Ramesh Sinha, J. The present appeal has been filed against the judgment and order dated 4.9.1981 passed by Ivth Additional Sessions Judge, Bijnor in S.T. No. 121 of 1980 convicting the appellants to a sentence of four years rigorous imprisonment under Section 364 I.P.C. with a fine of Rs. 500/- or six months in default and alternatively to a sentence of four years rigorous imprisonment under Section 365 I.P.C. and Rs. 500/- fine or six months in default. 2. Appellant nos. 2 and 3, namely, Ram Niwas and Ram Charan are reported to have expired and the appeal on their behalf has already been abated on 19.2.2007. 3. Heard Sri P.N. Mishra, learned Senior Advocate assisted by Sri Apul Mishra, learned counsel for the appellants and Sri Nikhil Chaturvedi, learned A.G.A. for the State. 4. The prosecution story in brief is that about 2 years before the occurrence Harphool Singh husband of Smt. Ram Kali was murdered and Ant Ram, Ram Niwas and others were accused of that murder. The accused were inimical to Smt. Ram Kali on account of which they used to harass her. On 28.11.1978, Gopali, Ram Charan, Ram Niwas and 2 other persons engaged a tempo No. USN 4758 at Seohara with the help of Lalloo. The tempo was engaged at Rs. 150 for being taken to village Galla Kheri, the village of the victim and from there to Bhikampur in P.S. Chhajlait Distt. Moradabad. It was represented to Munshi Irfan Ali of the truck Union that the daughter-in-law has to be brought from Galla Kheri to Bhikampur. Irfan Ali had booked the tempo foresaid drived by Mohd. Kazim PW 6 and had made an entry in the register maintained for that purpose. Gopali, Ram Charan, Ram Niwas and two other persons took the tempo upto the culvert of Karula river at some distance from Galla Kheri. Due to water logging on the way the tempo could be taken upto that spot with great difficulty. Mohd. Kazim drove the tempo upto that spot with great reluctance. After reaching Karula at about 5:45 p.m. two of the occupants stayed there while the rest went to village Galla kheri representing that they would be bringing the daughter-in-law presently. 5. Due to water logging on the way the tempo could be taken upto that spot with great difficulty. Mohd. Kazim drove the tempo upto that spot with great reluctance. After reaching Karula at about 5:45 p.m. two of the occupants stayed there while the rest went to village Galla kheri representing that they would be bringing the daughter-in-law presently. 5. Ant Ram and Ram Charan, Ram Niwas, Gopali and 2-3 other persons reached the house of Smt. Ram Kali at about 7 p.m. Smt. Ram Kali was preparing meals at the door frame of her room. Her sons Samarpal PW 1, Brahmpal PW 5 and Dharampal were sitting by her side. A three months old daughter of Ram Kali was on her lap. Ant Ram and others uttered that Ram Kali had harassed them separately. They lifted her with the child on her lap and carried her forcibly through the cane field. It had become dark when they reached the tempo along with Ram Kali. She was put in the tempo. Her face was covered with the sid of her Dhoti. In the morning of 29.11.1978 Samarpal and Brahmpal went to village Sadapahal and wife Shyam Singh, their Mausa by relationship. They narrated the occurrence to him. He took them to P.S. Seohara at 3:15 p.m. on the same day. Samarpal lodged F.I.R., Ex. Ka.1. against Ant Ram, Ram Niwas and Ram Chandra and unknown persons was registered at Rapat No. 30 (Copy of Ex. Ka.10). The investigation was taken up by S.I. Sri Pawav Singh. He reached at the place of the occurrence on 30.11.1978 and prepared site-plan Ex. Ka.4. 6. On the other hand, she was taken in the tempo upto the road opposite Bhikampur. There all the occupants of the tempo alighted from the tempo and proceeded on foot to Bhikampur Faridpur. They stayed there on that night. The next morning the accused took her to another village. From that village Ram Charan and Gopali accused and one Chenna took her in a taxi to Sehaspur bus station on 3.12.1978. The accused did not allow Smt. Ram Kali to utter a word. At the bus station of Sehaspur she was spotted at 6 p.m. by the I.O. who had already visited the place to which she had been taken in the meantime. The accused did not allow Smt. Ram Kali to utter a word. At the bus station of Sehaspur she was spotted at 6 p.m. by the I.O. who had already visited the place to which she had been taken in the meantime. The I.O. with the help and in the presence of witnesses Mukhtar Ahmad and Qudrat Ullah Khan PW 7 arrested Gopali and Ram Charan accused and recovered Smt. Ram Kal;i from them on that spot. Gopali was made bapardah since he was unknown to the witnesses by that time. Memo Ex. Ka.3 of this recovery was prepared. Site plan Ex. Ka. 6 of the place of the recovery was prepared the same day. On the same day the register written from 1.11.1978 to 30.11.978 by Munshi Irfan Ali of the Tempo Union was taken into possession and returned to his custody vide memo Ex. Ka.5. Gopali and Ram Charan and Smt. Ram Kali were taken to the police station and lodged in the lock-up at 9:20 p.m. with reference to Rapat No. 41 (Copy Ex. Ka. 7). 7. The tempo itself had been taken into possession and released only on 10.12.1978 against memo Ex. Ka.2 in pursuance of the orders of the Magistrate. 8. A search of the houses of Ant. Ram and Ram Niwas was made on 10.12.1978 but they could not be found out memo Ex. Ka.11 was prepared regarding that search. 9. Gopali and Channa were put to identification on 15.1.1979 in the presence of the Magistrate. Gopali was correctly identified by Samarpal, Brahmpal and Chhuttan PW. 3. Memo Ex. Ka-13 was prepared. After the conclusion of the investigation charge-sheets Ex. Ka.8 & Ka.9 were submitted. 10. At the trial the prosecution examined Samarpal PW.1, Ramkali PW. 2, Chhotey PW.3, Mukta Ram PW.4 and Brahmpal PW.5 as the eye witnesses to the occurrence. Besides them the driver of the tempo Mohd. Kazim was examined as PW.6, Qudratullah in whose presence Ram Kali was recovered, was examined as PW.7, constable Jaswant Singh and Ram Lal and had been in Parah duty in the night of 3.12.1978 and in the morning of 4.12.1978 were examined as Pws 8 & 9, Lallu who had arranged the tempo was examined as PW 10 and Pawan Singh SI, who had conducted investigation as PW 11. 11. 11. The evidence on the record establishes beyond any shadow of doubt that Smt. Ram Kali was abducted by the four accused from her house at about 7 p.m. on 28.11.1978. Samrapal, Ram Kali, Chhotey Mukta Ram and Brahmpal have stated in definite terms that Smt. Ram Kali had been abducted as is allowed by the prosecution. Samarpal stated that Ant Ram, Ram Niwas, Ram Charan and 2-3 other persons had abducted Smt. Ram Kali. Ram Kali has stated that she was abducted by Ant Ram, Ram Charan, Ram Niwas, Gopali, Channa and 1-2 other persons. P.W. 5 Brahmpal stated that Ant. Ram, Ram Charan, Gopali, Ram Niwas and 3-4 persons abducted Smt. Ram Kali. P.W.3 Chhotey and P.W.4 Mukta Ram Stated that Ram Niwas, Ram Charan, Ant Ram and several other persons had abducted Smt. Ram Kali. According to them the culprits had lifted her bodily and had taken her towards north through the standing crop. PW 6 Mohd. Kazim is the driver of the tempo which is alleged to have been used by the culprits for purpose of abducting Smt. Ram Kali. According to him Ram Niwas, Ram Charan, Gopali and several other persons had hired his tempo for being taken to Galla Kheri in order to take the daughter-in-law from Galla Kheri to Bhikampur in P.S. Chhajlait. He stated that Ram Charan, Ram Niwas and Gopali travelled in his tempo from Seohara to the culvert of river Karula and from there to road opposite Bhikampur. According to him Ant Ram could be one of the two persons who had come from the village along with the woman and the persons including the other three accused, who had gone to Galla Kheri to fetch the woman. He, however, stated that Ant. Ram did not travel in his tempo either upto the culvert or from the culvert to Bhikampur. According to PW 7 Qudratullah, Ram Kali was recovered at the bus of Sehaspur from the possession of Gopali and Ram Charan accused at about 6 p.m. PW11 Pawan Singh has also deposed to the same effect. All this evidence if reliable clearly connects the accused with the transaction of abduction of Smt. Ram Kali. To test the veracity of these witnesses their corroboration from independent circumstances would have to be searched for. According to PW-6 Mohd. All this evidence if reliable clearly connects the accused with the transaction of abduction of Smt. Ram Kali. To test the veracity of these witnesses their corroboration from independent circumstances would have to be searched for. According to PW-6 Mohd. Kazim he had been told by Munshi Irfan Ali of the tempo Union in the evening of 28.11.1978 that his tempo had been booked for taking the woman from Galla Kheri to Bhikampur and on his queries Munshi Irfan Ali had told him that the booking was made on the recommendation of Lalloo PW 10 and Rs. 50 had been paid in advance. Mohd. Kazim further stated that the accused excluding Ant Ram along with several other persons had travelled in his tempo from Seohara to the culvert of Karula river. He further stated that the Rasta was in a very bad condition and, therefore, it was with very great difficulty that he could reach at the Karula culvert at about 5:45 p.m. According to him he had started from Seohara at about 4 :30 p.m. He further stated that two of the occupants had stayed with him while the rest of the occupants had gone to Galla Kheri representing it that they were going to fetch to their daughter-in-law. He went on to say that when they did not return for quite some time and he grumbled one of the two persons who had stayed back went to Galla Kheri and returned with the information the daughter-in-law was being raided. He stated that after 45 minutes a woman with her face covered with her Dhote Pallu and a child on her lap came to the tempo; that the accused and the other persons were walking behind her. He further stated that the persons coming from the village returned while those who had gone from Seohara sat in the tempo and asked him to move. He also stated that he put on the light of the tempo and proceeded towards Bhikampur through a passage selected by the occupants of the tempo. He also said that the Rasta was in a very bad condition and he could drive the tempo with great difficulty. According to him after driving for about 4 km. He reached at the river where the woman washed her child who has passed stool in the meantime. He also said that the Rasta was in a very bad condition and he could drive the tempo with great difficulty. According to him after driving for about 4 km. He reached at the river where the woman washed her child who has passed stool in the meantime. From that spot he reached Chhaglait police station where the police on convey duty noted the number of his tempo. According to him after driving for about 33 km. in all he reached the pacca road opposite Bhikampur and the occupants including the women left his tempo there that he was paid Rs. 100/- as the remaining fare on that spot. According to his statement two days after the S.I. had met him and had seized his tempo. He stated that he was only then heard that the woman had been abducted. He explained that before it he had no suspicion in this regard. He also informed that the tempo was released on 10th of December when the Magistrate had issued orders for its release. No motives were imputed to Mohd. Kazim for false deposition. PW 10 Lallu stated that on the request of Gajram who is Sala of his Sala and who was accompanied by several persons to Galla Kheri he had recommended Munshi Irfan to book a tempo for them. He told that Gopali accused who was known to him was also amongst those persons. According to him after making the recommendation he had left for the factory. PW 11 Pawan Singh S.I. stated that he had taken into possession the register maintained at the Tempo Union by Munshi Irfan during the month of November, 1978 and had found the entry in respect of the tempo No. USN 4758 therein. He stated that the register was returned to the custody of Munshi Irfan and memo Ex.Ka-5 was prepared. Munshi Irfan Ali was not produced. The register also could not be produced in the court. But the circumstance that the tempo was seized on 1.12.1978 and the circumstance that it was plied from Seohara make the evidence that the register was taken into possession because it contained an entry regarding the tempo in question is reliable. Munshi Irfan Ali was not produced. The register also could not be produced in the court. But the circumstance that the tempo was seized on 1.12.1978 and the circumstance that it was plied from Seohara make the evidence that the register was taken into possession because it contained an entry regarding the tempo in question is reliable. Thus the entry of the tempo by the police on convey duty at Chhaglait and the entry of booking of the tempo in the register as well as the seizer of the tempo are independent circumstances which support the statement of Mohd. Kazim PW 6. There is no allegation that Lallu PW 10. who also deposed about the booking of the tempo is in anyway interested in false deposing against Gopali. His evidence also corroborates Mohd. Kazim PW 6. There is, therefore no reason to think that Mohd. Kazim PW6 has given false evidence. His evidence prove the circumstances that the accused excluding Ant Ram had hired the tempo at Seohara which is about 8 Km. away from Galla Kheri according to PW 6 Mohd. Kazim that the accused excluding Ant Ram and along with some other persons had travelled in the tempo to the culvert of Karula river; that they had gone from the culvert to village Galla Kheri; that they had returned to the tempo with a woman after about 1-1/2 hour; that they had taken the woman to the road opposite Bhikampur. It would be seen that these proved circumstances corroborative PW 2 Smt. Ram Kali with material particulars. It would be seen that these proved circumstances corroborative PW 2 Smt. Ram Kali with material particulars. According to her, she was abducted at about 7 PM from her house in village Galla Kheri by Ant Ram, Ram Charan, Ram Niwas, Gopali and Channa and 1-2 other persons; that she was lifted and carried to the tempo at the culvert of river Karula; that she was taken from the culvert to the road opposite Bhikampur where the tempo was left; that she was taken to Bhikampur and from there to Faridpur; that she was made to stay at Faridpur in the night; that from Faridpur she was taken to another village that from that village she was taken to Tagala; that from Tagala, Ram Charan, Gopali and Channa took her in a taxi to Sehaspur bus station; that her face was covered with her Dhoti and she was not allowed to speak; that at the bus station of Sehaspur the police had arrested Ram Charan and Gopali and had recovered her from them. As regards her statement regarding her being taken to the tempo at the culvert of Karula river and in the tempo from Karula river to the road opposite Bhikampur she is fully corroborated by the evidence of Mohd. Kazim PW 6. She is also consistent with Mohd. Kazim as regards an important incident on the way. The other part of her deposition that she was abducted from her house by the accused and other persons also becomes reliable for this reason. There is no suggestion and no apparent reason that she could go with the accused at the material time of her own volition. PW 1 Samarpal and PW 5 Brahmpal who are her sons have stated that at about 7 PM when she was cooking meals near the door-frame of her room and they along with Brahmpal from sitting by her side; that the accused and several other persons had come and carried her away. No doubt, they are not consistent as regards the exact spot from where she was abducted. In the FIR Samarpal had mentioned that she was cooking meal inside Kothari. In the evidence of PW 1 Samarpal and PW 5 Brahmpal is the stated outside the Kotha near its door frame. This discrepancy is because mis-statement in the FIR. It is more probable that she was cooking outside the Kotha. In the FIR Samarpal had mentioned that she was cooking meal inside Kothari. In the evidence of PW 1 Samarpal and PW 5 Brahmpal is the stated outside the Kotha near its door frame. This discrepancy is because mis-statement in the FIR. It is more probable that she was cooking outside the Kotha. The I.O. has also shown the spot from where she was picked up near the frame of the room inside the Angan. Obviously this must be on the information gathered by him during investigation. The FIR has mentioned that the spot as inside the room. This circumstance also shows that the investigation was not cursory. Chhotey PW 3 has also stated that on hearing the alarm he came to the place of the occurrence and saw Ram Niwas, Ram Charan, Ant Ram and several other persons going away. According to him alarm was being raised ahead of them. Muktey Ram PW 4 who is the brother of Chhotey stated that with the help of the torches Chhotey and he had seen Ant Ram, Ram Charan, Ram Niwas and few others taking away Smt. Ram Kali. According to the evidence the house of Muktey Ram is opposite the house of Ram Kali and in between is the Sehan of Ram Kali. The house of Chuttan is opposite the house of Muktey Ram and in between the two houses is their Sehan. The doors of the house of Muktey Ram and Chhuttan, however, do not face the house of Ram Kali. It could take Muktey and Chhuttan a couple of minutes to come out after hearing the alarm and see the occurrence. It is therefore, highly probable that they would reach at the spot before the culprits had left. Muktey Ram had fully supported the prosecution case but Chhotey has tried to support the defence here and there. He stated that he had no light while Muktey Ram stated that Chhotey had also a torch. Chhotey also stated that he knew Gopali from before but he was a witness to identification of Gopali. Chhotey was a co-accused along with Ant Ram in the muder of Harphool the husband of Smt. Ram Kali. He stated that he had no light while Muktey Ram stated that Chhotey had also a torch. Chhotey also stated that he knew Gopali from before but he was a witness to identification of Gopali. Chhotey was a co-accused along with Ant Ram in the muder of Harphool the husband of Smt. Ram Kali. It is, therefore, least likely that he would depose in support of the prosecution version to any extent unless that were the truth.It is, thefore, established that Samarpal PW 1, Ram Kali PW 2, Muktey Ram PW 4 and Brahmpal PW 5 were the eye-witnesses to the occurrence and they have given a truthful version of abduction of Ram Kali. The evidence of Mohd. Kazim PW-6 corroborates these other witnesses as well as PW-2 Smt. Ram Kali. 12. The last part of the transaction was the recovery of Smt. Ram Kali from Gopali, Ram Charan and Gopali. Ram Kali PW 2 has stated it. So have Qudratullah PW 7 and Pawan Singh PW-11 said it. There is no reason as to why Qudrat Ullah would depose falsely about the recovery of Smt. Ram Kali from Gopali and Ram Charan at the bus station of Sehaspur. The memo of recovery of Ex. Ka-3 also corroborates them. The copy of .G.D. No. 41 which was written at 9:20 p.m. on 3rd December, 1978 also corroborates these witnesses as to the arrest and recovery. The copy of G.D. is Ex. Ka.7. 13. As regards Gopali the evidence contained in the statements of Samarpal PW-1, Brahmpal PW-5, Ram Kali PW-2 and Mohd. Kazim PW-6 is quite consistent. All of them have deposed about the participation in the abduction by Gopali. PW-3Chhotey, however, stated that he knew Gopali from before. He was non-committal about the participation in the transaction by Gopali. As has been pointed out earlier Chhotey has tried to exculpate Gopali. Gopali was arrested as has been mentioned on 3.12.1978 and was made Bapardah. According to the evidence of the S.I. P.W. 11 and the constable PWs 8 and 9 he was kept Barapdah till he was lodged in the jail. He was put to test identification in the District Jail, Bijnor on 15.1.1979. He was correctly identified by Samarpal, Brahmpal and Chhotey (Chhuttan). There is no evidence that Samarpal or Brahmpal knew him from before. He was put to test identification in the District Jail, Bijnor on 15.1.1979. He was correctly identified by Samarpal, Brahmpal and Chhotey (Chhuttan). There is no evidence that Samarpal or Brahmpal knew him from before. There is also no evidence that they were in a position to see him before he was committed to jail or thereafter before he was put to identification. The test identification evidence contained in the memo Ex. Ka.13 is, therefore, very reliable. 14. Sri P.N. Misra, learned Senior Advocate appearing on behalf of the appellants submits that from the entire evidence of the prosecution witnesses, if taken into consideration then too against appellant nos. 1 and 4, there is no evidence to show that they had abducted Smt. Ram Kali for murdering her, hence there conviction under Section 364 is bad in the eyes of law and be set aside and the offence if any, may fall under Section 365 I.P.C. for which an alternative charge was framed by the trial court under Section 365 I.P.C. against the appellants for which they were tried by the trial court and were also convicted in alternative. He has further drawn the attention of the Court towards the fard recovery memo dated 3.12.1978 Ex. Ka. 3 which shows that the abductee Smt. Ram Kali was recovered from a bus stand which is public place along with accused. He submitted that had the accused any intention for abducting the victim for murder or put in danger for being murdered then the accused would have murdered her in some other place after being abducted from her house and not brought to a public place such as bus stand which would attract the attention of the public or any other person. 15. Learned A.G.A. has tried to justify the judgment and order passed by the trial court but could not dispute the fact that as argued by learned counsel for the appellants so far it relates to their conviction under Section 364 I.P.C. 16. Considered the submissions advanced by learned counsel for the parties and perused the impugned judgment and order as well as material on record. 17. From a perusal of the evidence on record, it is evident that so far as the conviction of appellant nos. Considered the submissions advanced by learned counsel for the parties and perused the impugned judgment and order as well as material on record. 17. From a perusal of the evidence on record, it is evident that so far as the conviction of appellant nos. 1 and 4 under Section 364 I.P.C. are concerned, there is no evidence to show that they had abducted Smt. Ram Kali for being murdered or put to her in danger of being murdered, hence their conviction in the said offence is not sustainable in the eyes of law. Accordingly, their conviction under Section 364 I.P.C. is hereby set aside. So far as the conviction and sentence of four years of the appellants by the trial court under Section 365 I.P.C. is hereby confirmed as the learned counsel for the appellants have failed to show from the evidence of P.W.1, Samarpal, informant and P.W.2 Smt. Ram Kali (abductee/victim) P.W.3 Chhotey neighbour, P.W. 4 Mukta Ram, who are independent witnesses of the occurrence and other prosecution witnesses any infirmity in their evidence which may discard their testimony. 18. The learned counsel for the appellants lastly submitted that the appellant no.1 Ant Ram is aged about 53 years and he was real brother of the first husband of the abductee (Harphool Singh)and due to some dispute between them with regard to agricultural land he has been falsely implicated in the present case. So far as appellant no.4 Gopali is concerned, he is aged about 95 years. He further submits that the appellant no.1 Ant Ram has already settled with his family and appellant no.4 Gopali is at the fag end of his life and to send them to jail after 35 years when the incident took place, it would be too harsh and further their families would be put to great hardships. The appellant nos.1 and 4 had been already in jail for a period of about a month during the pendency of trial and after their conviction, hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as enhancement of the sentence. 19. The appellant nos.1 and 4 had been already in jail for a period of about a month during the pendency of trial and after their conviction, hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as enhancement of the sentence. 19. Considering the argument of learned counsel for the appellants and looking to the position of the appellant no.1 and age of appellant 4, namely, Ant Ram and Gopali aged about 53 years and 95 years and taking into account that the incident is 35 years old and the appeal has come up for hearing after 32 years, it is directed that rest of the sentence of the appellants converted into fine of Rs. 40,000/- out of which Rs. 30,000/- shall be deposited by the appellant no.1, namely, Ant Ram and Rs. 10,000/- shall be deposited by appellant no.4, namely, Gopali in the Court of C.J.M. Binor within two months from today. Out of which, Rs. 35,000/- shall be paid to the abductee Smt. Ram Kali, if alive, or her legal heirs, if any and Rs. 5,000/- shall go to the State. 20. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by the trial court for the offence under Section 365 I.P.C. to undergo four years R.I. 21. In view of the above, the appeal is partly allowed. 22. Office is directed to send a certified copy of this order to CJM , Bijnor for its compliance. ____________