JUDGMENT 1. - This jail appeal has been filed against the judgment dated 25th February, 1991 passed by the learned Additional Sessions Judge, Rajsamand where by he found the appellant guilty for offence under Section 364 IPC and sentenced him to nine years' rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine, to further undergo three months' rigorous imprisonment. 2. The case projected from the prosecution evidence is that about a couple of days prior to the alleged incident, appellant Gopal had a altercation with his brother-in-law Nathuram at Jodhpur. It is alleged that on 9-4-89 at about 9.30 a.m., the appellant came to village Pipli, where Nathuram's minor son Hemraj, aged about 8 years was living with his uncle Chainraj. The appellant kidnapped him with the intention that he may be murdered or that he may be so disposed of as to put him in danger of being murdered. On the information of Smt. Tipu, the aunt (BUAA) and the sister-in-law (SALI) of the appellant, FIR Ex. P-1 was registered on 9-4-89 at 10.15 p.m. at police Station Devgarh. The accused was arrested on 18-7-89. He gave information Ex. P-4, Ex. P-5 and Ex. P-6 dated 20-7-89, 23-7-89 and 23-7-89 respectively under Section 27 of the Evidence Act, but in pursuance there of the kidnapped boy Hemraj or his dead body could not be recovered. After completion of the investigation, a charge-sheet was filed against the appellant in the Court of Judicial Magistrate, Devgarh, who in turn, committed the case to the Court of learned Additional Sessions Judge, Rajgarh. The appellant was charged for offence under Sections 364 and 365 IPC to which he pleaded not guilty. The prosecution examined as many as ten witnesses. The appellant in his plea recorded under Section 313 Cr. PC denied the circumstances appearing against him in the prosecution evidence and pleaded that Smt. Tipu had falsely implicated him in this case because he had turned down her offer to accept her as her wife. However, he did not adduce any evidence in his defence. The learned Sessions Judge, after trial found the appellant guilty for offence under Section 364 IPC and sentenced him in the manner detailed ad-ultra. Hence, this appeal. 3. However, he did not adduce any evidence in his defence. The learned Sessions Judge, after trial found the appellant guilty for offence under Section 364 IPC and sentenced him in the manner detailed ad-ultra. Hence, this appeal. 3. I have heard the learned Amicus curiae and the learned Public Prosecutor at length and have carefully perused the record of the lower Court in extenso. 4. Mr. Suresh Kumbhat, learned Amicus Curiae, appearing for the appellant, has strenuously contended that there is no evidence to establish that the accused had the intention at the time of alleged kidnapping of Hemraj that he would be murdered or would be so disposed of as to put him in danger of being murdered, and as such the motive for the alleged offence was missing. According to him, in such circumstances, offence under Section 364 IPC was not at all made out against the appellant. He has cited Upendra Nath v. Emperor (AIR 1940 Cal. 561.) . 5. The learned Public Prosecutor has reiterated the reasonings given by the learned trial Judge. 6. Ku. Bali (PW 2), who was aged about 11 years at the time of alleged occurrence, has deposed that the appellant had taken her along with Hemraj near a hillock; that he had tied the mouth of Hemraj by one Odhana (cloth) and took him on the other side of the hillock; that after some time the appellant came back along with that Odhana and told her that Hemraj had been taken away by other persons; and that when she started weeping, the appellant had threatened to kill her. Her statement corroborated by the statements of other prosecution witnesses, 7. In my considered opinion, the learned Addl. Sessions Judge has discussed, analysed and evaluated the prosecution evidence in right perspective and correctly held that the appellant had the intention at the time of kidnapping Hemraj that the latter would be murdered or would be so disposed of as to put him in danger of being murdered. To my mind, the prosecution by adducing clear, cogent and convincing evidence, has well established and proved the offence under Section 364 IPC against the appellant beyond reasonable doubt. The facts of Upendra Nath's case (supra) are distinguishable and as such that case renders little assistance to the appellant. 8. Mr. To my mind, the prosecution by adducing clear, cogent and convincing evidence, has well established and proved the offence under Section 364 IPC against the appellant beyond reasonable doubt. The facts of Upendra Nath's case (supra) are distinguishable and as such that case renders little assistance to the appellant. 8. Mr. Kumbhat then argued that the sentence passed against the appellant is excessive and that the appellant has been under detention since 18-7-89 i.e. for a period of more than two years and seven months. He has, therefore, prayed that the quantum of sentence inflicted on the appellant by the learned Additional Sessions Judge be reduced to the period of detention already undergone by him. 9. The learned Public Prosecutor has vehemently contended that since the appellant has committed a heinous offence; and that neither the kidnapped boy, Hemraj, nor his dead body has been recovered, the sentence passed by the learned Additional Sessions Judge is not excessive and disproportionate. 10. I have given my thougtful consideration on this aspect. The appellant was the uncle (Phupha) of the kidnapped boy, Hemraj. The age of the appellant is about 30 years having a wife and children. It cannot be conclusively held that Hemraj has been murdered because his dead body has not been recovered. Hence, keeping in view all the relevant facts and circumstances of this case, to my mind, a sentence of five years rigorous imprisonment and a fine of Rs. 200/- will suffice to meet the ends of justice. 11. I, accordingly partly accept this appeal and while maintaining the conviction of appellant Gopal for the offence under Section 364 IPC. 1 reduce his sentence from nine years' rigorous imprisonment to five years' rigorous imprisonment and his fine from Rs. 500/- (Rs. five hundred) to Rs. 200/- (Rs. two hundred). In default of payment of fine, the appellant shall further undergo two months' rigorous imprisonment.Appeal partly allowed. *******