The main legal point established in the judgment is the modification of the conviction from Section 397 to one under Section 392 of the IPC due to the non-recovery of the weapon of offence, in line with legal precedent and relevant case law.

INDERMEET KAUR, J.

1. These are two appeals preferred by appellant Gulzar and appellant Aslam. Appellant Gulzar has been convicted under Sections 392/397 of the IPC and has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo SI for 6 months. For his convictions under Section 394 of the IPC he has been sentenced to undergo RI for a period of 7 years and to pay a fine of Rs. 5000/- and in default of payment of fine to undergo SI for 6 months. Appellant Aslam, has been convicted under Sections 392/394/34 of the IPC and has been sentenced to undergo RI for a period of 5 years and also to pay a fine of Rs. 5000/-; in default of payment of fine to undergo SI for 6 months. The sentences were to run concurrently.

2. The version of the prosecution is that on 04.04.2009 at about 10.10 pm, the complainant Utkarsh (PW-4) had hired a TSR from Seemapuri. One boy was already sitting on the rear seat of the TSR. PW-4 sat on the TSR and another boy sat next to him. After crossing 10-15 yards, another boy sat next to the driver. After crossing Seemapuri both the boys sitting with PW-4 started beating him. One of the boys pressed his neck and the other stabbed him with a sharp weapon. When PW-4 tried to save himself, the second boy gave him a fist blow. Thereafter, PW-4 was robbed of his cash amounting to Rs. 3990/-, a Motorola Mobile, driving licence, SBI ATM card. PW-4 was then thrown out of the TSR. PW-4 who had suffered injuries went to the hospital and got his injuries dressed. On the following date, i.e. on 05-04-2009 he made a complaint to the police station and the present FIR was registered. Accused Gulzar and Aslam were arrested vide DD No. 7A where they had made a disclosure statement regarding their involvement in the present case. They were formally arrested in this case on 19.04.2009. Both the accused were identified in TIP proceedings by the complainant. The mobile phone was also recovered from accused Aslam. The weapon of offence i.e. the knife, was however not recovered.

3. On the basis of the aforenoted evidence collected by the prosecution, both oral and documentary, the accused persons were convicted and sentenced as aforenoted.

4. The star witness of the prosecution was the complainant, PW-4. PW-4 has on oath deposed that he was working as a fashion designer at the date of the accident, 04-04-2009 and at about 9.15 pm, PW-4 left his sister’s house and on reaching Dilshad Garden, at 9.30 pm, he boarded an auto for going to Anand Vihar. One passenger was already sitting on the rear side; he was told that the auto driver will charge only Rs. 10/- for dropping him at Anand Vihar and accordingly, PW-4 sat on that auto. The auto had only covered a distance of 10 feet, when the auto driver took another passenger who also sat on the rear seat. After another 10 feet, one more passenger came and sat on the front seat. PW-4 was sandwiched between two people on the rear seat. After a few minutes, the boy sitting on the right of PW-4, put his arm around his neck and started beating him. The said boy showed him a knife and said ‘shor mat machana’. The boy sitting with the driver also started giving him fist blows on his face. The boy sitting on his left also started beating him and started taking out his belongings which included his black colour Motorola MING having sim number 9987323868, his wallet having cash worth Rs. 3900/-, his ATM Card, driving licence, Metro Pass etc. PW-4 resisted the attack. He was beaten by the boys, as a result of which he sustained injuries on his chest, right arm and on the left side of his upper lip. Later, the auto slowed and PW-4 was pushed out. PW-4 noted that the auto number was covered by a polythene. The auto then ran away from the spot. PW-4 met a police man who took him to Hedgewar Hospital and went home afterwards he made a complaint at police station Vivek Vihar on the next day. Since his T-shirt got torn from