which had led to the death
of Rakesh. Leave to appeal, therefore, should be dismissed.
9. There is delay of 67 days in filing of the leave to appeal and an
application for condonation of delay has been filed. As we find that
the leave to appeal lacks merit, we are not inclined to issue notice on
the application. Consequently and as a sequitur, the application for
condonation of delay will be treated as dismissed.
SANJIV KHANNA, J.
R.K.GAUBA, J.
SEPTEMBER 22, 2015 NA
