Delhi District CourtState vs . 1. Peri Swami on 27 November, 2010IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
    JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI

Sessions Case No. 1178/2009
Unique Case ID: 02404R0311412009

State                       Vs.      1.    Peri Swami
                                           S/o Kanda Swami,
                                           R/o L-199, JJ Colony
                                           Shakurpur, Delhi.

                                    2.     M. Narsimman
                                           S/o M Maniyan
                                           R/o L-191, JJ Colony,
                                           Shakurpur, Delhi.

FIR No.                     :              467/2009
Under Section               :              392/397/34 Indian penal Code.
                                           & 25/54/59Arms Act.
Police Station              :              Saraswati Vihar

Date of committal to sessions court :                      17.12.2009
Judgment reserved on :                                     2.11.2010
Date of Sentence :                                         22.11.2010

JUDGMENTBrief Facts:That on 31.8.2009 at about 3:40 PM at Inner Ring Road
near F Block Bus Stand, Shakur Pur, Delhi, the accused persons
before this court namely Peri Swami and Narasimman had robbed the
complainant Ramu Gupta of his purse containing Rs.4,500/- and of
another Rs.200-300/- and while doing so the accused Peri Swami
also pointed the knife upon he complainant.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar                Page 1 of 22Case of prosecution in brief:The case of prosecution in brief is that on 31.08.2009 on
the receipt of DD No. 31A regarding snatching of money by two-
three boys at F Block Bus Stand, Shakur Pur, SI Sanjay Kumar
alongwith Ct. Lokesh went at the spot and found that the accused
Peri Swami who was having a knife in his hand, had been caught by
public persons.          SI Sanjay Kumar recorded the statement of
complainant Ramu Gupta and the complainant told to the police that
on 31.08.2009, he was working in Kings Tool Corporation, GT Road,
Opposite Sanmati Rice Mill, Gannaur, Distt. Sonepat, Haryana and
used to supply the goods. He further stated to the police that on the
day of the incident he had come to Nai Sarak, Chawri Bazar for
supplying the goods and he had come to the residence of his mama at
A-31, Shakur Pur, Delhi and after meeting his Mama while he was
going towards the Bus stand Ring Road for taking a bus to Gannaur
and reached near F Block, two boys came from behind and one of
them put a knife on his neck and other boy took his purse from the
backside pocket of his pant containing Rs.9,500/- and also took about
Rs. 200-300 from his upper pocket and thereafter the public persons
gathered at the spot and caught hold of the accused Peri Swami while
the co-accused M. Narsimhan who took out the aforesaid articles/
money ran away from the spot. On the basis of the statement made
by the complainant, FIR was got registered and accused persons were
arrested and after completing the necessary investigation, the charge
sheet was filed before the court.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar    Page 2 of 22CHARGE:On the basis of the allegations made in the charge sheet,
charge under Section 392 read withSection 397IPC and charge
underSection 25/54/59of Arms Act, were settled against the accused
Peri Swami. Charge underSection 392/34IPC was settled against
the accused M. Narasimman. Both the accused have pleaded not
guilty and claimed trial.EVIDENCE:Complainant / public witnesses:PW3 Ramu Gupta, has deposed that on 31.8.09 he was
employed in the Kings Tool Corporation, GT Road Opposite Sanmati
Rice Mill, Gannaur, Distt. Sonipat, Haryana, where he was working
as Foreman and used to supply the goods. According to the
complainant on 31.8.09 he had come to Nai Sarak, Chawri Bazar,
Delhi, for making the supply of the goods and thereafter he came to
the residence of his Mama who is R/o A-31, Shakurpur and after
meeting his Mama when he was going back to bus stand Ring Road
for taking a bus to Gannuar and he reached near F Block before the
Red Light, two boys came from behind one of whom kept a knife on
his neck. According to the witness, the other boy took the purse from
the back side pocket of his pant containing Rs.9,500/- and also took
about Rs.200-300/- from the pocket of his shirt. The witness has
further deposed that he raised an alarm on which the public persons
who were coming and going caught hold of the boy who had caught
him from the back and put the knife on his neck while the other boyState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar    Page 3 of 22ran away. According to the witness some body from the public called
at 100 number and the PCR officials came to the spot. According to
the witness the boy who had been apprehended by the public persons
at the spot was identified as the accused Perry Swami and he was
handed over to the PCR persons by the public and one knife was
recovered from him which knife he put on his neck. The witness has
further deposed that the police also interrogated him on which he
disclosed that the other boy had taken away the money. His statement
Ex.PW3/A was recorded by the police at the spot. He also informed
the police the details of the spot where the incident took place and
site plan Ex.PW3/B was prepared in his presence bearing his
signatures at point A. The Khaka of the knife recovered from the
accused Peri Swami was also prepared in his presence which is
Ex.PW3/C bearing his signatures at point A, and the knife was
seized vide memo Ex.PW3/D and after sealing the same in a white
cloth pulanda and a seal of SD was put on. According to the witness
the disclosure statement of the accused Peri Swami was also recorded
in his presence vide Ex.PW3/E; and he was arrested vide memo
Ex.PW3/F and his personal search was conducted vide memo
Ex.PW3/G.
              The witness Ramu Gupta has further deposed that, on
1.9.2009, he had gone to the police station to take the copy of FIR
when he found another boy sitting at police station. He immediately
informed the police that this was the boy who had removed his purse.The witness has pointed towards the accused Narsimhan as the boy
who had removed the purse from his pocket. According to theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 4 of 22witness they were not in their normal state and appeared to be in the
state of intoxication either by the alcohol or drug.Addl. PP for the State with the permission of the court
also put leading questions to the witness as he was not giving the
complete facts, in which the witness has testified that he had told the
investigating officer that on 1.9.09 when he went to the police station
he did not find the investigating officer and he therefore, came out
and stood outside the police station, when he saw the investigating
officer alongwith two policemen were coming inside the Police
Station with one boy whom they had apprehended which boy he
identified as the person who had stolen his purse and money. The
investigating officer informed him that the name of said boy was
Narshimhan. The witness has correctly identified the knife recovered
from the accused Peri Swami which is Ex.P-1.In his cross examination by the Ld. defence counsel, the
witness has testified that there were not many persons on the road at
the time of incident as it was very hot in the afternoon between 3-4
PM and a large number of vehicles were coming and going on the
road. The Ld. defence counsel has tried to shake the credibility of
this witness on the aspect of the incident and snatching of cash. The
witness has testified that when he supplies the goods in the market,
he only collects cash payment but does not do any writing work and
it is for this reason that he did not hand over any receipt to
investigating officer to show that he had come to Delhi to make
delivery of the articles. According to the witness there was no mark
of knife on his neck since the moment the accused Peri Swami putState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 5 of 22the knife on his neck he put his head down in order to save himself
and immediately some boys who were playing cricket in the park
also came out and apprehended the accused alongwith public
persons. According to the witness had the public not come and
apprehended the accused much more could have happened. He has
deposed that it is somebody from the public who had called the PCR
who reached at the spot within 5-7 minutes of the incident.
According to him several policemen including the investigating
officer had come to the spot and conducted the entire documentations
there. The witness has deposed that he remained at the spot through
out the day and left the place after 7-7:30 p.m when police told him
to leave. The witness has further deposed that on the next day i.e.
1.9.09 he had gone to the police station and seen the accused
Narshimha sitting inside the police station. According to him he had
stated in his statement to the investigating officer that he was
standing outside the police station. He has voluntarily stated that
when he came out of the police station there was a Chabutra on one
side on which he waited and when he saw the investigating officer
entering the police station alongwith the accused he went inside the
Police Station and pointed out the accused Narshimhan to the police
officers as the boy who had taken his money and purse. The witness
has been confronted with his statement Ex.PW3/DX1 wherein this
aspect is not so recorded in this manner.Police / official witnesses:PW1 HC Rajpal Hooda, was posted as duty officer on
31.8.2009 in police station Saraswati Vihar from 9 AM to 5 PM andState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 6 of 22at about 4:10 PM he recorded DD No.31A Ex.PW1/A and thereafter,
the same was sent to SI Sanjay through Ct. Surender. The witness
has not been cross examined by the accused.PW2 SI Sukhbir Singh, has deposed that on 31.8.2009
he was posted as Duty Officer in PS Saraswati Vihar and was on duty
from 5 pm to 1:00 am and on that day at about 5:50 pm he received a
rukka through Ct. Lokesh which was sent by SI Sanjay Kumar on the
basis of which he recorded the present FIR No. 467/09 underSection
392/397/34IPC and 25/27Arms Act, and after registration of the
FIR handed over the original rukka and copy of the FIR to Ct.Lokesh
for handing over to SI Sanjay for further investigations. Copy of the
computer generated FIR is Ex.PW2/A and the endorsement made by
him on the rukka is Ex.PW2/B. In his cross examination by the Ld.
defence counsel the witness has testified that Ct. Lokesh remained in
PS for about 25 minutes.PW4 Ct. Sumit Kumar, has deposed that on 01.09.2009
he was posted as constable at police station Saraswati Vihar and was
on duty from 5.00 PM to 1.00 AM (Midnight) and at about 10.10 PM
he received a telephonic information from Ct. Om Prakash that one
boy namely Narsimha who was wanted in the present FIR was sitting
at Ambedkar Park, Shakur Pur and consuming smack and he also
requested that some police officer be sent from the police station.
He, on receipt of this information, entered the same in the
Rozanamacha vide DD No. 64B copy of which is Ex.PW4/A, and
thereafter handed over the same to Ct. Vijay which he took to SI
Sanjay Dahiya. In his cross examination by Ld. counsel for theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 7 of 22accused, the witness has admitted that Shakur Pur was not mentioned
in the DD No. 64B.PW5 SI Sanjay Kumar, has deposed that on 31.08.2009
he was posted as Sub Inspector at police station Saraswati Vihar and
on that day he received an information from the PCR vide DD
No.31A Ex.PW1/A regarding snatching of money by 2-3 boys at F
Block Bus stand, Shakurpur and on receipt of this information he
alongwith Ct.Lokesh went to the spot i.e. F block bus stand and saw
that a large crowd had gathered. According to the witness one person
from the public had caught hold of a boy who was having a knife in
his hand which boy was handed over to him and he took the knife
from the hand of the boy and handed over the boy to Ct. Lokesh. The
said boy who had caught the boy disclosed his name as Ramu Gupta
and told him that this boy had put the knife on his neck alongwith
one other associate and had removed a purse from the pocket of his
pant containing Rs. 9,500/- and also a cash of Rs.200-300 from the
pocket of his shirt. He thereafter recorded the statement of Ramu
Gupta vide Ex. PW3/A and prepared the khaka of the knife vide Ex.
PW3/C and measured the same and found the total length of the
knife as 24 Cms., the blade of the knife as 11 Cms., its handle as 13
Cms. and the maximum width of the blade was 2.5Cms and the blade
was of steel and the handle was of aluminium. According to the
witness he converted the knife into a pulanda and sealed the same
with the seal of SD and also prepared the seizure memo of the knife
vide Ex.PW3/D. He prepared the Tehrir on the basis of statement of
Ramu Gupta and handed over the same to Ct.Lokesh for taking theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 8 of 22same to the police station for registration of the case. Ct. Lokesh
took the tehrir to the police station and came back to the spot after
getting the case registered alongwith the copy of FIR which is
Ex.PW2/A and original tehrir which is already Ex.PW3/A.
According to the investigating officer, he thereafter prepared the site
plan at the instance of the complainant Ramu Gupta vide Ex.PW3/B.
During the interrogation he came to know the name of the accused as
Peri Swami and the accused was arrested vide memo Ex.PW3/F.
They were personally searched vide memo Ex.PW3/G and thereafter
the accused made a disclosure vide Ex.PW3/E wherein he disclosed
that he had put the knife on the neck of the complainant and his
associate Narsimha had snatched the money from the complainant.
According to the witness, he also recorded the supplementary
statement of the complainant and relieved him. Accused Peri Swami
was taken to Shakurpur where he took us to the house of his associate
Narsimha at L-191, Shakurpur but they could not find Narsimha
there so he returned to the police station and the accused was put in
the lock up. According to the witness, on 01.09.09 the accused Peri
Swami was produced before the Ld. MM after which he was sent to
JC and on the same day in the evening he was present in the police
station when Ct. Vijay (Home Guard) handed over the DD No. 64B
to him where Ct. Om Prakash had given the information that the
other accused wanted in the present FIR was present at Ambedkar
Park, Shakurpur. The information was recorded vide DD vide
Ex.PW4/A. On receipt of this information he went to Ambedkar Park
where he met Ct. Om Prakash and Ct. Randeep on the gate and theyState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 9 of 22pointed out that one boy who was wanted in the present case was
sitting near the wall of the park in a corner and consuming smack.
On this he went at the spot and one boy was apprehended by Ct. Om
Prakash who disclosed his name as Narsimha. According to the
witness, the accused Narsimman admitted his involvement in the
present case and also disclosed that after the snatching incident, he
went to Sadar Railway Station where he lost Rs.8000/- in gambling
and with the remaining amount of Rs.1,500/- he had purchased the
smack. The witness has proved the arrest of accused Narsimha vide
memo Ex.PW5/A and thereafter conducted his personal search vide
memo Ex.PW5/B and recorded his disclosure vide Ex.PW5/C. The
accused Narsimha also took them to the place of incident and pointed
out the place from where he had snatched the money from Ramu
Gupta on which the pointing out memo Ex.PW5/D was prepared.
The witness has further deposed that the accused Narsimmann was
taken to the police station where the complainant Ramu Gupta was
already present as he had come to take the copy of his FIR and he
immediately identified Narsimha as the other boy who had removed
the money from his pocket and run away. According to the witness,
he recorded the statement of both Constable Om Prakash and Ct.
Randeep and the supplementary statement of complainant Ramu
Gupta. Thereafter, on 02.09.2009 the accused was taken to Sadar
bazar area where the accused Narsimha pointed out the place where
he had gambled and lost Rs. 8,000/- out of the amount snatched from
the complainant Ramu Gupta. The accused was thereafter produced
before the Ld. MM and was remanded to Judicial Custody. TheState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 10 of 22witness has pointed out that after completion of the investigation he
prepared the charge sheet and filed the same in the court.                The
witness has also correctly identified the accused persons in the court
and also the case property i.e. one button dar knife as that recovered
from the possession of accused Peri Swami and which is Ex. P1.In his cross examination by the Ld. defence counsel, the
witness has testified that he left the police station at about 4:15pm on
motorcycle owned by Ct. Lokesh and Ct. Lokesh was driving the said
motorcycle and reached the spot at 4:20pm where there were many
public persons present on the spot. According to the witness, accused
Peri Swami was handed over to him by complainant Ramu Gupta
alongwith the knife and not by the PCR. According to the witness,
the fact regarding the PCR was not mentioned by him in the police
report nor any statement of any police witness. He has further
deposed that the complainant did not mention the denomination of
currency notes robbed. Complainant Ramu Gupta told him that some
public person had called on the 100 number. According to the
witness he tried to join public persons during preparation of the
documents at the spot but none agreed and left the spot without
disclosing their names and addresses and he did not give any notice
to anybody for not joining the investigations.             According to the
witness Ct. Lokesh went to the PS with the tehrir at about 5.40pm on
his motorcycle and came back at the spot alognwith the rukka and
copy of FIR at about 6.20/6.25 pm and after the arrival of Ct. Lokesh
at the spot, the site plan, arrest memo, personal search memo,
disclosure statement of accused Peri Swami and supplementaryState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar        Page 11 of 22statement of complainant Ramu Gupta were prepared. The witness
has further deposed that thereafter they had gone to the house of
Narsimman from the spot and reached there at about 7.45pm and
thereafter they went to the one Park at G-Block the accused was not
found. Thereafter, on 1.9.2009 at about 10.15pm he received
information regarding accused Narsimman on which he went there
and accused Narismman was arrested and was brought to the PS on
foot.Statement of accused and defence evidence:-After completing the evidence of prosecution, statement
of accused persons was recorded underSection 313Cr.PC in which
all the incriminating evidence and material was put to them which
they have denied and have submitted that they have been falsely
implicated in this case. The accused persons have not examined any
witness in defence.FINDINGS:I have gone through the evidence on record, the written
synopsis of arguments filed on behalf of the accused persons and
other material placed on record.The prosecution in order to prove its case has examined as
many as five witnesses. The most material witness of the prosecution
Ramu Gupta PW3 has supported the case of the prosecution though
the Ld. counsel for the accused has pointed out various contradictions
in his testimony, which are as under:State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar    Page 12 of 221.    That the complainant (PW3) has deposed before the court that
      some boys who were playing cricket in the part came out and
      apprehended the accused along with public persons, which fact
      does not find mention in his earlier statement.2.    That PW3 admits that the accused persons did not beat him
      where the DD No. 31A find mention that "2-3 ladko ne mar-
      peet karke ek ladke ke paise chin liye".3.    That the complainant PW3 has admitted that he told the
      investigating officer that one boy had apprehended the accused
      when he made hue and cry, which fact is not mentioned in his
      earlier statement and is an improvement.4.    It is further pointed out by Ld. defence counsel that as per the
      tehrir, PW3 Ramu Gupta himself called at 100 number, whereas
      PW3 has deposed in the court that he did not mention to the IO
      that he had called at 100 number and somebody else had called
      at 100 number.5.    That PW3 stated that PCR came to the spot within 5-7 minutes
      of the incident whereas the IO PW5 states that when he reached
      the spot the PCR was already present there and that both PW3
      and PW5 cannot tell about the number of PCR officials and that
      none of the PCR officials have been cited as the witness.Ld. counsel for the accused persons has further argued
that no public witness was joined at the time of preparation of the
various documents though presence of large number of public
persons is admitted. It is also argued that no handing over memo was
prepared. It is also pointed out that the investigating officer shouldState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 13 of 22not have handed over the seal to the complainant as the complainant
is an interest witness. Ld. counsel also pointed out that the various
DD entires regarding departure and arrival have not been placed on
record. It is also argued that the complainant has failed to prove that
he at the time of incident was in possession of Rs.9,500/- and
therefore under these circumstances his testimony cannot be
believed. Ld. counsel for the accused has also pointed out towards
the various contradictions in the testimonies of various witnesses qua
the accused Narsimman. According to him none of the constables i.e.
Ct. Om Prakash and Ct. Randeep have been examined. It is further
submitted that according to the complainant, on 1.9.2009 he had gone
to police station to take the copy of FIR and he found the accused
Narsimman sitting their and identified him as the boy who had
removed his purse whereas in the leading question put to him, he told
that on 1.9.2009 when he went to the police station he did not find
the investigating officer so he came outside the police station where
he saw that IO alongwith two constables had brought accused
Narsimman on which he identified the accused. It is submitted that
the accused Narsimman was identified by the complainant outside
the police station and therefore his arrest and identity is not proved
beyond reasonable doubt. Ld counsel for the accused has also pointed
out that despite the fact that accused Narsimman had taken the
investigating officer to Sadar Bazar where he lost Rs.8000/- in
gambling, this aspect is found missing from the investigation and
also no pointing out memo has been prepared by the investigating
officer in this regard.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 14 of 22Addl. PP on the other hand has vehemently argued that
there is no reason to discard the testimony of eye witness PW3 who
has categorically identified both the accused in the court. Addl. PP
also pointed out that the accused Peri Swami was arrested in the
presence of public persons and knife was recovered from him
whereas the other accused was apprehended later, though no recovery
was effected.I have considered the rival contentions. In so far as the
aspect of contradictions is concerned, the Hon'ble Supreme Court had
an opportunity to discuss as to why discrepancies arise in the
statements of witnesses.In the judgment ofBharwada Boginbhai
Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252
SC, the Supreme Court pointed out the following reasons as to why
the discrepancies, contradictions and improvements occur in the
testimonies of the witnesses.(a)           By and large a witness cannot be
             expected to possess a photographic memory and to
             recall the details of an incident. It is not as if a
             video tape is replayed on the mental screen.(b)           Ordinarily it so happens that a witness
             is overtaken by events. The witness could not have
             anticipated the occurrence which so often has an
             element of surprise. The mental faculties therefore
             cannot be expected to be attuned to absorb the
             details.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar     Page 15 of 22(c)           The powers of observation differ from
             person to person. What one may notice, another
             may not. An object or movement might emboss its
             image on one person's mind, whereas it might go
             unnoticed on the part of another.(d)           By and large people cannot accurately
             recall a conversation and reproduce the very words
             used by them or heard by them. They can only
             recall the main purport of the conversation. It is
             unrealistic to expect a witness to be a human tape
             recorder.(e)           In regard to exact time of an incident, or
             the time duration of an occurrence, usually people
             make their estimates by guess work on the spur of
             the moment at the time of interrogation. And one
             cannot expect people to make very precise or
             reliable estimates in such matters. Again, it
             depends on the time sense of individuals which
             varies from person to person.(f)           Ordinarily a witness cannot be expected
             to recall accurately the sequence of events which
             take place in rapid succession or in a short time
             span. A witness is liable to get confused, or mixed
             up when interrogated lateron.(g)           A witness, though wholly truthful, is
             liable to be overawed by the court atmosphere andState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar        Page 16 of 22the piercing cross-examination made by counsel
             and out of nervousness mix up facts, get confused
             regarding sequence of events, of fill up details from
             imagination on the spur of the moment. The
             subconscious mind of the witness sometimes so
             operates on account of the fear of looking foolish or
             being disbelieved though the witness is giving a
             truthful and honest account of the occurrence
             witnessed by him perhaps it is a sort of
             psychological defence mechanism activated on the
             moment.Further, as regards the contradictions in the timings,
presence of a particular police official at a particular time etc. I am of
the considered view that the same are too immaterial and irrelevant
as it is the evidence of the victim regarding the commission of the
offence by the accused which is more important than the
investigation conducted in the present case. Even otherwise, the
alleged contradictions are not fatal to the prosecution case in any
manner as the same relate to the investigation. Merely due to the
contradictions in the evidence regarding investigation or even if there
is faulty investigation, the same do not absolve the accused of their
liabilities as it is the evidence of the material and star witnesses
which is more important than the evidence of the witnesses of the
investigation.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar     Page 17 of 22Even otherwise the discrepancies as pointed out by the
Ld. Counsel for the accused can be ignored since the witness, though
truthful can be overawed by the court atmosphere and the piercing
cross-examination made by the counsel and sometimes get confused
regarding the sequence of events and to fill up the details of
imagination at the spur of the moment. These discrepancies can be
ignored once the witness gives the truthful and honest account of the
occurrence. It is evident from the record that the accused Peri Swami
was apprehended at the spot itself within a matter of minutes and it
has been proved by the complainant that the police officer had come
to the spot and it is immaterial as to who called the PCR since it is
the complainant or some other public person who would have called
the PCR.       Though admittedly no PCR officer has been cited as
witness but it does not affect the investigations conducted in the
present case in any manner.Further, it is evident from the testimony of the
complainant that both the accused at the time of the incident
appeared to be in a state of intoxication. This court may observe that
even during the course of trail the conduct of the accused persons
appear to be the same. It has been revealed that they are addicted to
drugs and the crime committed by them is connected with their
addiction. In fact on one occasion the accused M. Narishaman had
applied for bail on the ground that his father had expired and he
wanted to attend to his last rites and also to console his mother.
However, when the report was sought it was revealed that his father
is hale and hearty and in fact the parents of the accused M.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 18 of 22Narishaman were themselves fed up to him on account of his
addiction to drugs and they also made a request that he should not be
released least he may go back to his addiction.It has also been argued that despite there being
availability of public witnesses no public witness was joined by the
investigating officer due to which the investigations conducted at the
spot are liable to be rejected. I have considered the submissions
made. I am oblivious of the fact that non joining of public witnesses
is a serious investigation lapse and can be fatal to the case of the
prosecution but in the present case it is evident from the record that
an attempt had been made by the investigating officer to join the
public witnesses as deposited by him orally and normally under the
given circumstances, public persons do not wish to get themselves
embroiled in the affairs of the court and refuse which is only natural
as happened in the present case. However, since the complainant/
victim was present and joined throughout the investigations, non
joining of other public witnesses will not be fatal to the case of the
prosecution.Now coming to the merits of the case. Firstly, as far as
the identity of the accused Peri Swami is concerned, there is no
dispute. He was apprehended at the spot by the public persons and
the complainant Ramu Gupta has proved this aspect and also
identified him as the boy who had put the knife upon him while the
other co-accused Narsimman removed his cash.Secondly, in so far as the accused Narsimman is
concerned, he has also been identified in the court by theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 19 of 22complainant Ramu Gupta as the boy who had removed his cash
amount of Rs.9,500/-.Thirdly, the complainant Ramu Gupta has identified the
accused Narsimman at the police station while he had gone to the
police station on 1.9.2009 to collect the copy of the FIR. The short
dispute before this court is whether the complainant had identified
the accused Narsimman inside the police station or outside, as
claimed by him. I find no merit in the arguments of Ld. counsel for
the accused that there are material contradictions in the testimony of
the complainant PW3 on this aspect, since it is evident from the
statement of PW3 that he has specifically explained that there is a
place outside the police station to sit and when he had gone to the
police station on 1.9.2009, he did not met investigating officer and
set outside. After some time when he was about to leave he found
the investigating officer coming to the police station alongwith the
accused Narsimman whom he identified the other boy who had
removed his cash amount from his pocket, on which he went inside
the police station alongwith the investigating officer and informed
the investigating officer of the same. Though, earlier statement made
to the investigating officer, the complainant Ramu Gupta has not
specified this aspect in such a manner, yet it is evident that he has
explained the details in his testimony before the court when
confronted by the Ld. defence counsel in this regard and I therefore
find no reason to disbelieve him.Fourthly, the recovery of the knife from the accused Peri
Swami has been proved by the prosecution witnesses. TheState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 20 of 22complainant Ramu Gupta has identified the accused Peri Swami as
the boy who put the knife upon him which aspect has been proved by
the other witnesses also. The accused Peri Swami was apprehended
by the public persons at the spot and was the knife was recovered
from his possession which he shown to the complainant, an aspect
which has been duly proved by the prosecution witnesses.Fifthly the knife recovered from the possession of the
accused Peri Swami at the spot itself has been duly identified by the
complainant as Ex.P-1. The khaka of the knife, measurement taken
by the investigating officer, pullanda prepared by him and its sealing,
has been duly proved. A judicial notice is taken of the Gazette
Notification dated 17.2.1979 bearing No.F.13/203/78-Home (C)
providing that any any person found in possession of a knife open or
close with any of the mechanical device with a blade of 7.62 or more
in length and 1.72 cms or more in breadth, in public places should be
regulated. The knife so recovered from the accused Peri Swamy is
clearly beyond the prescribed notified limits. The prosecution has
duly proved that the possession of the knife Ex.P-1 with the accused
Peri Swamy is in violation of the aforesaid notification.Lastly, in so far as the accused Narsimman is concerned,
the investigating officer has submitted that the accused Narsimman
had taken him to Sadar Bazar where he had stated that he had
gambled away Rs.8000/-, which aspect does not find any mention in
the investigation and is an improvement by the the investigating
officer. No doubt the accused Narsimman has been identified by the
complainant as the boy who had snatched the amount, yet theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar    Page 21 of 22explanation forthcoming regarding the same the sum of Rs.8000/-
having been gambled out of the said amount, cannot be believed and
is required to be discarded.In view of my aforesaid discussions, I hereby hold the
accused Peri Swami guilty for the offence underSection 397Indian Penal Code read withSection 25/54/59Arms Act, and the
accused Narsimman is held guilty underSection 392Indian Penal
Code. Both the accused are accordingly convicted.Be listed for arguments on the point of sentence on
26.11.2010.Announced in the open court                                 (Dr. KAMINI LAU)
Dated: 22.11.2010                                          ASJ (NW)-II: ROHINIState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar             Page 22 of 22State Vs. Peri Swami
PS Saraswati ViharFIR 467/200922.11.2010
Present:      Addl. PP for the State.Both accused in JC with Sh. Rajneesh Antil Amicus
              Curiae.Vide separate detailed judgment dictated and announced
in the open court, the accused Peri Swami has been held guilty of the
offence underSection 397Indian Penal Code read withSection
25/54/59Arms Act and the accused M. Narsimman has been held
guilty of the offence underSection 392Indian Penal Code and both
the accused are convicted accordingly.Be listed for arguments on the point of sentence on
26.11.2010.(Dr. Kamini Lau)
                                                    ASJ/NW-II, Rohini/22.11.10
26.11.2010
Present:      Addl. PP for the State.Both the convicts in JC with Sh. Rajneesh Antil
              Amicus Curiae.Heard arguments on the point of sentence. Be listed for
order on sentence on 27.11.2010.(Dr. Kamini Lau)
                                                    ASJ/NW-II, Rohini/26.11.10State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar           Page 23 of 22IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
        JUDGE-II (NW): ROHINI COURTS: DELHISession Case No. 1178/09State                       Vs.            Peri Swami @ Perry Swami
                                           S/o Kanda Swami
                                           R/o House No. L-199,
                                           JJ Colony, Shakurpur,
                                           Delhi

                                           M. Narishaman
                                           S/o M. Maniyam
                                           R/o L-191, JJ Colony,
                                           Shakurpur, DelhiFIR No.                                    467/09Police Station:                            Saraswati Vihar
Under Section:                             392/397/34Indian Penal Code25/54/59 ofArms ActDate of Conviction:                        22.11.2010
Arguments heard on:                        26.11.2010
Date of Sentence:                          27.11.2010


APPEARANCE:Present:      Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.Both the convicts in judicial custody with Amicus Curiae
              Sh. Rajneesh Antil, Advocate.ORDER ON SENTENCE:Vide my detailed judgment dated 22.11.2010 the accused
Peri Swami @ Perry Swami has been held guilty of the offence underState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar           Page 24 of 22Section 397Indian Penal Code read withSection 25/54/59Arms
Act and the accused M. Narishaman has been held guilty of the
offence underSection 392Indian Penal Code.As per the allegations, on 31.8.2009 both the accused
robbed one Ramu Gupta of his purse containing Rs.9,500/- and
Rs.200-300/-, on the point of a knife. The accused Peri Swami @
Perry Swami was apprehended at the spot by the public persons and
handed over to the police whereas the accused M. Narishaman ran
away who was arrested later. The complainant/ victim Ramu Gupta
has been examined as PW3, has correctly identified the accused
Perry Swami @ Peri Swami in the court, as the boy who had put the
knife on his neck and was apprehended with the help of public
persons and from whose possession the knife was recovered at the
spot itself. He has also identified the accused M. Narishaman as the
boy who had removed the purse from his pocket containing
Rs.9,500/- and had run away from the spot. On the basis of the
testimonies of the various witnesses examined by the prosecution,
this court has held the accused Perry Swami @ Peri Swami guilty of
the offence underSection 397Indian Penal Code read withSection
25/54/59Arms Act and the accused M. Narishaman guilty of the
offence underSection 392Indian Penal Code and convicted them
accordingly.I have heard the arguments on the point of Sentence. Ld.
Amicus Curiae appearing on behalf of the convicts has vehemently
argued that both the convicts are young boys and belong to very poor
families.     It is also argued that both the convicts have alreadyState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 25 of 22remained in judicial custody for a substantial period. He requests
that a lenient view be taken against both the convicts.Ld. Addl. Public Prosecutor for the State on the other
hand, has prayed for a strict punishment keeping in view the
seriousness of the offence.The object of sentence is not only required to be
reformative but it should also be punitive, preventive and deterrent.
The hon'ble Supreme Court has while considering the sentencing
policy in the case ofSiddarama and Ors. Vs. State of Karnatakareported in 2006 IV AD (Crl.) SC 78 has observed that:"........law regulates social interests, arbitrates
             conflicting claims and demands. Undoubtedly,
             there is a cross cultural conflict where living
             law must find answer to the new challenges and
             the courts are required to mould the sentencing
             system to meet the challenges. The contagion of
             lawlessness would undermine social order and
             lay it in ruins.          Friedman in his "Law in
             Changing Society" stated that, "State of
             criminal law continues to be as it should be a
             decisive reflection of social unconsciousness of
             society". Therefore, in operating the sentencing
             system,     law     should       adopt        the   corrective
             machinery or the deterrence based on factual
             matrix. By deft modulation sentencing processState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar                Page 26 of 22be stern where it should be, and tempered with
             mercy where it warrants to be. The facts and
             given circumstances in each case, the nature of
             the crime, the manner in which it was planned
             and committed, the move for commission of the
             crime, the conduct of the accused, and all other
             attending circumstances are relevant facts
             which       would      enter      into        the   area   of
             consideration......"The Hon'ble Court has further observed that:
             "...........The criminal law adheres in general to
             the principle of proportionality in prescribing
             liability according to the culpability of each kind
             of criminal conduct. It ordinarily allows some
             significant discretion the the judge in arriving at
             a sentence in each case, presumably to permit
             sentences that reflect more subtle considerations
             culpability that are raised by the special facts of
             each case.         Judges in essence affirm that
             punishment ought always to fit the crime; yet in
             practice sentences are determined largely by
             other considerations.             Sometimes it is the
             correctional needs of the perpetrator that are
             offered to justify a sentence.                Sometimes theState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar                Page 27 of 22desirability of keeping him out of circulation
             and sometimes even the tragic results of his
             crime. Inevitably these considerations cause a
             departure from just desert as the basis of
             punishment and create cases of apparent
             injustice that are serious and widespread......"
             "......Proportion between crime and punishment
             is a goal respected in principle, and in spite of
             errant notions, it remains a strong influence in
             the determination of sentences. The practice of
             punishing all serious crime with equal severity
             is not unknown in civilized societies, but such a
             radical     departure        from     the     principle   of
             proportionality has disappeared from the law
             only in recent times. Even now for a single
             grave infraction drastic sentences are imposed.
             Anything less than a penalty of greatest severity
             for any serious crime is through then to be a
             measure of toleration that is unwarranted and
             unwise.      But in fact, quite apart from those
             considerations          that        make       punishment
             unjustifiable when it is out of proportion to the
             crime, uniformly disproportionate punishment
             had       some        very      undesirable        practice
             consequences.."State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar               Page 28 of 22Further in the case of Sevaka Perumal Etc. Vs. State of
Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the
Hon'ble Supreme Court that:"......Undue sympathy to impose inadequate
               sentence would do more harm to the justice
               system to undermine the public confidence in
               the efficacy of law and society could not long
               endure under such serious threats.                     It is,
               therefore, the duty of every court to award
               proper sentence having regard to the nature of
               the offence and the manner in which it was
               executed or committed etc...."Also in the case of Dennis Councle MCGDautha Vs.
State of Callifornia reported in 402 US 183: 27 L.D. 2d 711, as
relied by the Hon'ble Supreme Court in the case ofSiddarama and
Ors. Vs. State of Karnatakait has been observed that :".......no formula of a foolproof nature is
               possible that would provide a reasonable
               criterion       in    determining           a   just    and
               appropriate punishment in the infinite variety
               of circumstances that may affect the gravity of
               crime.       In the absence of any foolproof
               formula which may provide any basis forState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar                Page 29 of 22reasonable criteria to correctly assess various
               circumstances germane to the consideration
               of gravity of crime, the discretionary judgment
               in the facts of each case, is the only way in
               which such judgment may be equitably
               distinguished....."Hence in the words of Mr. Justice A. Pasayat as held in
the case ofSiddarama and Ors. Vs. State of Karnatakait is
necessary for the court to keep in mind that the object should be to
protect the society and to deter the criminal in achieving the
avowed object to law by imposing appropriate sentence.The
Courts are expected to operate the sentencing system so as to
impose such sentence which reflects the conscience of the society
and sentencing process has to be stern where it should be.After giving due considerations to the facts and
circumstances of the case for deciding just and appropriate sentence
to be awarded for an offence, the aggravating and mitigating factors
and circumstances in which a crime has been committed are required
to be delicately balanced on the basis of really relevant circumstances
in a dispassionate manner by the court. At this stage this court is not
only required to look into the rights of the accused but also the rights
and interest of the society. A serious view is required to be taken in
respect of the offences adversely affecting the public confidence and
social order which are showing a distressingly increasing tendency.State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 30 of 22The convict Peri Swami is aged 36 years having a family
comprising of one brother, wife and two minor daughters. He is 5th
class pass and is a driver by profession. The convict is also involved
in another case bearing FIR No.89/06, Police Station Keshav
Puram, underSection 25/54/59of Arms Act and is in judicial
custody from 31.8.2009 till date.The convict M. Narishaman is a young boy of 24 years
having a family comprising of father and two mothers, one brother
and two sisters. He is 5th class pass and is a private worker. The
convict was previously involved in another case bearing FIR No.
451/09, Police Station Saraswati Vihar, UnderSection 379/411/34Indian Penal Code wherein he has been acquitted. He is in judicial
custody w.e.f. 1.9.2009.The maximum punishment prescribed for the offence
underSection 392Indian Penal Code is ten years & fine and for the
offence underSection 397Indian Penal Code is not less than seven
years. Keeping in view the aforesaid and also in view of the fact that
both the convicts are also involved in other cases of similar nature, I
hold that they are not entitled to any leniency. I hereby award the
following sentences to the convicts:The convict Peri Swami is sentenced to Rigorous
Imprisonment for a period of 8 (Eight) Years for the offence underSection 397Indian Penal Code. He is also sentenced to Rigorous
Imprisonment for a period of 3 (Three) Years and fine to the tune
of Rs.2,000/- for the offence underSection 25/54/59Arms Act. InState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar   Page 31 of 22default of payment of fine the convict shall undergo Simple
Imprisonment for a period of fifteen days. Both the sentences shall
run concurrently.The convict M. Narishaman is sentenced to Rigorous
Imprisonment for a period of 5 (Five) Years and fine to the tune of
Rs.10,000/- for the offence underSection 392Indian Penal Code.
In default of payment of fine the convict shall undergo Simple
Imprisonment for a period of Two Months.Benefit ofSection 428Code of Criminal Procedure
shall be given to both the convicts for the period already undergone
by them during the trial. The convicts are in Judicial Custody. They
are sent to judicial custody to serve the remaining sentence.It is evident that both the convicts are also reported to be
addicted to drugs and the present crime appears to be an outcome of
such addiction. Keeping in view the intent of the legislation which
provides      for     reformative        approach          towards   addicts,    the
Superintendent Jail concerned is directed to ensure that the convicts
are provided professional help for the purposes of rehabilitation. The
Superintendent Jail is directed to get the convicts treated from any
center established by the government in pursuance toSection 71of
the NDPS Act for the purposes of treatment, education, rehabilitation
and after care. The medical report of the convicts shall be sent to
this court for information on monthly basis. The


period during which the convicts undergo this treatment shall be
included in the period of substantiative punishment. Copy of thisState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar              Page 32 of 22order be sent to Superintendent Jail concerned for compliance.The convicts are informed that they have a right to prefer
an appeal against this judgment. They have been apprised that in
case they cannot afford to engage an advocate, they can approach the
legal Aid cell, functioning in Tihar Jail or write to the Secretary,
Delhi High Court Legal Services Committee, 34-37, Lawyers
Chamber Block, High Court of Delhi, New Delhi.Copy of the judgment and order on sentence be given to
both the convicts free of costs and another be attached with their jail
warrants.File be consigned to Record Room.Announced in the open court                           (Dr. KAMINI LAU)
Dated: 27.11.2010                                      ASJ (NW)-II: RohiniState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar           Page 33 of 22State Vs. Peri SwamyFIR No. 467/09PS Saraswati Vihar
27.11.2010
Present:      Addl. PP for the State.Both the accused in JC with Amicus Curiae Sh. Rajneesh
              Antil, Advocate.Vide my separate detailed order dictated and announced in
the open court, the convict Peri Swami is sentenced to Rigorous
Imprisonment for a period of 8 (Eight) Years for the offence underSection 397Indian Penal Code. He is also sentenced to Rigorous
Imprisonment for a period of 3 (Three) Years and fine to the tune of
Rs.2,000/- for the offence underSection 25/54/59Arms Act. In
default of payment of fine the convict shall undergo Simple
Imprisonment for a period of fifteen days. Both the sentences shall
run concurrently.The convict M. Narishaman is sentenced to Rigorous
Imprisonment for a period of 5 (Five) Years and fine to the tune of
Rs.10,000/- for the offence underSection 392Indian Penal Code. In
default of payment of fine the convict shall undergo Simple
Imprisonment for a period of Two Months.Benefit ofSection 428Code of Criminal Procedure shall
be given to both the convicts for the period already undergone by
them during the trial. The convicts are in Judicial Custody. They are
sent to judicial custody to serve the remaining sentence.It is evident that both the convicts are also reported to be
addicted to drugs and the present crime appears to be an outcome ofState Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar     Page 34 of 22such addiction. Keeping in view the intent of the legislation which
provides      for     reformative        approach          towards   addicts,    the
Superintendent Jail concerned is directed to ensure that the convicts
are provided professional help for the purposes of rehabilitation. The
Superintendent Jail is directed to get the convicts treated from any
center established by the government in pursuance toSection 71of
the NDPS Act for the purposes of treatment, education, rehabilitation
and after care. The medical report of the convicts shall be sent to
this court for information on monthly basis. The
period during which the convicts undergo this treatment shall be
included in the period of substantiative punishment. Copy of the
order on sentence be sent to               Superintendent Jail concerned for
compliance.The convicts are informed that they have a right to prefer
an appeal against the judgment. They have been apprised that in case
they cannot afford to engage an advocate, they can approach the legal
Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi
High Court Legal Services Committee, 34-37, Lawyers Chamber
Block, High Court of Delhi, New Delhi.Copy of the judgment and order on sentence be given to
both the convicts free of costs and another be attached with their jail
warrants.File be consigned to Record Room.(Dr. Kamini Lau)
                                                      ASJ-II(NW)/ 27.11.2010State Vs. Peri Swami, FIR No. 467/09, PS Saraswati Vihar              Page 35 of 22