ORDER
P.C. Naik, J.
1. In S.C. No. 9 of 1992 (S.C. 69/92 OCC), the petitioner was tried by the Asst. Sessions Judge, Bhanjanagar for offences under Sections 364/384/ 511, IPC was made out, but an offence under Section 363, IPC has been made out against the petitioner and accordingly, he was held guilty of the said offence and was sentenced to undergo R.I. for five years. Aggrieved by his conviction and sentence the petitioner filed an appeal before the Ist Addl. Sessions Judge, Ganjam, Berhampur being criminal appeal No. 25/93 (129/92 ODC), Vide judgment dated 7-9-1993, the learned Addl. Sessions Judge affirmed the conviction under Section 363, IPC recorded by the trial Court, but reduced the sentence of 5 years imposed by the trial Court to R.I. for six months. The learned Addl. Sessions Judge however further also held that an offence under Section 384 read with Section 511, IPC was also made out and accordingly convicted the petitioner for the said offence and sentenced him to undergo R.I. for 15 days. Both the sentences were to run concurrently. Aggrieved by the appellate order, the petitioner (accused) has preferred this revision.
2. The prosecution story is that P.W. 8, Hitesh Kumar Chawada is the younger son of Hiralal Jairam (P.W. 2) and at the time of incident was aged about 9 years. He was a student of Class-Ill at the Government Junior Maulika Bidyalaya situate near the P.W.D., Main Road. On 9-11-1991 at about 1-15 p.m. when P.W. 8 was going home for lunch, the petitioner on seeing him enquired about the son of Hiralal Jairam. On being told by P.W. 8 that he is the son of Hiralal Jairam, the accused told him that his father had met with an accident and asked the boy to accompany him. Accordingly, P.W. 8 accompanied the petitioner on his cycle. On the way P.W. 5 Ganesh Singh who is known to P.W. 8 then enquired as to where he was going. On there being no response, P.W. 5 went away. As P.W. 8 did not come home for lunch, his parents got worried and P.W. 2 went in search of his son P.W. 8 (Nitesh Chawada). He was not found in the school premises. On the way P.W. 2 met P.W. 5 who informed him that he had seen the accused (petitioner) with P.W. 9 on his cycle and going towards Bellaguntha check gate.
3. According to the prosecution, the accused took P.W. 8 to a house in village Tamarada. The accused left P.W. 8 in the house and went away saying that he would return by about 4 p.m. P.W. 8 (Nitesh Chawada), however, managed to escape from the house and on the way he met a person who took him to the Canara Bank where he was identified by Sarat Chandra Nayak and Bidyuta Rath as being the youngest son of P.W. 2. When Bidyuta Rath was taking P.W. 8 on his motorcycle, he saw P.W. 2 near the check gate in a police jeep. So the said Bidyuta Rath (P.W. 4) restored P.W. 8 to the custody of P.W. 2. Thereafter written report about the incident was lodged by P.W. 2 with the police. It is mentioned in the report that he (P.W. 2) was informed by Ganesh Singh (P.W. 5) and Premananda Sadangi (P.W. 7) that the accused had kidnapped his son P.W. 8. On the basis of his report, a case was registered against the petitioner who was apprehended and after due investigation a charge sheet for offences under Sections 364/384/511, 1PC was filed against him.
It may be mentioned that an anonymous letter demanding a ransom of Rs. 20,000/- for releasing P.W. 8 is also said to have been found by P.W. 2 near his gate. This letter was seized by the police and was produced during trial and marked M.O.I.
In order to prove its case, the prosecution examined 11 witnesses. The plea of the petitioner-accused is one of denial. However, no defence evidence was adduced.
4. Learned counsel for the petitioner vehemently argued that the courts below mis-appreciated the evidence on record and has drawn wrong conclusion which lead to the conviction of the petitioner. Learned counsel states that no doubt the name of the accused is mentioned in the FIR but this he contends was alleged to be on the basis of the information received from witnesses Ganesh Singh (P.W. 5), Paramanda Sarangi (not examined) and Dilip Kumar Chadha (not examined) who state to have seen the accused with the boy. But, in view of the fact that P.W. 1 and P.W. 7 were declared hostile and as P.W. 5 (Ganesh Singh) admits in his evidence that he did not disclose the name of the accused to P.W. 8, the learned counsel submits that the entire story ought to have been disbelieved and the fact that the name of the accused was mentioned in the FIR would not be relevant. This argument was also advanced before the Courts below and was duly considered and rejected. This aspect was also considered and discussed by the lower appellate Court in its judgment and was also rejected. Having considered the submissions and on going through the reasoning of the Courts below, I concur with the reasoning advanced by the courts below and over-rule the contentions of the learned counsel for the petitioner.
The infirmity in the statement of P.W. 2 and P.W. 15, the I.O. regarding the actual place of arrest was also pointed out but this also, in my view, cannot weaken the prosecution case as this cannot affect the merits of the case. Likewise, it was also pointed out that in view of different versions given by P.W. 8, (the victim) regarding his escape, his Statement ought to have been disbelieved, in its entirety, I do not agree. The P.W. 8 (Nitesh Chawada) at the time of the incident was about 9 years old. The learned Judge put some questions to him and finding him capable of understanding administered the oath. P.W. 8 has given a clear version of the incident. He has also stated that while the accused was taking him on a cycle, they met Ganesh Singh who lives in the locality. He has stated that he was taken to the village and left there. He has also narrated the incident about reaching the Canara Bank from where the father of one Subrata recognised him and directed some officers of the Bank to take him home on his motor cycle. He further stated that on the way he saw his father in a police jeep. So, he was restored to his father who take him home and in the evening a report was lodged. He also states that he had seen the accused and had narrated the incident to the I.O. He was thoroughly cross-examined and by far and large looking to his age, he has stood the test of cross-examination. Looking to the young age of P.W. 8, his statement appears to be quite natural and minor discrepancies here and there have to be over-looked as they do not in any way affect the prosecution case. The contention that he was tutored in order to implicate the accused cannot be accepted. There is nothing on record to indicate as to why P.W. 2 and P.W. 8 would go to such great length so as to implicate the accused in the offence, of kidnapping.
The evidence of P.W. 3, the informant who is the father of P.W. 8 appears to be quite natural and he substantially corroborates the prosecution case. On being put a specific question in his cross-examination, P.W. 2 clearly stated that he has no enmity with the accused. There is nothing else available on record from which it can be inferred or presumed that the accused was implicated because of enmity.
Sarat Chandra Naik, Supervisor of Canara Bank was examined as P.W. 3 who recognised P.W. 8 and at his request one Bidyuta Rath was taking P.W. 8 to home on his motor cycle. The said Bidyut Rath was examined as P.W. 4 and he has clearly stated that he was taking P.W. 8 home on his motor cycle but on seeing the father of P.W. 8 on apolice jeep he handed over the boy to his custody. Both these witnesses have also stood the test of cross-examination. P.W. 5 Ganesh Singh clearly states that he saw the accused carrying P.W. 8 on his cycle and also confirmed that he had enquired from him as to where he was going but on receiving no reply he went away. He has stated that he did not know the name of the accused. He also states that on seeing P.W. 2 (the informant) he had informed him about seeing his son on the cycle of the accused and going in the direction of Tanarda village. P.W. 5 states that at that time P.W. 1 was also with him. He denies he is falsely implicating the accused because of personal differences. P.W. 10 is the Investigating Officer who has deposed about the investigation leading to filing of the charge-sheet. Thus on a over al1 consideration of the material on record, the contention of the learned counsel for the petitioner that the accused has been falsely implicated or that the conviction is based on a misleading or misappreciation of the evidence on record cannot be accepted.
5. It is so doubt true that while exercising the revisional power, the revision court can exercise all powers conferred upon a Court of appeal but it is equally true that while exercising the revisional jurisdiction, (he revisional Court does not act as a second appellate Court. It has to go through record in order to satisfy itself that the findings recorded by the courts below are warranted on the evidence of record. The revisional power is to be exercised to prevent gross and palpable failure of justice keeping in mind the fact that it should not be exercised in such a way as to give a right of appeal where such a right is excluded by the Code itself. They fact that the court exercising revisional power might have taken a different view on a re-appreciation of evidence is no ground for interference in a revision. Keeping in view the above principles, no ground for interference with the concurrent findings arrived at by the Courts below has been made out and accordingly no interference is called for. Petitioners conviction under Section 363, IPC is maintained. However, the facts and circumstances of the case do not warrant his conviction for an offence under Section 384/ 511, IPC of which he was acquitted by the trial Court but was held guilty by the appellate Court though the appeal was by the petitioner against his conviction and sentence under Section 368, IPC by the trial Court.
6. The prayer of the learned counsel for the petitioner for extending the benefit of the Probation of Offenders Act, or, for reducing the sentence cannot, under the facts and circumstances of the case, be accepted. The sentence of six months in this case cannot be said to be harsh or severe. Keeping in mind the age of the petitioner and other circumstances, the appellate Court reduced the sentence from R.I. for 5 years to R.I. for six months. No further reduction in the sentence awarded is called for in this case.
7. For the reasons aforesaid, the conviction and sentence under Section 363, IPC is affirmed and that under Section 384/511 is set aside. Subject to this, the petition stands dismissed. The bail bonds shall stand forfeited.