Order acquitting man for attempted robbery, convicting for injury perverse, says HC

The order came on the convict's application seeking suspension of his sentence during pendency of his appeal against his conviction. While granting relief to the convict, the high court said that "in the first instance the ASJ holds that the injury alleged to have been suffered by the complainant was not proved, for which purpose he relies on the fact that the weapon of offence was not recovered, and thereafter, he proceeds to acquit the appellant under section 393 (attempt to robbery) and section 397 (using a weapon or causing grievous hurt during robbery or attempt to robbery) of IPC".

The Delhi High Court Friday termed as "perverse" and "unsustainable" a sessions court order which acquitted a man for attempted robbery and using a weapon but convicted him for causing hurt even though the allegation of injury was not proved. Justice C Hari Shankar observed that "responsibility of a trial judge is onerous and has to be discharged with all due diligence" and deprivation of personal liberty of a citizen, which is a serious matter, can be directed only by an order which indicates application of mind and gives "clear and cogent reasons".

"I am constrained to observe that the impugned order (of conviction) does complete disservice to the duty cast on an Additional Session Judge (ASJ) who is entrusted with the task of dispensing criminal justice," Justice Shankar said. "Findings in the impugned judgement are ex-facie unsustainable and border on perversity," the high court said while coming down hard on the ASJ who convicted the accused for offence of voluntarily causing hurt in committing robbery under section 394 of IPC and sentenced him to imprisonment for four years.

The high court also said that "there is a clear prima facie case meriting suspension of sentence awarded to the appellant (convict)". It suspended the sentence pending further orders in his appeal. The order came on the convict's application seeking suspension of his sentence during pendency of his appeal against his conviction.

While granting relief to the convict, the high court said that "in the first instance the ASJ holds that the injury alleged to have been suffered by the complainant was not proved, for which purpose he relies on the fact that the weapon of offence was not recovered, and thereafter, he proceeds to acquit the appellant under section 393 (attempt to robbery) and section 397 (using a weapon or causing grievous hurt during robbery or attempt to robbery) of IPC". "For reasons, which find no mention in the impugned order, he (ASJ) nevertheless holds the appellant guilty under section 394 IPC. In my prima facie opinion, the findings of the ASJ que conviction of appellant under section 394 read with section 34 (common intention) of IPC borders on perversity," Justice Shankar said.

The high court also rejected additional public prosecutor Sanjeev Sabharwal's contention that the convict's sentence be not suspended as he was involved in other offences, saying "the proposition itself is ex facie untenable". Justice Shankar said that when dealing with applications of suspension of sentence, a court is concerned with the order of conviction and the offence for which an accused is convicted and it is "not expected to make a tally of other cases in which the appellant may be involved".

"If an order of conviction 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. There can be no acquittal under sections 393 and 397 of IPC and a simultaneous conviction under section 394 of IPC," the high court said. It also said that once the ASJ returned a finding that factum of injury having been caused to the complainant was not proved, conviction under section 394 of IPC "cannot be sustained".

The appellant was accused of snatching the bag of the complainant on April 16-17, 2018 and firing from a weapon at him..