JAIN, J. - (1.) ACCUSED Narendra Sharma @ Pappu S/o Mahendra Sharma preferred this appeal challenging his conviction and sentence passed by the Additional Sessions Judge (Fast Track), Alwar, in Sessions Case No. 45/2003, whereby he was convicted under Sections 328 and 397 read with Section 120-B of the Indian Penal Code (for short, 'the IPC') to seven years rigorous imprisonment and a fine of Rs. 1,000/-; in default of payment of fine, to further undergo three months additional rigorous imprisonment.
(2.) BRIEFLY stated the facts of the case are that a written- report (Exhibit P-3) was lodged on 26. 5. 2002 at Police Station, Kotwali - Alwar, by Babulal Meena (PW-6) S/o Navratan, stating therein that on 24. 5. 2002 her sister-in-law (Bhabhi) fell down from a tree and on that account she sustained injuries, therefore, they brought her to the Government Hospital for treatment. On 25. 5. 2002, when they were taking their meals in- front of the hospital, at about 4. 00 PM one 35 to 40 years old person came there and told them that he would arrange IT Card for them and thereby they may be able to get free medicines and meals from the hospital itself. He further told us to bring our ration- card for that purpose. On his saying, he went to his village and brought the ration card. That person came back on 26. 5. 2002 at about 7'o clock in the morning accompanied with one another person, who was introduced by him as his younger brother, and asked them about the ration-card; we replied that it has been summoned. On this, he told them that he has to go to his village today; he further told that this is his younger brother and asked them to go with him to immediately arrange for one Photostat copy of the ration-card. Thereupon, he sent his brother-in-law (gainer) to immediately arrange for one Photostat copy of ration- card; and then he (complainant), his father Navratan and that person remained in the hospital itself. Thereafter that person told him that he will take his father with him as he is an old person and Doctor will prepare a card immediately on seeing the old man, and thus his father went with that person. He also told them that his younger brother Narendra Sharma is already with them and in case there is any need of anything then they may tell him. He disclosed his name as Ramesh Chand Sharma. Thereafter Narendra Sharma tried to run away but they caught hold of him and asked him about the complainant's father. Narendra told him that he does not know anything about Ramesh Chand Sharma and he is not his brother. They told Narendra that in the morning he was introduced as his younger brother and now why he is denying. Thereafter at about 2. 30 PM two persons brought complainant's father in a tempo in unconscious condition and only thereafter they came to know that a cash amount of Rs. 21,000/- and gold- earrings weighing 1/2 tola (one Tola measures about twelve grams) of his father were stolen. On the basis of this written-report. an FIR No. 220/2002 was registered under Sections 328, 379 and 120-B, IPC. After completion of investigation, the police filed a challan against accused-appellant under Sections 328, 379 and 120-B, IPC. Ramesh Chand Sharma absconded and could not be arrested, therefore, was declared absconder. Initially the accused was tried by the Court of Chief Judicial Magistrate. Thereafter, on coming to the notice of the said Court that the offence under Section 328, IPC, is triable by the court of Sessions Judge, the case was accordingly transferred. The trial court framed charge against the accused under Sections 120-B, 397 and 328, IPC. The accused denied the charges and claimed to be tried. The learned trial court, after considering the submissions of both the parties and the evidence available on the record, acquitted the accused-appellant from the offence under sections 328 and 397, IPC, but convicted and sentenced him under Sections 328 and 397 read with Section 120-B, IPC, as mentioned above. The learned counsel for the appellant contended that all the prosecution witnesses in the present case were interested witnesses, which have been wrongly believed by the trial court. The prosecution has failed to prove any relation in between the accused with co-accused Ramesh so as to prove the appellant to be a member of conspiracy with co-accused Ramesh. The prosecution has also failed to prove any agreement or meeting of mind of the appellant with co-accused Ramesh. While referring the prosecution evidence, it was also contended that Navratan went with co- accused Ramesh and allegation of committing offence is against Ramesh and no specific overt act has been attributed against the present accused and he has wrongly been convicted. The site-plan was not prepared in the case. Recovery of cash amount of Rs. 21,000/- or goldenearrings has not been made from the accused- appellant. Therefore, there is no corroborative evidence in the present case. It is further contended that a glass of juice with poison was given to Navratan, but, as per the FSL Report (Exhibit P-8), no poison was administered as a negative report was given by public analyst. Relying upon these arguments the learned counsel for the accused-appellant contended that the learned trial court has committed an illegality in convicting the accused-appellant for the above offence and accused is liable to be acquitted.
(3.) THE learned counsel for the accused-appellant lastly contended that the accused-appellant has already remained in jail for about four years and ten months as he is in jail since 26. 5. 2002, and, in case, this court does not agree with his contention and accused is not acquitted then, at least, his sentence of imprisonment may be reduced to a period of sentence of imprisonment already undergone by him. The learned counsel for the State, on the other hand, contended that there is sufficient evidence to prove the agreement in between Ramesh and accused appellant Narendra to commit the offence of robbery. There are eye-witnesses in the case to prove the charge against the accused. The judgment of the trial court has been supported and it is contended that there is no merit in this appeal and the same deserves dismissal. I have considered the submissions of the learned counsel for both the parties and minutely scanned the impugned judgment as well as the record of trial court. ;