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3. After completion of investigation, the police filed a challan against accused-appellant under Sections 328, 379 and 120B, IPC. Ramesh Chand Sharma absconded and could not be arrested, therefore, was declared absconder.

4. 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 120B, 397 and 328, IPC. The accused denied the charges and claimed to be tried.

5. 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 120B, IPC, as mentioned above.

6. 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.

9. 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.

10. The accused-appellant was charged with the offence under Section 120B, 397 and 328, IPC. However, after appreciating the prosecution evidence, the learned trial court recorded a finding that the prosecution has failed to prove the case against accused Narendra Sharma for the offence under Sections 328 and 397, IPC, but convicted him under Sections 328 and 397 IPC read with Section 120B IPC. The question for consideration before this court is whether, in the facts and circumstances of the present case, the prosecution has undoubtedly proved that the appellant Narendra Sharma and co-accused Ramesh were members of conspiracy to commit the crime in respect of offence under Sections 328 and 397 IPC. For ready reference Sections 328, 397 and 120B IPC are reproduced as under:

31. Consequently, the appeal is partly allowed. The conviction of the accused-appellant by trial court under Section 328 read with Section 120B, IPC, is maintained. The conviction of appellant by trial court under Section 397 read with Section 120B, IPC, is set aside, but he is convicted for the offence under Section 392 read with Section 120B, IPC, and he is sentenced under Sections 328, 392 read with Section 120B, IPC, to five years rigorous imprisonment and a fine of Rs. 1000/-; in default of payment of fine, to further undergo fifteen days simple imprisonment.