JUDGMENT 1. 1. This appeal is directed against the judgment dated 18.8.93 passed by the Additional Sessions Judge, Khetri, by which the learned Additional Sessions Judge convicted the accused appellant for the offences under Sections 364, 324 and 323 Indian Penal Code and sentenced him to undergo five years' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo three months' simple imprisonment for the offence under Section 364 Indian Penal Code; one year's rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine further to undergo one month's simple imprisonment for the offence Under Section 324 Indian Penal Code and three months' rigorous imprisonment and a fine of Rs. 50/- and in default of payment of fine further to undergo fifteen days' simple imprisonment for the offence Under section 323 Indian Penal Code. 2. Appellant Mohan was tried by the learned Additional Sessions Judge, Khetri, for the offences Under Sections 364, 324 and 323 Indian Penal Code for kidnapping Vipin Kumar (aged about 2-1 /2 years) Son of Shri Raj Kumar from village Pacheri Badi in Jhunjhunu district, for committing his murder, on 29.9.86 at 8.00 A.M. The father of Vipin Kumar was, at that time, at his shop while his mother had gone to fetch water. The parents and the other relatives of Vipin Kumar made a search for him but he was not traceable and, therefore, the report of the incident was lodged on 1.10.86 at Police Station, Buhana (district Jhunjhunu) by Kailash Chandra Gupta the uncle of missing boy Vipin Kumar. On 4.10.86, when all these persons were searching for the boy in the forest, the accused was found carrying Vipin Kumar near the hillock at a distance of four kilometres from village Narnol. The boy was recovered and the accused was arrested. After the recovery of the boy, the boy was medically examined by PW 7 Dr. Vidhya Dhar, who found twelve injuries on his person, out of which five injuries were caused by tooth-bite and the remaining seven injuries were simple in nature caused by some blunt object. After medical examination, the boy Vipin Kumar was handed over to his father Raj Kumar. The prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. After medical examination, the boy Vipin Kumar was handed over to his father Raj Kumar. The prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. It is against this judgment that the appellant has preferred this appeal. 3. It is contended by the learned counsel for the appellant that the prosecution has failed to prove the case against the accused-appellant beyond reasonable manner of doubt. Learned counsel for the appellant has challenged the judgment passed by the learned trial Court on various grounds including (i) that there was a delay of two days in lodging the report; (ii) the witnesses produced by the prosecution are interested and relative witnesses and their evidence does not inspire confidence; (iii) the ingredients of the offence Under section 364 Indian Penal Code are not made out as the accused appellant had no intention to cause the murder of Vipin Kumar; and (iv) the earlier report, which was lodged on 3.10.86, has been suppressed. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the learned trial Court. 4. I have considered the submissions made by the learned counsel for the parties. 5. Before dealing with the arguments advanced by the learned counsel for the parties, I would first like to consider the nature of the evidence produced by the prosecution in support of its case. PW 1 Raj Kumar is the father of Vipin Kumar, who has stated that on 29.9.86, at about 8.00 A.M., he had gone to his shop and his wife and children were at the home. His wife thereafter went to the well to fetch water and Vipin Kumar, who was aged about 21/2 years, was playing in the house. Vipin Kumar, at that time, was wearing green colour bushirt. When his father returned from the well after fetching the water, Vipin Kumar was found missing from the house. The search of the boy was made but he was not traceable. Thereafter he sent his elder brother Kailash to lodge the report at the Police Station, who went to the Police Station and lodged the report at the Police Station on 1.10.86. The search of the boy was made but he was not traceable. Thereafter he sent his elder brother Kailash to lodge the report at the Police Station, who went to the Police Station and lodged the report at the Police Station on 1.10.86. After about four days, when he, alongwith the police party etc, had gone in search of Vipin Kumar, at that time, at the distance of 4 kilometres from village Narnol, they saw the accused carrying Vipin Kumar in his lap and on seeing them the accused tried to run away after throwing the boy on the ground. The police party followed the accused and caught hold of him. PW 4 Smt. Nirmala is the mother of Vipin Kumar, who has stated that on the relevant day, she had gone to the well to fetch water leaving his son Vipin Kumar at the house and when she returned, Vipin Kumar was found missing. She informed her husband about the missing of Vipin Kumar. They made a search for the boy and her brother-in-law (Jeth) went to lodge the report at the Police Station and after lodging the report, the boy was recovered by the police. PW 5 Kailash is the elder brother of Raj Kumar and the uncle of Vipin Kumar. He has stated that Vipin Kumar is the son of his brother Raj Kumar and he was found missing on 29.9.86 and the report of missing of Vipin Kumar was lodged by him at the Police Station and the boy was recovered. The evidence of these three witnesses is sought to be corroborated by the evidence of PW 2 Amar Singh is running a tea stall in village Pacheri Badi and at whose tea stall, on 28.9.86 the accused came for taking the tea. At that time PW 3 Ramavatar was carrying a tape-recorder/cassette player and the accused wanted to purchase it on credit but Ramavatar refused to sell it at credit. PW 6 Om Prakash Puri was the then Station House Officer, Police Station, Buhana, before whom the FIR in the present case was recorded, he investigated the matter, recovered Vipin Kumar and after investigation present the challan. PW 7 Dr. PW 6 Om Prakash Puri was the then Station House Officer, Police Station, Buhana, before whom the FIR in the present case was recorded, he investigated the matter, recovered Vipin Kumar and after investigation present the challan. PW 7 Dr. Vidhyadhar was the Medical Officer, Government Hospital, Buhana, who medically examined Vipin Kumar on 4.10.86 and found twelve injuries on his person, out of which five were the tooth-bite injuries and the seven were the injuries caused by some blunt object and according to him, all these injuries were simple in nature. 6. The first contention, raised by the learned counsel for the appellant is that there is an inordinate delay in lodging the report, which has not been properly explained by the prosecution and the prosecution case, therefore, deserves to be thrown-away on this count alone. The boy was found missing on 29.9.86 at 8.00 A.M. Raj Kumar the father of Vipin Kumar alongwith other persons, made search for the boy for two days and when they could not trace out the boy then the report of the incident was lodged. They were thinking that the boy might have gone to somewhere in the village and somebody may see him and return the boy but as the boy could not be found for two days, then ultimately the report of the incident was lodged at the Police Station on 1.10.86. The prosecution has, therefore, explained the delay in lodging the report. The contention, raised by the learned counsel for the appellant, is, therefore, devoid of any force. 7. The second ground raised by the learned counsel for the appellant is that the witnesses produced by the prosecution are interested and relative witnesses and their evidence does not inspire confidence. The contention, raised by the learned counsel for the appellant is devoid of any force because PW 1 Raj Kumar (father), PW 4 Smt. Vimla (mother and PW 4 Kailash Chandra (uncle) made the search of the boy since 29.9.86 and they tried their best for his search and when the boy was not available/traceable for two days, then the report of the incident was lodged at the Police Station. The boy was recovered near the hillock at the distance of four kilometres from Narnol. The boy was recovered near the hillock at the distance of four kilometres from Narnol. They found the boy in the lap of the accused - appellant and on seeing them the accused threw the boy on the ground and tried to run away but he was apprehended and caught hold. These witnesses have stated what they had actually seen and have not falsely implicated the accused-appellant. Lengthy cross-examination has been conducted on these witnesses but nothing could be turned out from their cross-examination which could discredit their testimony. These witnesses are most reliable witnesses. Merely because they are related to the missing boy Vipin Kumar, their evidence cannot be thrown-away. From the evidence of these witnesses as well as from the evidence of PW 6 Om Prakash Puri, the then S.H.O. of the Police Station, the fact of missing of Vipin Kumar on 29.9.86 and his recovery from the possession of the accused-appellant, are proved beyond reasonable manner of doubt. 8. The prosecution has, therefore, been able to prove that Vipin Kumar S/o PW 1 Raj Kumar was kidnapped by the appellant from village Pacheri Badi from the house of his father Raj Kumar. The appellant is the perpetrator of the crime and the learned trial Court was right in holding that it was the accused who was responsible for this act. 9. The next question which requires consideration in the present, case is; what offence has been committed by the accused-appellant, whether he can be held guilty for the offence Under section 364 Indian Penal Code or for any other offence? For proving the offence Under section 364 Indian Penal Code, the prosecution has to prove that the kidnapper should put to person so kidnapped to the danger of murder. The necessary ingredients of the offence Under section 364 Indian Penal Code are that the abduction or kidnapping of the person is made with the view to murder him or to put him in the danger of being murdered. In the present case, these ingredients are missing. The boy was kidnapped on 29.9.86 and was alive till 4.10.86 when he was recovered. No evidence has been produced to show that the boy was, at any point of time, put in the danger of being murdered. In the present case, these ingredients are missing. The boy was kidnapped on 29.9.86 and was alive till 4.10.86 when he was recovered. No evidence has been produced to show that the boy was, at any point of time, put in the danger of being murdered. Of course, some injuries with teeth and simple abrasions were found on the person of the boy when he was recovered, but it has not been established by the prosecution from any evidence that the boy was so disposed of as to be put in the danger of murder. The ingredients of the offence Under section 364 Indian Penal Code are not made out and the learned trial Court was not justified in convicting and sentencing the accused-appellant for the offence Under section 364 Indian Penal Code ad the appellant deserves acquittal of this offence. However, the ingredients of the offence Under Section 365 Indian Penal Code are fully satisfied as the kidnapping of Vipin Kumar was made with and intent to wrongfully confine him and, therefore, the appellant deserves to be convicted for the offence Under section 365 Indian Penal Code. 10. So far as the conviction and sentence of the accused - appellant for the offence Under Sections 324 and 323 Indian Penal Code are concerned, they are fully established against the accused-appellant and the judgment passed by the learned trial Court, on these counts, does not require any interference. 11. In the result, the appeal, filed by accused-appellant Mohan, is partly allowed. He is acquitted of the offence Under section 364 Indian Penal Code but is convicted for the offence Under section 365 Indian Penal Code and is sentenced to the period of imprisonment already undergone (the accused has undergone three years, ten months and 24 days imprisonment) by him, and a fine of Rs. 1000/- and in default of payment of fine further to undergo two months' rigorous imprisonment. His conviction and sentences for the offences under Sections 324 and 323 Indian Penal Code are maintained. All the sentences shall run concurrent. The period of imprisonment undergone by the appellant during investigation, enquiry or trial shall be set of against the term of sentence awarded to him for the aforesaid offences.Appeal Partly Allowed. *******