Full Text
HIGH COURT OF DELHI
CRL.M.(BAIL) 8083/2020 in CRL.A. 465/2020 & CRL.M.A.
13319/2020 SHAHZAD ..... Appellant
Through: Mr. Ajesh Kumar Sharma, Adv.
Through: Mr. Sanjeev Sabharwal, APP for State
16.10.2020 (Video-Conferencing)
JUDGMENT
1. This is an application under Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C) for suspension of sentence of four years’ rigorous imprisonment, awarded to the appellant/applicant by the learned Additional Sessions Judge (hereinafter referred to as “the learned ASJ”), consequent to his conviction under Section 394 of the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”).
2. Criminal proceedings were initiated, against the appellant, in relation to an act of bag snatching and firing, committed on 16th /17th April, 2018 by three boys, of which the appellant was alleged to be one. 2020:DHC:3044
3. Consequent to a complaint filed by the PW-1 (Vijay Kumar Sharma), who alleged that he had suffered injuries in the incident, an FIR was registered, against the appellant, under Section 398, read with Section 34 IPC.
4. Subsequently, before the learned Metropolitan Magistrate, Section 394, read with Section 34, IPC, was added to the provisions whereunder the appellant was charged.
5. The prosecution led the evidence of 18 witnesses, including PW-1 (Vijay Kumar Sharma), who was alleged to have injured in the incident.
6. Vide the impugned judgment, the learned ASJ has acquitted the appellant of the charges under Sections 393/397 read with Section 34 IPC, but has convicted him under Section 394 read with Section 34 IPC.
7. The findings in the impugned judgment are, in my opinion, exfacie, unsustainable, and border on perversity.
8. Paras 24 to 29 of the impugned judgement record the following findings: “24. Qua offence punishable under Sec. 397 IPC, it is clear that while PW-1 Vijay Kumar appeared before the court, during his examination-in-chief stated that accused Nadeem caused fire injuries and the bullet touched his chest portion. PW-2 Chandan and PW-4 Anil Kumar also during their examination-in- chief stated regarding using desi katta by accused Nadeem upon PW-1 while committing robbery of his bags and bag of PW-3 Gaurav Kaushik. They are the only witnesses to depose about the fact that whether any weapon was used in the crime of robbery and if so, which one was that. However, the weapon of offence was not recovered during investigation nor identified or obtained any expert opinion. Even the alleged injury to PW-1 has not been proved. As such, there is no sufficient material on record to bring home the guilt of the accused persons under Sec. 397 IPC. However, these witnesses in clear and unequivocal terms stated that these accused persons are responsible for the crime of robbery committed upon and during said commission of offence, PW -1 sustained bullet injuries.
25. With the above discussion, it is clear that complainant in clear terms stated that the accused persons tried to rob his bag as well as bag containing laptop of Gaurav Kaushik and even PW -1 sustained bullet injuries during the commission of said offence.
26. MLC Ex.PW8/B of PW-1 Vijay Kumar prepared by PW-8 Dr. Sandeep Mittal is clear to the aspect that on the date of incident, at about 3.05 am, he was brought to hospital by ASI Muninder.
27. To attract applicability of Sec 34 IPC, the prosecution is under an obligation to establish that there existed a common intention before a person can be vicariously convicted for the criminal act of another - it is necessary that each coperpetrator should have the necessary intent to participate or otherwise have requisite awareness or knowledge that the offence is likely in view of the common design. [Saleem (Mohd.) Vs. State, 2013 V AD (Crl) (DHC) 301].
28. Hence, with these observations and discussed the matter above, court is of the view that has come to the conclusion that the prosecution has failed to prove its case against either of these accused persons for the offence punishable under Sections 393/34 IPC and 397 IPC and as such, accused persons are acquitted of these offences punishable under Sections 393/34 I.P.C and 397 IPC however, these accused persons namely Nadeem and Shahzad are held guilty for the offences punishable under Sec. 394/34 IPC.
29. Sum up of the above discussion is that prosecution has failed to prove its case beyond all reasonable doubts to bring home the guilt against either of these accused persons for the offences punishable under Sections 393/34 I.P.C and 397 IPC and as such, accused persons namely Nadeem and Shahzad are acquitted for these offences punishable under Sections 393/34 and 397/34 IPC. However, accused persons namely Nadeem S/o Islamuddin and Shahzad S/o Late Salim are held guilty for the offences punishable under Sec. 394/34 IPC as prosecution has fully proved its case and are convicted accordingly.” (Emphasis supplied)
9. The learned ASJ has, therefore, after holding that the injury alleged to have been suffered by PW-1, has not been proved, proceeded to acquit the accused, i.e. Nadeem and the present appellant, of the charges under Section 393/34 and 397/34 of the IPC. Thereafter, without a single word by way of reasoning and in half a sentence, the learned ASJ has held that “however, these accused persons namely Nadeem and Shahzad are held guilty for the offences punishable under Sections 394/34 IPC.”
10. This Court has, apparently, therefore, to fathom the grounds, on which the learned ASJ has chosen to convict Nadeem and the appellant under Sections 394/34 of the I.P.C, for itself.
11. Consequent to such conviction, the learned ASJ has sentenced the appellant to suffer four years rigorous imprisonment.
12. Dispensation of criminal justice is a serious matter. The responsibility, on a trial judge, is onerous and has to be discharged with all due diligence. Deprivation of personal liberty, of a citizen, is an even more serious affair, and even if for an hour, can be directed only by an order reflecting due application of mind, and informed by clear and cogent reasons. The liberty of the citizen, all courts would be well advised to remember, is a cherished and preambular constitutional goal.
13. I am constrained to observe that the impugned judgment does complete disservice to the duty, cast on the learned ASJ, as a judge entrusted with the task of dispensing criminal justice.
14. In the first instance, the learned ASJ holds that the injury alleged to have been suffered by PW-1 was not proved, for which purpose he relies, inter alia, on the fact that the weapon of offence was also not recovered. Thereafter, he proceeds to acquit the appellant under Sections 393 and 397 of the IPC.
15. For reasons which find no mention in the impugned judgment, he, nevertheless, holds them guilty under Sections 394/34 of the I.P.C.
16. In my prima facie view, the findings of the learned ASJ, qua the conviction of the appellant under Section 394 read with Section 34 of the IPC, border on perversity.
17. Sections 393, 394 and 397 of the IPC may be reproduced thus: “393. Attempt to commit robbery.—Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.” “394. Voluntarily causing hurt in committing robbery.— If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.—If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”
18. Yesterday, Mr. Sanjeev Sabharwal, learned APP for the State, even while acknowledging that the impugned judgment does not appear to be correct, sought a day’s accommodation to enable him to produce decisions to the effect that, even if the order of conviction is unsustainable, suspension of sentence may, nevertheless, be refused on the ground that the appellant is involved in other cases.
19. No such decision has been placed before me today.
20. The proposition itself, for that matter, is ex facie untenable. When dealing with an application for suspension of sentence, the court is concerned with the order of conviction and the offence of which the appellant has been convicted, thereunder. The court is not expected to make a tally of other cases in which the appellant may be involved.
21. It is always open to the prosecution to oppose applications for suspension of sentence or, if the accused is under-trial, applications for bail in each case, which, if moved, would be decided on its own merits. If an order of conviction of an accused is, on its face, not sustainable, the court cannot refuse to suspend the sentence merely on the ground that the accused is involved in other cases, none of which find a reflection in the order under appeal.
22. Today, however, Mr. Sabharwal submits that there was no legal embargo on conviction under Section 394 and simultaneously acquittal under Section 393 of the IPC. He has, however, not produced any such decision, which would support this submission.
23. I am unable, prima facie, to agree. On the face of it, there cannot be acquittal under Sections 393 and 397 of the IPC and simultaneously conviction under Section 394 of the I.P.C.
24. Section 393 deals with attempt to commit robbery. Section 397 deals with robbery with attempt to cause death or grievous hurt. Section 390 deals with “robbery” and Section 392 prescribes the punishment therefor. Neither of the said provisions has been invoked against the appellant.
25. In view thereof, the appellant could not, prima facie, have been acquitted under Section 393 as well as 397 of the IPC and, simultaneously, convicted under Section 394 of the IPC, as the precondition for conviction under Section 394 of the IPC is commission of, or attempting to commit, robbery. In view of the findings recorded by the learned ASJ, on the basis whereof he eventually acquitted the appellant of the charge of having “attempted to commit robbery” under Section 393, IPC, he could not have convicted the appellant for having voluntarily caused grievous hurt during the course of such attempt.
26. Prima facie, therefore, the conviction by the learned ASJ, of the appellant under Section 394 of the IPC, cannot cohabit with the decisions to acquit the appellant under Sections 393 and 397 of the IPC. Moreover, the learned ASJ has also returned a finding that the factum of injury having been suffered by PW-1 was not proved.
27. There is no appeal, by the State, against the acquittal, of the appellant, under Section 393 and 397 of the IPC. If the fact of injury, having been suffered by PW-1, was not proved, prima facie, the conviction of the appellant under Section 394 of the IPC cannot sustain.
28. For all these reasons, I am of the view that a clear prima facie case, meriting suspension of the sentence awarded to the appellant, is made out.
29. Accordingly, this application is allowed.
30. The sentence of four years’ rigorous imprisonment, awarded to the appellant, by the learned ASJ, stands suspended, pending further orders of this Court.
31. Needless to say, this order would not inhibit the State from moving an application for vacation or modification of this order, if appropriate grounds, for moving such an application are found to exist.
32. Registry is directed to requisition the trial court record before the next date of hearing.
33. A copy of the trial court record would also be emailed, by the
C. HARI SHANKAR, J.