JUDGMENT Deepak Gupta, C.J. 1. By means of this petition, the petitioner has challenged the judgment dated 06.04.2005 passed by the learned Additional Sessions Judge, West Tripura, Khowai, in Criminal Appeal No. 10(3) of 2004, whereby the appeal of the present petitioner was dismissed and his conviction under Section 365/511/323 read with Section 34 IPC was upheld and the sentence imposed by the learned Trial Court was also not disturbed. 2. Briefly stated, the prosecution story is that the complainant Debasish Deb was a classmate of one Achinta Nag. The said Achinta Nag asked the complainant as to whether he was interested in learning how to drive a motorcycle. The complainant had replied in affirmative and, thereafter, the complainant and Achinta Nag went on a bicycle to meet the present appellant Firoz Debbarma. They went to Jamtilla on a bicycle. There they parked the bicycle and crossed a ditch and then climbed up a hill. Then they walked upto the jungle of Jamtilla where they met the appellant. The appellant insisted that the complainant should follow him to his house from where the motorcycle would be brought. The behaviour of the appellant aroused suspicion in the mind of the complainant and he asked where he was being taken. Thereafter Achinta Nag broke a branch of a tree and handed over the same to the present appellant who gave two blows of the branch on the head of the complainant. The complainant raised an alarm and on hearing his alarm the people from the neighbourhood rushed to the spot. At this stage the appellant and the co-accused Achinta Nag fled from the spot leaving him there. 3. On this basis the complainant filed the complaint stating that he was sure that the idea of the two accused was to kidnap him. The conviction is based solely on the statement of Debasish Deb because the other witnesses have not seen the occurrence but reached the place of occurrence after the accused had already fled away. I have perused their statements and there is nothing in their statements which would in any way indicate that they have identified the accused. 4. The conviction is based solely on the statement of Debasish Deb because the other witnesses have not seen the occurrence but reached the place of occurrence after the accused had already fled away. I have perused their statements and there is nothing in their statements which would in any way indicate that they have identified the accused. 4. It has been urged by the learned counsel for the accused that PW 3 Samir Ghosh in his statement has mentioned that the persons who were apprehended by the police personnel were not tribal persons and since the appellant is a tribal it means that he was not involved in the occurrence. The entire statement of the witness has to be read and in the examination-in-chief this witness had clearly stated that out of the two persons who were apprehended one was a non tribal meaning thereby that other was a tribal. True it is, that later on in cross examination this witness has stated that the persons who were apprehended by the police personnel were non tribal but if this statement is read as a whole it does not indicate that no tribal person was involved. Even otherwise I find no reasons to disbelieve the statement of the claimant that he was taken by Achinta Nag to the place of occurrence on the pretext that somebody will teach him how to ride a motorcycle. He was also beaten there and, therefore, the offence under Section 323 IPC is clearly made out. 5. The main issue is whether an attempt of kidnapping is made out. The informant does not state that any force was used. He does not state that the accused tried to drag him away from the spot. All that he states is that when he questioned the accused as to where he was being taken the appellant accused started beat him with a stick whereas the co-accused Achinta Nag held him by his waist. Thereafter they ran away. Other than the apprehension of the informant that he was going to be kidnapped there is no evidence whatsoever to indicate that there was any attempt to kidnap the complainant. He does not say that there was any talk of any ransom; he does not say that the accused tried to forcibly take him away or that he was kept in captivity. He does not say that there was any talk of any ransom; he does not say that the accused tried to forcibly take him away or that he was kept in captivity. No doubt an attempt can also be inferred but the circumstances in the present case do not prove beyond reasonable doubt that there was an attempt to kidnap. 6. It is obvious that when the complainant raised an issue as to why he was being taken to a different place some altercation took place and he was beaten on the head but even thereafter there was no attempt to either kidnap him or take him away from the place of occurrence. Therefore, I am of the considered view that the conviction under Section 365 IPC is totally unjustified and the same is accordingly set aside. Therefore, the appeal of the petitioner is partly allowed. The conviction under Section 365 IPC is set aside and his conviction under Section 323 read with Section 34 IPC is maintained. The co-accused Achinta Nag has held the benefit of being released under the provision of Probation of the Offenders' Act. The appellant has been punished to undergo 6 (six) month imprisonment under Section 323IPC. The occurrence took place more than ten years back and at the relevant time the appellant was 20 years. He is now 31 years old and it would be very unfair to send him behind bars at this stage. 7. Therefore, though the conviction is upheld, the sentence is modified and there shall be no substantive sentence of jail imposed upon the petitioner. The accused petitioner is ordered to be released on payment of fine of Rs. 10,000/- to be deposited within 2 (two) months from today. In case he fails to deposit the fine then he shall undergo simple imprisonment for a period of 1 (one) year. In case the fine is deposited it shall be paid to the victim PW 3. 8. Criminal Revision petition is disposed of. Send down the LCRs forthwith.