ORDER : S.G. Chattopadhyay, J. 1. By means of this criminal revision petition, the petitioners have challenged the judgment and order dated 06.07.2017 passed by the learned Addl. Sessions Judge, West Tripura, Sonamura in case number Criminal Appeal 01 of 2017 affirming the judgment and order of conviction and sentence dated 04.03.2017 passed by the learned Sub-Divisional Judicial Magistrate, Sonamura in case number GR 373 of 2012 sentencing each of the petitioners to RI for 2 (two) years and fine of Rs. 5,000/- for committing offence punishable under section 365 read with section 34 IPC with default stipulation and RI for 1 (one) year for committing offence punishable under section 324 read with section 34 IPC directing that both the sentences shall run concurrently. 2. The prosecution case, briefly stated, is that at around 4 O'clock in the afternoon on 28.07.2012, the petitioners who are father and sons, attacked Sri Narayan Chandra Baidya, a 73 years' old man in their neighbourhood when he was working in a Khas land in his possession and assaulted him. Thereafter, they fastened him with a napkin and started dragging him. On the way, the victim started screaming. Some people in the neighbourhood heard his screams and started coming to his rescue. The petitioners took away the victim to their house and tied him there. Sri Sujit Baidya, the first informant son of the victim, having come to know about the occurrence immediately informed police and rescued his injured father with police assistance. Then he filed a written FIR with the Officer in Charge of Jatrapur police station. 3. Based on his FIR, Jatrapur P.S. case No. 65 of 2012 under sections 365 and 324 read with section 34 IPC was registered against the petitioners and investigation was taken up. 4. Sri Samir Debbarma, Sub Inspector of police of Jatrapur police station carried out the whole investigation of the case and submitted charge sheet No. 53 of 2012 against the 3 (three) petitioners for committing offence punishable under sections 365 and 324 read with section 34, IPC. 5. The trial court framed charges of offence punishable under sections 365 and 324, IPC against the petitioners. During trial, prosecution examined 5 (five) witnesses including the victim and his first informant son and introduced 2 (two) exhibits including the injury report of the victim. 5. The trial court framed charges of offence punishable under sections 365 and 324, IPC against the petitioners. During trial, prosecution examined 5 (five) witnesses including the victim and his first informant son and introduced 2 (two) exhibits including the injury report of the victim. After the recording of the prosecution evidence was over, each of the petitioners were separately examined under section 313, Cr.P.C. They simply denied the charges and claimed that the charges were foisted on them. They declined to examine any witness on their defence. 6. The learned trial court, on appreciation of evidence, held the petitioners guilty and convicted and sentenced each of them to RI for 2 (two) years and fine of Rs. 5,000/- for committing offence punishable under section 365 read with section 34 IPC with default stipulation and RI for 1 (one) year for committing offence punishable under section 324 read with section 34 IPC directing that both the sentences shall run concurrently. The learned Addl. Sessions Judge, West Tripura, Sonamura, in appeal, affirmed the said conviction and sentence of the petitioners. Hence, this criminal revision petition. 7. I have heard Mr. S. Lodh, learned counsel for the petitioners who has pointed out to some flaws in the prosecution case. I have also heard Mr. S. Debnath, learned Addl. P.P who has supported the concurrent findings of the courts below and urged for maintaining the conviction and sentence of the petitioners. 8. To reiterate the facts, according to PW-3 Sri Narayan Chandra Baidya who is the victim, the 3 (three) petitioners together attacked him at about 4 O'clock in the afternoon and started assaulting him with fist and blows when he had gone to his land at Rajendra Tilla nearby his home. Among the petitioners, Musaraf Hussain, gave a dao blow on his hand and thereafter they tied his hands with a napkin (Gamcha) and started dragging him towards their house. In their house, they again tied him with a rope and assaulted him with fist and blows and with the blunt side of the dao. As a result, the PW received injuries in both of his hands, legs and on his back. When he raised alarm, the neighbouring people appeared at the spot. His son Sri Sujit Baidya (PW-1) also appeared with police and rescued him. As a result, the PW received injuries in both of his hands, legs and on his back. When he raised alarm, the neighbouring people appeared at the spot. His son Sri Sujit Baidya (PW-1) also appeared with police and rescued him. Thereafter, he was taken to Kathalia Primary Health Centre for treatment from where he was referred to GBP hospital at Agartala. 9. In his cross-examination, it was suggested to PW-3 that he fell down on earth in the forest land and received the injuries and thereafter lodged a false case against the petitioners due to his animosity against them. The PW denied the suggestion. He, however, admitted that Musaraf Hussain, one of the accused petitioners, had previously prosecuted him for trespassing into his rubber garden and removing his rubber trees. 10. His son Sri Sujit Baidya who is PW-1 narrated the same story and told that he received the information about the assault on his father over telephone from Sri Sadhan Das of his village. Immediately, he informed police and rescued his father with police assistance. According to the PW, his father initially received treatment in Kathalia Primary Health Centre wherefrom he was shifted to GBP hospital at Agartala where he was admitted for 3 (three) days. 11. In his cross-examination, the PW admitted that Musaraf Hussain, one of the petitioners, had previously lodged a case against his father and uncle which was pending in court. The PW, however, denied the suggestion of the accused petitioners that the instant case was lodged by him to save his father from the charges brought by the accused petitioners against him. 12. PW-4, Abul Kashem, a neighbour of the victim had gone to the house of accused petitioner Musaraf Hussain after he came to know about the occurrence and saw that the victim was kept tied with a rope in the house of the accused petitioners and there were bleeding injuries in his body. Thereafter, the PW and other villagers who assembled there untied the victim. Within a while police came and rescued the victim from there. 13. In his cross-examination, it was suggested to the PW that owing to his enmity with the accused petitioners he falsely implicated them. The PW denied the suggestions. The PW told in his cross examination that at the time of occurrence, accused Musaraf Hussain was a local committee member of a political party. 14. 13. In his cross-examination, it was suggested to the PW that owing to his enmity with the accused petitioners he falsely implicated them. The PW denied the suggestions. The PW told in his cross examination that at the time of occurrence, accused Musaraf Hussain was a local committee member of a political party. 14. To the similar effect is the statement of PW-5 Mst. Gayerer Necha, a neighbour of the victim. According to the PW, she was in front of her house at the time when she saw the 3 (three) accused petitioners dragging an old man towards their house who was bleeding all over. When she raised alarm, people from the neighbourhood started gathering. Thereafter, Smt. Prema Majumder and Abdul Miah (PW-4) entered into the house of the accused petitioners and brought him out. At that time the victim was bleeding profusely. Police came and took away the victim. 15. In her cross-examination, the PW denied the suggestion of the accused petitioners that he gave false evidence as a result of her animosity against the accused persons. The PW also denied the suggestion of the accused that she did not see the accused persons dragging the victim and the victim was bleeding profusely. 16. Statement of PW-2 Dr. Nilanjan Bhattacharjee is very relevant since he attended the victim immediately after he was brought to Kathalia Primary Health Centre on 28.09.2012 i.e. the date of occurrence. The PW noticed profuse bleeding from the cut injuries sustained by the victim. He noted the following injuries in his report (Exbt. 2): i. Cut injury measuring 1 cm x 1 cm over left wrist. ii. Circular abrasion 2 cm in diameter over right buttock and defused abrasion over outer side of right ankle. iii. Brush over left of upper chest wall which was defused. It was opined by the PW that the injuries were simple in nature which were caused by fist punch and dao. 17. In his cross-examination, the doctor (PW-2) accepted the suggestion of the accused that accidental fall in forest might have caused such injuries. The PW, however, denied the suggestion of the accused that he prepared a report mechanically without application of mind. 18. 17. In his cross-examination, the doctor (PW-2) accepted the suggestion of the accused that accidental fall in forest might have caused such injuries. The PW, however, denied the suggestion of the accused that he prepared a report mechanically without application of mind. 18. The learned trial court after detailed examination of the evidence concluded that offence under section 365 IPC was proved against the accused petitioners because after taking the victim away from his land they confined him in their house where he was forcefully tied with a napkin so that he might not escape from there. Having relied on the decision of the Gauhati High Court in Samir Saha and Anr. v. State of Tripura reported in 1998 Cri. LJ 1360 (Gau), the learned trial court convicted the 3 (three) accused petitioners and sentenced them under section 365 read with section 34 IPC. 19. With regard to section 324 IPC, it was argued before the learned trial court that the blood stained wearing apparels were not seized and the weapon of offence was not recovered which belied the prosecution case about the assault of the victim. The learned trial court having relied on the decision of the Orissa High Court in Gour Gadita v. State of Orissa reported in 1994 Cri. LJ (NOC) 178 (Ori) held that when there were sufficient evidence that the petitioners caused the hurt to the victim by dangerous weapon, they could not be acquitted of the charge of section 324 IPC only on the grounds that no blood stained cloth was seized and the weapon of offence was not recovered. 20. In appeal, the learned appellate court did not find any infirmity in the conviction and sentence passed by the learned trial court and accordingly affirmed the findings of the learned trial court. 21. Mr. S. Lodh, learned counsel for the petitioners, has argued that the learned trial court erroneously held the petitioners guilty without appreciation of evidence and as such the findings of the learned appellate court upholding the judgment of the learned trial court warrant interference in revision. According to Mr. Lodh, learned counsel, the son of the victim (PW-1) who lodged the first information stated in his deposition before the court that he received the information about the assault on her father over telephone from one Sri Sadhan Das. According to Mr. Lodh, learned counsel, the son of the victim (PW-1) who lodged the first information stated in his deposition before the court that he received the information about the assault on her father over telephone from one Sri Sadhan Das. But, neither in his FIR nor in his police statement he mentioned the name of said Sri Sadhan Das. Moreover, prosecution did not produce said Sri Sadhan Das who could be a vital witness on behalf of the prosecution. According to Mr. Lodh, learned counsel for the petitioners, adverse presumption should have been drawn by the learned trial court for withholding the evidence of said Sri Sadhan Das. Further submission on behalf of the petitioners is that the weapon of offence is not recovered by the investigating agency. Moreover, the victim was allegedly admitted in GBP hospital. But, no injury report issued from GBP hospital has been taken into evidence on behalf of the prosecution. The injury report proved by PW-2 does not also confirm that the injuries allegedly sustained by the victim were caused by a dao. As a result, the charge under section 324 IPC does not survive against the accused. It has also been argued by Mr. Lodh, learned counsel for the petitioners that when the victim was allegedly abducted by the petitioners he was taken through a road accessible by the villagers and surrounded by houses and the villagers also gathered in the house of the petitioners after seeing the victim being dragged by the petitioners to their house which does not fulfill the ingredients of the charge of section 365 IPC. According to learned counsel, for a charge under section 365 IPC, it has to be proved that the accused kidnapped or abducted someone to cause him to be secretly and wrongfully confined whereas in the instant case the victim was allegedly taken through a public road in the full view of the villagers. Learned counsel of the petitioners, therefore, urges the court to set aside the impugned judgment of the appellate court upholding trial court's judgment and order of conviction and sentence. 22. Mr. S. Debnath, learned Addl. Learned counsel of the petitioners, therefore, urges the court to set aside the impugned judgment of the appellate court upholding trial court's judgment and order of conviction and sentence. 22. Mr. S. Debnath, learned Addl. P.P, per contra, has argued that the consistent evidence of the prosecution witnesses has clearly established both the charges against the petitioners and as such the trial court rightly held them guilty and convicted and sentenced them which was rightly upheld by the learned appellate court. It is submitted by Mr. Debnath, learned Addl. P.P that the 3 (three) petitioners brutally tortured an old and infirm man of the age of 73 and as such the punishment imposed on them by the courts below does not call for any interference. Learned Addl. P.P, therefore, urges the court for dismissing the instant petition. 23. Insofar as the conviction of the accused petitioners under section 365, IPC is concerned, the learned trial court found that the petitioners wrongfully confined the victim in their house and in order to prevent his escape they tied his hands with a rope. It was therefore concluded by the learned trial court that the ingredients of section 365 IPC were fulfilled and the petitioners were liable to be convicted under section 365 IPC which was accepted by the learned appellate court. To reach the aforesaid conclusion, the learned trial court relied on the decision of the Gauhati High Court in the case of Samir Saha and Anr. (supra) wherein the appellants after kidnapping the victim girl fastened her mouth with a piece of napkin to prevent her from shouting. Thereafter, they secretly confined her in a room and locked the room from outside so as to keep her in concealment and prevent her escape. It was observed by the High Court in paragraph 9 of the judgment that the gravamen of the offence under section 365 IPC is the intention to keep the wrongful confinement as secret. In the instant case, the courts below missed this essential ingredient of section 365 IPC and erroneously held that the petitioners committed offence under section 365 IPC since they wrongfully confined the victim in their house and tied his hands to prevent his escape from there. 24. At this stage, it would be apposite to reproduce section 365 IPC, which is as under: 365. 24. At this stage, it would be apposite to reproduce section 365 IPC, which is as under: 365. Kidnapping or abducting with intent secretly and wrongfully to confine person.-Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 25. It would be apparent from a careful reading of the section 365 IPC that in order to make out an offence under section 365 IPC, it must be proved that the accused intended to confine the victim wrongfully and secretly and in order to fulfill such intention the whereabouts of the victim was concealed from others by them. 26. These essential ingredients of section 365 IPC are not fulfilled in the instant case. The evidence discussed above would clearly show that the petitioners carried away the victim to their house by dragging him by force in broad daylight when he was working in his land. Moreover, when he was being carried away through the village road accessible by the villagers, the victim was screaming and his screams attracted the notice of PW-5 and other villagers. Apart from it, there is no evidence that after taking the victim to their home they kept him concealed in any room or any other hidden place in their house and designed to keep his confinement secret from others. They did not even fasten his mouth when they brought him to their home from his land. Though the overt acts of the petitioners amount to wrongful confinement, there is no evidence to infer that the petitioners intended to confine him secretly. 27. In view of the evidence available on record and what is discussed above, this court is of the considered view that the offence committed by the petitioners amounts to one of wrongful confinement under section 342 IPC and not under section 365 IPC. 28. With regard to the conviction of the accused under section 324 IPC, it is found that there is sufficient evidence supporting the allegation that the petitioners without any grave and immediate provocation assaulted the victim by means of a dao which is an instrument for cutting and caused hurt to him. The medical evidence of PW-2 in this regard suffers from no infirmity. The medical evidence of PW-2 in this regard suffers from no infirmity. The eye witness version of the victim is very convincing which could not be impeached in cross-examination. The evidence of other witnesses who witnessed the visible injuries suffered by the victim has lent strong circumstantial support to the evidence of the victim. I have found no reason to disbelieve the prosecution version in this regard. The findings of the courts below with regard to the conviction of the petitioners under section 324 IPC, therefore, do not suffer from any kind of infirmity. Insofar as their sentence under section 324 IPC is concerned, the learned trial court has satisfactorily spelt out the reasons as to why the benefit of probation is not given to the convicts. It is true that the convict petitioners showed extreme brutality in the way they assaulted the old man of the age of 73 years for which 1 (one) year's RI awarded to them by the learned trial court is appropriate which does not call for any interference. 29. Resultantly, the conviction and sentence of the petitioners under section 365 IPC is set aside and their conviction and sentence under section 324 read with section 34 IPC is upheld and the revision petition is, thus, partly allowed to the extent aforesaid and disposed of accordingly. The petitioners who are on bail, shall surrender before the learned trial court within a period of 1 (one) month from today to serve out rest of their sentence failing which the trial court shall take appropriate step to make them suffer the remaining term of their sentence. Send back the LC record.