JUDGMENT Hon’ble Anil Kumar Sharma, J.—This appeal arises out of judgment and order dated 21.11.1987 passed by Sri Udhau Singh, Additional Sessions Judge (Special Judge), Bareilly in S.T. No. 520 of 1985, State v. Munua @ Bharat Narain Singh and others, whereby accused Chhutiya, Shambhoo Singh @ Shyampal Singh, Sobran Singh and Dhunni Singh have been convicted under Section 147 IPC and sentenced to undergo six months’ R.I. Accused Munua @ Bharat Narain Singh, Ram Murti and Nanhey Singh have been found guilty for the offence punishable under Section 148 IPC and have been sentenced to undergo one year’ R.I. All the accused persons have been further found guilty for the offences punishable under Sections 364, 325/149 and 323/149 IPC and each have been sentenced to undergo two years’ R.I., one year’ R.I. and six months’ R.I. respectively. 2. On 31.20.2014 during the course of argument, the Court has passed following order : “After argument for sometime, learned counsel for the appellants did not press the appeal on merits. He has simply prayed that the lenient view in the matter of quantum of sentence be taken on the ground that the incident took place more than 30 years ago, now two accused namely, Munna @ Bharat Narain Singh and Sobaran Singh are aged about 65 and 62 years respectively, the other accused-appellants Dhunni Singh @ Rati Bhan Singh is 59 years old, Ram Murti and Nanhey Singh are aged about 50 and 54 years respectively and appellants Chhutiya and Shambhoo Singh @ Shyamlal Singh are aged about 49 and 48 years respectively. He prays that the Court may consider to substitute the substantive sentence of imprisonment already undergone by the accused-appellants and in that event, adequate fine may be imposed, which would not be treated as enhancement in the sentence. 3. In order to appreciate the argument regarding quantum of sentence, it would be necessary to examine facts of the case and evidence adduced by the prosecution in support of the charges. 4. On 11.2.1984 at about 2 a.m., Smt. Gurmeet Kaur wife of Gurmej Singh, resident of Village - Dandia Sitawra, P.S. Bhuta, District - Bareilly lodged an oral report in P. S. Bhuta stating that her husband had hired tractor trolley of accused Munua for transporting paddy for sale to Bareilly market. 4. On 11.2.1984 at about 2 a.m., Smt. Gurmeet Kaur wife of Gurmej Singh, resident of Village - Dandia Sitawra, P.S. Bhuta, District - Bareilly lodged an oral report in P. S. Bhuta stating that her husband had hired tractor trolley of accused Munua for transporting paddy for sale to Bareilly market. The tractor driver Chhutiya and Ram Murti had accompanied Gurmej Singh to Bareilly where they had scuffle over payment of hire charges of the tractor. Both employees of accused Munua extended threat to him. It was alleged in the report that the same day at about 4:30 p.m., the husband of the complainant returned home and 15 minutes thereafter all the accused persons arrived at her house in a tractor. Accused Munua @ Bharat Narain Singh exclaimed that he was an outsider and should not struggle with Thakurs of the locality and thereafter all the accused started beating him with lathi. The complainant was also beaten with kicks and fists when she intervened in the scuffle. Witnesses Daya Singh and Singhara Singh on hearing the noise arrived at the scene of occurrence, but they could not proceed further as they were scared because the accused persons had fire arms in their hands and thereafter accused persons forcibly took away the husband of the complainant in order to kill him in the tractor trolley to Village- Bidhauli. It was further reported that at about 8:30 p.m. the same evening, the husband of the complainant returned back with injuries on his body. The case was registered and investigation was undertaken by the police. The injured were sent to District Hospital for medical examination where they were examined at 5:30 a.m. on 11.2.1984 by Dr. S.P. Goel, who had found following injuries on the person of the injured. Injuries of Gurmej Singh 1. Lacerated wound 1 cm x 0.2 cm x bones deep over chin of right tibia 12 cm below knee joint. There is swelling around wound extending from knee joint to middle of leg. Tenderness present. Kept under observation- Advised X-ray. 2. Traumatic swelling 6 cm x 5 cm over left knee joint Tenderness present. Kept under observation. Advised. 3. Contusion 6 cm x 2 cm over left thigh. 4. Abraded contused swelling 8 cm x 4 cm over the scapular region. Tenderness present. Kept under observation. Advised X-ray. 5. Tenderness present. Kept under observation- Advised X-ray. 2. Traumatic swelling 6 cm x 5 cm over left knee joint Tenderness present. Kept under observation. Advised. 3. Contusion 6 cm x 2 cm over left thigh. 4. Abraded contused swelling 8 cm x 4 cm over the scapular region. Tenderness present. Kept under observation. Advised X-ray. 5. Contusion two in number of 6 cm x 2 cm and 5 cm x 2cm over left arm on lateral surface. 6. Contusion 5 cm x 2.4 cm over left side back 21 cm below injury No. 4. 7. Contusion 7 cm x 1.5 cm on right arm- lateral surface. 8. Contusion 7 cm x 1.5 cm on right iliac crest region. 9. Injuries No. 1, 2 and 4 were kept under observation. X-ray was advised. Injury Nos. 3, 5, 6 & 7 and 8 were simple. All injuries were caused by blunt object and were fresh. Injuries of Smt. Gurmeet Kaur 1 Lacerated wound 6 cm x 0.4 cm over top of skull, 10 cm above just left ear at 12 O’clock position. Kept under observation - advised X-ray 2. Contusion 3 cm x 1.5 cm over left shoulder region 3. Traumatic contused swelling over dorsum of right hand extending from middle of hand over 2nd and 3rd carpet bone to middle phalnyx of index and middle finger. Tenderness present. Kept under observation. Advised X-ray. Injury No. 1 and 3 were kept under observation. Advised X-ray. Injury No. 2 is simple. All injuries were caused by blunt object and fresh in duration”. 5. On X-ray of Gurmej Singh, injury No. 3 was found grievous as he has sustained fracture of patella bone in left knee and no abnormality was detected in the skull X-ray of Gurmeet Kaur. The investigation culminated into charge-sheet against the accused persons. 6. After committal of the case to the Court of Session, charges for the offence punishable under Section 147, 364, 325/149 and 323/149 IPC were framed against all the accused. Accused persons Munua @ Bharat Narain Singh, Ram Murti and Nanhey were further charged for the offence punishable under Section 148 IPC. All the accused persons denied the charges and claimed trial. 7. Accused persons Munua @ Bharat Narain Singh, Ram Murti and Nanhey were further charged for the offence punishable under Section 148 IPC. All the accused persons denied the charges and claimed trial. 7. In order to prove its case, the prosecution has examined complainant - Smt. Gurmeet Kaur P.W.-1, her injured husband Gurmej Singh P.W.-2, Daya Singh P.W-3, S.I. Radhey Shyam Sharma P.W.-4, SI A.K. Bajpai P.W.-5 and Dr. S. P. Goel P.W.-6. 8. All the accused persons in their separate statements under Section 313 Cr.P.C. have again denied the entire prosecution story and claimed false implication due to interference of the local M.L.A. However, they have not adduced any evidence in defence. 9. The learned trial Court after hearing the parties’ counsel has convicted and sentenced the accused as indicated in para-1 of the judgment above. Aggrieved, he has come up in appeal. 10. In order to appreciate the argument of learned counsel for the appellant for taking lenient view in the matter of quantum of sentence considering the age of the accused-appellants, the period elapsed since incident and filing of appeal, a bare look is required on the facts of the case as also the evidence adduced during trial. 11. Although the learned counsel for the appellants has not pressed the appeal on merits i. e. with regard to the conviction of the appellants in the case, but it has to be examined as to what offence has been proved against the appellants. There is no dispute with regard to the conviction of the appellants Munua @ Bharat Narain Singh, Ram Murti and Nanhey for the offence punishable under Section 148 IPC and other appellants under Section 147 IPC and all for the offences punishable under Section 325/149 and 323/149 IPC. However, on close scrutiny of the evidence adduced by the prosecution during trial, in the opinion of the Court, the conviction of the appellants for the offence punishable under Section 364 IPC is not well founded and they deserve benefit of doubt. Before I list the reasons, it would be useful to have the provisions of Section 364 IPC, which reads as under: “364. Before I list the reasons, it would be useful to have the provisions of Section 364 IPC, which reads as under: “364. Kidnapping or abducting, in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 12. The instant case is of abduction, as it had been alleged that the accused by force compelled husband of the complainant to go with from his house in the tractor-trolly to the house of accused Munua situated in village Bidhauli. In order to prove this charge, the prosecution is required to prove - (i) that the accused compelled Gurmej Singh to go from his house; (ii) that he was so compelled by means of force or that the accused induced the victim to do so by deceitful means; and (iii) that the accused so abducted Gurmej Singh in order that (a) he might be murdered, or (b) he might be so disposed of as to be put in danger of being murdered. From the prosecution evidence, ingredient No. (iii) is not proved, because— (I) had there been any intention to abduct Gurmej Singh in order to kill him or to put him in danger of being murdered, all the seven accused would have immediately abducted him for being taken to their village as soon as he came out of his house; (II) None of the appellants, namely Munua @ Bharat Narain Singh, Ram Murti and Nanhey had used deadly weapon, although it was alleged that accused Munua @ Bharat Narain Singh was armed with licensed rifle and accused Nanhey Singh and Ram Murti had guns in their hands; (III) inspite of being armed with fire arms, the accused-appellants assaulted Gurmej Singh with lathis and butt of fire arms and his wife Gurmeet Singh with kicks, fists and barrel of fire arms; (IV) that after the alleged abduction of Gurmej Singh in tractor-trolly, no information about the incident was given to the police although witnesses had arrived on the spot and they remained at the house of the complainant till Gurmej Singh allegedly returned back home at about 8:30 p.m; (V) the doctor has found fracture in patella bone of left knee of Gurmej Singh, so it was not possible for him to walk down about 1,1/2 -2 kilometers from village Budhauli to his own house on foot; (VI) in order that in order to justify his stand about coming back home on foot, Gurmej Singh had spoken white lie in his cross-examination about fracture in patella bone of his left knee. He has stated that in the incident none of his bone was fractured and till today he did not sustain any fracture. He had also denied about any plaster having been applied to his fractured bone; (VII) the accused persons would not have let off the victim without having caused much more injuries to him if his statement given in cross-examination is believed. He has stated that after he was taken to the house of accused Munua he was again beaten by all the accused and was confined in a room and its kundi was put on from out side and after some time his servant came for some work, opened the door and then he made his escape good. He has stated that after he was taken to the house of accused Munua he was again beaten by all the accused and was confined in a room and its kundi was put on from out side and after some time his servant came for some work, opened the door and then he made his escape good. (VIII) If the seven accused had assaulted Gurmej Singh firstly at his house and then in village Budhauli then he would have suffered much more injuries as have been found by the doctor in his medical examination. He has stated in his cross-examination that in Budhauli the accused have caused 8-10 lathi blows on his body. The injuries found by the doctor on the person of Gurmej Singh are not commensurate to the number of accused and the manner of assault at two different places; 13. For all the above reasons, the story put forward by the prosecution regarding abduction of the victim by the accused persons in order to kill him or to put him danger of being murdered, is not reliable and the accused-appellant deserve benefit of doubt for the commission of offence punishable under Section 364 IPC. 14. As regards sentencing policy a Bench of 3-Hon’ble Judges of the Apex Court in the case of Hazara Singh v. Raj Kumar and others, (2013) 9 SCC 516 , has highlighted the ‘sentencing policy’ after taking note of its earlier decisions. Relevant para-13 of the report, reads as under: “(17) We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.” Almost same principles on sentencing were propounded by the Apex Court in the case of State of M.P. v. Babulal and others, (2013) 12 SCC 308, in the following terms : “19. In view if the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing mis-placed sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing.” It would be useful to note down certain cases where the Court has considered the period of pendency of appeal and the date of incident in converting the custodial sentence into fine. 15. George Pon Paul v. Kanagalet and others, (2010) 1 SCC (Cri) 1070, in this case, the appellant was found guilty for the offence punishable under Section 326 and 452 IPC. He was sentenced to confinement till rising of the Court and fine with default stipulation. The High Court on revision by the victims enhanced the sentence, however, the Apex Court did not interfere in the sentence awarded by the trial Court due to long passage of time. 16. Nasir v. State of U.P., (2011) 2 SCC (Cri) 136, The appellant was found guilty for the offence punishable under Section 399/402 IPC and 25 (1)(a) Arms Act and was sentenced to five years’ imprisonment under Section 399/402. 16. Nasir v. State of U.P., (2011) 2 SCC (Cri) 136, The appellant was found guilty for the offence punishable under Section 399/402 IPC and 25 (1)(a) Arms Act and was sentenced to five years’ imprisonment under Section 399/402. The occurrence had taken place about 29-years ago and the appellant remained in custody for more than six months, therefore, the sentence awarded to the appellant was reduced to the period already undergone by him. 17. State of U.P. v. Siyaram and another, (2013) 2 SCC (Cri) 137, in this case appellant Jiya Lal was found guilty for the offence punishable under Section 307/34 IPC, however considering the fact that the incident had taken place in the year 1988, appellant has now become an aged person and there is nothing on record to show that he is either habitual offender or previous convict, his sentence was reduced to already under gone but fine was increased to Rs. 10,000/-. In State appeal, the Apex Court did not approve the reduction of sentence, however refused to interfere because the prosecution had been initiated in the year 1988, but fine was enhanced to Rs. 25,000/-. 18. Labh Singh and others v. State of Haryana and another, (2013) 1 SCC (Cri) 1125, in this case the appellants were found guilty for the offences punishable under Section 326/324/323 r/w Section 34 IPC. The appellants were very old i.e. 82, 72 and 62 years respectively, incident was 27-years old and they had undergone part of the sentence, therefore, the Apex Court directed each appellant to pay Rs. One lakh compensation to the complainant/injured persons and their sentence was reduced to period already undergone by each of them. 19. Jagpal Singh and others v. State of U.P., 2004 (5) ACC 310, this Court vide judgment dated 26.6.2004 found that the incident had taken on 1.9.1977, the appellants were convicted on 23.4.1981 under Section 325/34 and 324 IPC and so each was sentenced to pay fine of Rs. 2,000/- under Section 324 IPC and Rs. 4,000/- under Section 325/34 IPC. 20. Raghuvera and others v. State of U.P., 1991 (28) ACC 498, the trial Court and the appellate Court have convicted the five revisionists for the offences punishable under Section 147 and 307/149 and were sentenced to R.I. for one year under Section 147 and five years’ R.I. under Section 307/149 IPC. 4,000/- under Section 325/34 IPC. 20. Raghuvera and others v. State of U.P., 1991 (28) ACC 498, the trial Court and the appellate Court have convicted the five revisionists for the offences punishable under Section 147 and 307/149 and were sentenced to R.I. for one year under Section 147 and five years’ R.I. under Section 307/149 IPC. In revision this Court converted the conviction into Sections 147, 323/149, 324/149 and 325/149 IPC and observed that all the offences were committed in the same transaction, so separate sentences need not be recorded. The revisionists were sentenced to period of imprisonment already under gone by each of them with fine of Rs. 500/- each. It was further observed that the incident took place about 8-years ago and injured can be compensated with fine. It was held that short term sentences now are not likely to serve any useful purpose. 21. Satsen v. State of U.P., 2014 (84) ACC 606, in this case the appellant was convicted for the offence punishable under Section 307 IPC, but considering the fact that the incident is 33 years’ old, appeal came up for hearing after 32-years and the appellant is also ill, the sentence of three years’ R.I. awarded by the trial Court was converted into fine of Rs. 30,000/-, out of which Rs. 25,000/- was to be paid to the injured, if he is alive or his legal heirs. 22. After taking into consideration the case-law referred above and striking a balance between the nature of the crime and that the appellants have already suffered the pangs and agony of protracted trial and appeal for the last about 30 years; there is no history of their previous involvement in any other criminal case. 22. After taking into consideration the case-law referred above and striking a balance between the nature of the crime and that the appellants have already suffered the pangs and agony of protracted trial and appeal for the last about 30 years; there is no history of their previous involvement in any other criminal case. Each had been in jail for few days in connection with this case and the maximum custodial sentence awarded to the accused-appellants is two years, therefore, the ends of justice would be met if the appellants are sentenced as under: Accused Section Imprisonment Fine Default imprisonment 1 2 3 4 5 Munua @ B. N. Singh Ram Murti Singh, and Nanhey each 148 IPC Already under gone 3-months SI Chhutiya, Shambhoo Singh @ Shyampal Singh, Sobaran Singh Dhunni Singh @ Rati Bhan Singh each 147 IPC -do- 1,000/- One month SI Munua @ B. N. Singh 325/149 IPC do- 5,000/- Six months SI Ram Murti Singh, Nanhey, Chhutiya, Shambhoo Singh @ Shyampal Singh, Sobaran Singh and Dhunni Singh @ Rati Bhan Singh each 323/149 IPC -do- 1,000/- One month SI 23. The appeal is partly allowed. All the appellants are acquitted for the offence punishable under Section 364 IPC. Their conviction as noted in column-2 of the table is confirmed and each is sentenced as indicated in column Nos. 3 to 5. The impugned judgment and order is modified to the above extent. Each appellant would deposit the amount of fine in the trial Court within a month from today. After realization of fine, injured Gurmej Singh and Smt. Gurmeet Singh would be paid a sum of Rs. 20,000/- and 10,000/- respectively as compensation. In case any of the injured is not alive, then the amount of compensation would be paid to his/her legal heir. —————