The prosecution's failure to prove the charge under Section 397 IPC led to the alteration of the appellant's conviction to the offence under Section 411 IPC.

JUDGMENT :

Manoj Kumar Ohri, J.

By way of the present appeal, the appellant has assailed the judgment dated 10.03.2015 passed by the Addl. Sessions Judge, Delhi vide which the appellant was convicted for the offence punishable under Section 392 read with Section 397 IPC in SC No.80/13 arising out of FIR No.153/2013, registered under Sections 397/411 IPC at Police Station Shahdara, Delhi.

2. Vide order on sentence dated 10.03.2015 the appellant was sentenced to undergo RI for 7 years under Section 392 read with Section 397 IPC along with fine of Rs.5,000/-, in default of which the appellant was directed to undergo SI for 6 months. The benefit of Section 428 Cr.PC was given to the appellant.

3. Brief facts, as noted by the Trial Court are that:

"On 15.04.2013, a PCR call was received that an injured unconscious male was found near the railway tracks behind Shahdara Metro Station. The call was marked to HC Shri Pal for further enquiry. He reached at the spot and came to know that the victim had been rushed to GTB Hospital by CATS ambulance. From the bio-data of the victim lying at the spot, his identity was revealed as Jaiveer Singh. Constable Amit, who made the PCR call, was contacted and he informed that the neighbourers informed him about the victim. The victim was unfit and unconscious in GTB Hospital. No eye witness was found and therefore initially, the case was registered under Section 308 IPC. In the evening, the relatives of the victim came from Ferozabad, who shifted him to Sir Ganga Ram Hospital. On enquiry, it was revealed that victim used to live with his elder sister at Ferozabad. On 17.04.2013, statement of Joginder Pal Singh (brother in law of the victim) was recorded wherein he stated that the victim works with Baidyanath Company and had left Ferozabad in the night of 14.04.2013 at about 10.00 pm to Delhi to attend an interview in another firm. He also stated that the victim was carrying with him one black colour bag, two mobile phones, one gold ring and also provided IMEI number of the mobile phone of the victim. Since no article of the victim was found either in the hospital or on the person of the victim, Section 397 IPC was added. On 24.04.2013, the victim was declared stable and his family got him discharged from the hospital. During investigation, an information was received that Chhotey Lal @ Chuttala, who was the BC of PS Shahdara, might be involved in the present incident. On 18.04.2013, Chhotey Lal was apprehended. On interrogation, he stated that in the night of 14/15.04.2013 at about 2.30 am, the victim was urinating in the bushes near the railway track and he hit him on his head with railway track stone and when the victim fell down, he robbed him. At his instance, a looted Nokia phone and a golden ring and a bag containing documents in the name of victim Jaiveer Singh were recovered from his house. On 24.05.2013, victim and his sister Somwati came to Delhi. The victim correctly identified his ring in the TIP. He also produced the bill of purchase of Nokia phone. Statement of victim was recorded on 24.05.2013 wherein he stated that he got down from the train at Shahdara Railway Station at 2.00-2.15 am with water bottle and that someone hit him over head and when he became partly conscious, he found himself in Ganga Ram Hospital. Investigation was completed and charge sheet was filed against the accused under Section 397/411 IPC."

4. The charge was framed against the appellant under Section 392 read with Section 397 IPC and Section 411 IPC, to which he pleaded not guilty and claimed trial.

5. During the course of the trial, in order to prove its case, the prosecution examined 14 witnesses. Jaiveer Singh, the victim was examined as PW-2. Ct. Amit Kumar who, on being informed by a rag picker that a person was lying unconscious near the railway track behind the metro station, passed on the information to PCR was examined as PW-7. HC Shri Pal Singh and Ct. Krishan, who on receipt of DD No.9A reached the spot, we