D. K. TRIVEDI, J. The present criminal appeal is directed against the judgment and order dated 18-8-1979 passed by IV Additional Sessions Judge, Unnao convicting the appellants under Section 364, I. P. C. and sentencing each of them to Imprisonment for Life. 2. Initially, the accused-appellants were prosecuted under Sections 302/34, 201 and 364, I. P. C. and by the same judg ment the learned Sessions Judge acquitted the appellants under Sections 302/34 and 201, I. P. C. There are three appellants in this case. Initially there were four accused-persons including Maiku who died during trial and therefore, these three appellants have been convicted and prosecuted as mentioned above. 3. According to the prosecution case, Prakash (deceased) was the son of P. W. 1 Smt. Sarju Dei wife of Sheo Sagar resident of village Luli Purwa and Hamlet of Shuk-la Ganj, PS. Ganga Ghat, District Unnao. The accused-persons are also residents of the same village except accused Chhotey who resides in village Mansha Khera, PS. Ganga Ghat, District Unnao which is situated at a short distance from village Luli Purwa. According to the prosecution case, the incident took place on 10-1-1978 at about 6. 00 p. m. in the evening. It is said that two days before the date of occur rence, accused Ram Sarup alias Sarupe had brought a tin of liquor and had got that tin burried in the sand with the help of accused Maiku and deceased Prakash. On the next day at about 12. 00 oclock (noon) accused Ram Sarup alias Sarupe went for taking out that tin of Hquor from the sand but he did not find the same and on enquiry accused Maiku told him that Prakash (deceased) had removed that tin of liquor. On this, Ram Sarup alias Sarupe went to the house of Smt. Sarju Dei (P. W. l) at about noon and asked regarding where abouts of Prakash. She replied that she did not know as to where he (Prakash) had gone and then, Sarupe said that Maiku informed him that the liquor was removed by Prakash and he would teach him a les son for the same and would kill him. It is said that on 10-1- 1978, Prakash (deceased) had gone to see cinema show in the after-noon at about 2. It is said that on 10-1- 1978, Prakash (deceased) had gone to see cinema show in the after-noon at about 2. 30 p. m. Smt. Sarju Dei (P. W. 1) went to Cinema-Hall situated in Town Shuklagnaj and brought her son back at about 5. 00 p. m. At about 6. 00 p. m. , Sarupe again came at the door of Smt. Sarju Dei (P. W. 1) and said to Prakash that "maiku says that you have removed the tin of liquor". However, Prakash (deceased) denied the same and then an altercation took place between them. In the meantime accused Maiku, Pyarey and Chhotey arrived at the door of Smt. Sarju Dei (P. W. 1) and all the four accused started to beat Prakash (deceased) with slaps and on hearing the alarm raised by P. W. 1 Sarju Dei and Prakash (deceased) several persons reached there and saw the incident. At about 6. 00 p. m. after beating Prakash with slaps, accused Sarupe, Maiku, Pyarey and Chhotey took away Prakash towards north with them and at about 9. 00 p. m. the accused-persons came back in village Luli Purwa. As, Prakash did not return back to his house, therefore, Smt. Sarju Dei (P. W 1) enquired from Pyarey as to where they had left her son Prakash. On this enquiry, accused Pyarey threatened her (Smt. Sarju Dei) and asked her to run away. It is further alleged that Smt. Sarju Dei tried to trace her son Prakash here and there but she could not find him. Then, she went to PS. Ganga Ghat alongwith one Chaterjee and Laxmi Narain Mali on 11-1-1978 and lodged a report at 12. 35 on the same day. P. W. 7 Ram Shanker Srivastava prepared the chik report and registered the case. P. W. 8 S. I. Ali War is was entrusted with investigation of this case. He received the relevant G. D. entries near Saraswati Talkies, Shuk-laganj, on 11-1-1978 at about 1. 00 a. m. through constable Adya Prasad and after receiving the same, he immediately started the investigation of this case and recorded the statement of Smt. Sarju Dei (P. W. 1) near Saraswati Talkies. He further recorded the statements of the other witnesses and thereafter, he went to village Luli Purwa and Mansa Khera for arresting the accused-persons but they could not be traced out. He further recorded the statements of the other witnesses and thereafter, he went to village Luli Purwa and Mansa Khera for arresting the accused-persons but they could not be traced out. He again went to village Luli Purwa and recorded the statements of the other witnesses and prepared the site plan (Ext. Ka-8 ). On 12-1-1978 receiving an information by some informant, he ar rested accused Ram Sarup at about 6. 30 p. m. He recorded the statement of accused Ram Sarup who confessed his guilt and promised to show the place of murder of Prakash (deceased), the place where his face was burnt and the place there his dead body was burried. Thereafter, accused Ram Sarup alias Sarupe took S. I. Ali Waris (P. W. 8), police personnel and other wit nesses to village Luli Purwa and showed the place of murder of Prakash and the place where the face of deceased Prakash was burnt and thereafter, reached village Nathu Khera from where accused Ram Sarup took out the dead body of Prakash (deceased) from the sand.-The Investigat ing Officer thereafter, prepared memo Ext. Ka-3 of recovery of dead body of Prakash in presence of the witnesses. He took chappals of Prakash (deceased) in his custody and prepared memo Ext. 4. He also took the sample of blood stained and plain earth from the place, from where the dead body of the deceased was recovered and also prepared site-plan Ext. Ka-10. He also recovered the ash of patwar from the place where the place of the deceased was burnt. On 13-1-1978 at about 8 a. m. the Investigating Officer prepared the inquest report Ext. Ka-11 and other relevant papers for autopsy Ext. Ka-12 to 14 and sent the dead body of the deceased to mor tuary through constable Adya Prasad and Sunder Singh. The Investigating Officer thereafter, recorded the statements of the witnesses and after completing the inves tigation submitted the charge-sheet against the accused-persons. 4. P. W. 9 Dr. J. N. Bajpai, Medical Officer of District Hospital Unnao con ducted the autopsy on the dead body of deceased Prakash on 13-1-1978 at 4 p. m. He found the following ante-mortem in juries on his body: (1) There was bleeding from the nose. (2) Multiple reddish contusions on the entire face on both sides of face, front of neck and on both sides of chest on upper part. (2) Multiple reddish contusions on the entire face on both sides of face, front of neck and on both sides of chest on upper part. (3) Legature marks found on the front of neck, below the thyroid cartilage. The base of the furrow was soft and abrasions were found on the margins of legature mark. Subcutaneous tissue under the legature mark showed echymosis. There was also injury under the muscles on the mark. There was fracture of the larynx, trachea and hyoid bone shared fracture. Scratches and abrasions were found on the face and neck. The face was puffy and cyanosed conjunction was congested. Tongue was swol len. Brain was congested. The post-mortem report is Ext. Ka-16. 5. On internal examination, accord ing to the doctor the stomach of the deceased was empty. The small intestines were found empty and large intestine was found full faecal matter. According to the doctor the death of the deceased was caused by strangulation. 6. In support of its case the prosecu tion examined as many as nine witnesses, out of them P. W. 1 Smt. Sarju Dei, P. W. 2 Dori, P. W. 3 Bramha and P. W. 4 Laxmi Narain are the witnesses of fact. Out of four these eye-witnesses, P. W. 3 Bramha did not support the prosecution case and therefore, he was declared hostile in this case. P. W. 5 Mohd. Hanif proved the arrest of accused Ram Sarup alias Sarupe as well as recovery of the dead body of deceased Prakash on his pointing. P. W. 6 Rupan corroborated the statement of P. W. 5 Mohd. Hanif and proved the arrest of ac cused Sarupe as well as recovery of the dead body of deceased Prakash on his pointing. P. W. 7 Ram Shanker Srivastava Head Moharrir proved the F. I. R. as well as other G. D. entries. P. W. 8 S. I. Ali War is conducted the investigation in this case and after completing the investigation, he submitted the charge-sheet against the ac cused and P. W. 9 Dr. J. N. Bajpai conducted autopsy on the dead body of deceased Prakash and proved the post- mortem report EXt. Ka-16. 7. On the other hand, the accused-persons denied the prosecution case and stated that they have been falsely impli cated in this case due to enmity. 8. J. N. Bajpai conducted autopsy on the dead body of deceased Prakash and proved the post- mortem report EXt. Ka-16. 7. On the other hand, the accused-persons denied the prosecution case and stated that they have been falsely impli cated in this case due to enmity. 8. The learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecu tion has successfully proved the guilt of the accused-persons beyond reasonable doubt and therefore, the learned Sessions Judge convicted and sentenced the accused-per sons as mentioned above. The accused-ap pellants aggrieved by the said judgment and order, preferred the present criminal appeal through Sri J. N. Chaudhary, Advo cate. 9. We have heard the learned Counsel for the parties and have gone through the record. 10. The learned Counsel for the ap pellants contended that the learned Ses sions Judge after considering the tes timony of the eye-witnesses disbelieved the theory of murder as well as recovery of the dead body of deceased Prakash on the pointing of accused Ram Sarup alias Sarupe and acquitted the accused- persons under Sections 302/34 and 201, I. P. C. He further pointed out that while acquitting the accused-persons, the learned Sessions Judge disbelieved the theory of the prosecution that accused Ram Sarup was arrested or at that time he confessed his guilt and thereafter, the dead body of deceased Prakash was recovered on the pointing of accused Ram Sarup ; that this throws doubt on the genuineness of the investigation and keeping in mind the above mentioned circumstances, the learned Sessions Judge committed an error in convicting the accused-persons under Section 364, I. P. C. and in awarding a sentence of Imprisonment for Life. The learned Counsel for the appellants further pointed out that the story that the accused-appellants reached the house of deceased Prakash without any arm and thereafter, slapped him and took away Prakash (deceased) and killed aim as mentioned above is not believable. The learned Coun sel for the appellant further pointed out that P. W. 4 Laxmi Narain failed to point out the date on which the incident took place and he appears to be a pocket- wit ness of the police. He admitted that L. was accused in a case under Section 60, Excise Act. The learned Coun sel for the appellant further pointed out that P. W. 4 Laxmi Narain failed to point out the date on which the incident took place and he appears to be a pocket- wit ness of the police. He admitted that L. was accused in a case under Section 60, Excise Act. He also stated that he did not know as to who amongst the accused had threatened him at the time of kidnapping of Prakash (deceased ). Similarly, P. W. 2 Dori admits that daroga Ji interrogated him in the night and at that time he had not recorded his statement. He denied that some illicit liquor was recovered from his son (Ram Lai) and the police failed to prove that illicit liquor was recovered from the possession of Ram Lal. Similarly, the learned Counsel for the appellants further contended that the conduct of Smt. Sarju Dei (P. W. 1) is also not free from doubt and the same is unreliable as she did not lodge the report immediately after the incident and she waited up to night and finally she lodged the report at 12. 35 p. m. on the next after-noon. 11. However, we are unable to accept the contention of the learned Counsel for the appellants to extent that the testimony of the eye-witnesses is not reliable. 12. P. W. 1 Smt. Sarju Dei is the mother of deceased Prakash. Her presence on the spot cannot be disputed and she is most natural witness this incident. She consistently stated that her son Prakash was kidnapped by the accused-persons. Her statement further finds support from the statements of the two eye- witnesses namely; P. W. 2 Dori as well as P. W. 4 Laxmi Narain. The testimony of P. W 1 Smt. Sarju Dei cannot be discarded on the ground that she lodged a report after 12. 00 Noon. She has given an explanation to this effect that she was under the impression that her son Prakash will return back after some time. She clearly stated that she had no apprehension in her mind that her son Prakash will be killed by the accused-per sons. She made enquiry to this effect and thereafter, she tried to search out her son Prakash and thereafter, she lodged the report. 13. In our pardon, the explanation given by P. W. 1 Sml. She clearly stated that she had no apprehension in her mind that her son Prakash will be killed by the accused-per sons. She made enquiry to this effect and thereafter, she tried to search out her son Prakash and thereafter, she lodged the report. 13. In our pardon, the explanation given by P. W. 1 Sml. Sarju Dei is a natural statement and the same is acceptable. At about 6. 00 p. m. when the accused-persons took away Prakash (deceased) then, at that time she (Smt. Sarju Dei) was not aware of the fact that they will kill her son Prakash and in these circumstances, the delay in lodging the report, in our opinion, cannot be said to be fatal. The testimony of P. W. 1 Smt. Sarju Dei further proves the prosecu tion case to the extent that Prakash (deceased) was taken away on the said date by the accused-persons. 14. The next contention of the learned Counsel for the appellants is that no case under Section 364, I. P. C. is made out against the appellants because admit tedly at the time of kidnapping none of the accused-appellants had said that Prakash will be killed. As regards the question of killing of Prakash is concerned, the ac cused persons have already been acquitted and in these circumstances, it cannot be said that Prakash (deceased) was kid napped by the accused-persons for the purpose of his killing and therefore, in our opinion, the case shall not fall under Sec tion 364, I. P. C. , Section 364 I. P. C. provides that whoever kidnaps or abducts any per son in order that such person maybe mur dered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life but in the instant case as pointed out above, the evidence on the record shows that even at the time of kidnapping of Prakash none of the accused-persons said that Prakash (deceased) would be killed. Even Sml. Sarju Dei did not raise any allegation. Therefore, it cannot be said that Prakash (deceased) was kidnapped in order to kill him. Even Sml. Sarju Dei did not raise any allegation. Therefore, it cannot be said that Prakash (deceased) was kidnapped in order to kill him. No doubt, Prakash (deceased) was found murdered but the charge framed against the accused-persons under Section 302, I. P. C. could not be proved by the prosecution and therefore now it cannot be said that the accused persons kid napped Prakash (deceased) in order to kill him. 15. Therefore, in our opinion the case under Section 364, I. P. C. is not made out but in the instant case the offence falls under Section 365, I. P. C. As mentioned above, the theory of kidnapping of Prakash (deceased) by the accused-persons is proved but it cannot be said that Prakash (deceased) was kidnapped by the accused-persons in order to kill him and therefore, the instant case falls under Section 365, I. P. C. 16. Accordingly, the present criminal appeal is hereby partly allowed to the ex tent that the conviction and sentence awarded against the accused- appellants by the trial Court under Section 364, I. P. C, are hereby set aside. Accused-appellants Ram Sarup alias Sarupe Lodh, Pyarey and Chhotey are hereby convicted under Sec tion 365, I. P. C. and are sentenced to three years rigorous imprisonment. The aforesaid accused-appellants are on bail. They are directed to surrender themselves forthwith before the court concerned in order to serve out the aforesaid sentence. The Chief Judicial Magistrate, Unnao is directed to send the compliance report within six weeks from today. Appeal partly allowed. .