JUDGMENT : SANJAY KUMAR SINGH, J. 1. This criminal appeal has been preferred by the appellant, namely, Rajendra Singh against the judgment and order dated 16.12.1986 passed by Special Judge (E.C. Act), Budaun in Sessions Trial No. 24 of 1985 (State vs. Rajendra and Others) arising out of Case Crime No. 4 of 1984, under sections 363, 366, 368 and 376 IPC, police station Ughaiti, district Budaun, whereby the accused appellant-Rajendra Singh has been convicted and sentenced to four years’ rigorous imprisonment under section 366 IPC. 2. However, by the same order, the learned Special Judge acquitted the co-accused persons, namely, Sukkhi, Smt. Ramkali and Room Singh under Section 363 and 366 IPC and Sunder, Ram Bharosey, Chandra Pal, Smt. Tikola alias Ganga Devi, Gokil, Smt. Mallo and Smt. Lareti under section 368 IPC. 3. In short compass, the facts of the case as unfolded by the prosecution in the first information report lodged by the informant, Man Singh on 07.01.1984 at about 12.30 PM at the police station Ughaiti, Sahaswan district Budaun are that on 14.12.1983 at about 6.00 AM accused, Rajendra (present appellant), his father Sukkhi, Smt. Ramkali (first wife of Sukkhi and real mother of appellant Rajendra Singh), second wife of Sukkhi, who is known by the name of Thakurani, and Room Singh (son-in-law of Sukkhi) came to the house of the informant. Sukkhi stated that Katha would be recited at the house of his son-in-law Room Singh and requested the informant to permit his grand-daughter Km. Pravesh (herein-after referred to as “the prosecutrix”) to accompany them to village Mahanagar. As the accused, Rajendra and his parents also resided in the same village and both the families had cordial relations, complainant-Man Singh allowed the prosecutrix, who was aged about 15-16 years, to go with them. The prosecutrix left the house along with the accused in the presence of witnesses Vijay Singh, Hardwari and Mahendra Singh. It was also mentioned in the FIR that when after 4-5 days accused Sukkhi along with his both the wives returned, he enquired from Sukkhi about the prosecutrix, who told him that she stayed in his relations and will come back in 2-4 days. However, when she did not return, he went to Mahanagar to search the prosecutrix, but in vain. He came to know that Rajendra and prosecutrix are not present in Mahanagar. However, when she did not return, he went to Mahanagar to search the prosecutrix, but in vain. He came to know that Rajendra and prosecutrix are not present in Mahanagar. Thereafter, first information report was lodged by the informant that his minor grand-daughter, aged about 15-16 years, has been enticed away by the accused-appellant, Rajendra Singh in collusion with the afore-mentioned persons. 4. On the basis of the aforesaid report, a case was registered against Rajendra Singh (present appellant), his father Sukkhi, Smt. Ramkali (first wife of Sukkhi and real mother of appellant Rajendra Singh), Thakurani (second wife of Sukkhi) and Room Singh (son-in-law of Sukkhi) at Case Crime No. 4 of 1984, under Sections 366 and 368 IPC. 5. After the registration of the FIR, the law set into motion and the case was entrusted to PW-7, S.I. Horam Singh Tyagi, who recorded the statements of witnesses and inspected the spot and prepared site plan. Thereafter, PW-7 proceeded on leave and investigation of the case was entrusted to S.I. Chhattar Singh. On 10.01.1984, S.I. Chhattar Singh arrested the accused Sukkhi and recorded his statement. On 11.01.1984, he recorded the statement of accused Rajendra Singh in the police station civil lines, who was detained there after his arrest. He also recorded the statement of the prosecutrix on the same day. On 12.01.1984 S.I. Chhattar Singh arrested accused Sundar and Ram Bharosey. 6. On 25.01.1984, the investigation of the case was again handed over to S.I. PW-7, Horam Singh, who after completion of investigation and necessary formalities, submitted the charge sheet on 03.02.1984 against accused, Rajendra Singh, Sukkhi, Room Singh, Sunder and Ram Bharosey, which he proved as Ext. Ka-18, on 29.02.1984 against Smt. Ramkali and on 05.04.1984 against Chandrapal, Smt. Tikoli @ Ganga Devi, Gokil, Smt. Mallo and Smt. Lareti (Ext. Ka-20) for the offence under sections 366 and 368 IPC. 7. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions on 21.01.1985, where case was registered as Sessions Trial No. 24 of 1985 and learned Special Judge, (E.C. Act), Budaun vide order dated 27.05.1986 framed the charges against all the accused namely, Rajendra, Sukkhi, Smt. Ram Kali, Ram Bharosey, Room Singh, Sunder, Chandrapal, Smt. Tikoli alias Ganga Devi, Gokil, Smt. Mallo and Smt. Lareti under sections 363, 366, 376 and 368 IPC. 8. 8. To bring home guilt of the appellant, the prosecution has examined as many as 7 witnesses, out of which PW-1, Man Singh, PW-3, Hardwari, PW-4 Vijay and PW-5 Km. Pravesh were the witnesses of facts and the remaining were formal witnesses. 9. PW-1, Man Singh is the informant and grandfather of the prosecutrix Km. Pravesh. He reiterated the versions mentioned in the first information report. 10. PW-2, Dr. P.K. Agarwal deposed that on 11.01.1984 she was posted as Medical Superintendent at District Women Hospital, Budaun. On that date, she has conducted the medical examination of the victim. As per medical report the prosecutix was aged about 19 years. In the opinion of the doctor, the prosecutrix was habitual of sexual intercourse. However, doctor further opined that as no fresh sign of rape was found, no opinion about rape can be given. 11. PW-3, Hardwari deposed that on the date of incident at about 6.00 in the morning, while he was standing in front of the house of Mahendra, he had seen the prosecutrix in the company of accused, Rajendra Singh, Sukkhi, Ramkali, Thakurani and Room Singh. He further deposed that on enquiry, Sukkhi told him that there is Katha in the house of her son-in-law and they are going there. 12. PW-4, Vijay deposed that on the date of incident at about 6.00 in the morning when he was coming from the forest, in front of the house of Mahendra, he saw that accused Sukkhi, Rajendra Singh and Sukkhi’s both wives Ram Kali and Thakurani were going along with the prosecutrix. Hardwari was also present there. On enquiry by Hardwari, Sukkhi told him that they are going to Maha Nagar to hear Katha in the house of his son-in-law. 13. PW-5, Km. Pravesh is the victim of the case. She has fully supported the prosecution version. She deposed that on the date of incident accused Ram Kali, Thakurani, Rajendra and Room Singh came to her house and requested her grand-father to allow her to go with them to hear Katha, which has been arranged in the house of Room Singh at Maha Nagar. Her grandfather acceded to their request and allowed her to go with them. However, when she reached there, she noticed that no Katha was organized there. The accused kept her in the night in the house of Room Singh under strict vigilance. Her grandfather acceded to their request and allowed her to go with them. However, when she reached there, she noticed that no Katha was organized there. The accused kept her in the night in the house of Room Singh under strict vigilance. Next day, she was taken to an advocate at Budaun by the accused Sukkhi, Room Singh, Gokil and Rajendra, where she was forced to sign certain papers on the point of pistol and knife. Thereafter, she was taken to several places and was kept under strict vigilance. She further deposed that accused Rajendra committed rape on her against her wishes before he was arrested. 14. PW-6, Constable Anand Dhiani is the scriber of the first information report. He deposed that in January, 1984 he was posted as Clerk-Constable at the police station Ughaiti. On 07.01.1984 at about 12.30 PM, he has written the report on the diction of the first informant, Man Singh, which he proved as (Ext. Ka-1). He also deposed that he made necessary entries in the G.D., which he proved as Ext. Ka-7. 15. The evidence of PW-7, Horam Singh Tyagi has already been discussed above. 16. After the closure of the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. in which they denied the charges levelled against them and claimed to be tried. 17. Learned Special Judge, (E.C. Act), Budaun after hearing the learned counsel for the parties and after scrutinizing and assessing the evidence on record, convicted and sentenced the appellant Rajendra Singh to four years' rigorous imprisonment under Section 366 IPC and acquitted the others accused-persons. 18. Feeling aggrieved, the accused-appellant has come up before this Court in appeal. 19. Heard Mr. Vinod Kumar Sharma, learned counsel for the appellant, learned Additional Government Advocate representing the State and perused the judgment and order as well as record of the present case. 20. At the very outset, Mr. Vinod Kumar Sharma, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant. 21. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances. 22. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant. 21. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances. 22. Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including evidence of the prosecutrix and eye-witness account to base conviction, accordingly, the conviction of the appellant for the aforesaid offence stands affirmed. 23. However, on the quantum of sentence, learned counsel for the appellant has argued that the appellant is not a previous convict, he is the sole bread-earner of his family and that he is an old man aged about 62 years. 24. Learned counsel for the appellant further submits that the appellant was awarded rigorous imprisonment of four years and that he has already undergone 17 days before conviction and 21 days after conviction, meaning thereby that he has undergone about 38 days of the awarded sentence. 25. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami vs. Delhi Administration, 1973 AIR 1457, held as under: “Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same.” 26. In the case of Sattan Sahani vs. State of Bihar and Others, 2002 (45) ACC 1134 (SC), accused were sentenced to three years' rigorous imprisonment under section 326 IPC. In appeal, the Apex Court reduced the sentence to the period already undergone on the ground that the incident took place two decades back and parties have also compromised. 27. In the case of Bankat and Another vs. State of Maharshtra, 2004 (50) ACC 953 (SC), accused were convicted under section 326 IPC and sentenced to one year imprisonment with fine. The Apex Court reduced the sentence to the period already undergone on the ground that the parties have settled the dispute outside the court and 10 years have elapsed from the date of incident. 28. In the case of Uthem Rajanna vs. State of Andhra Pradesh, 2005 (11) SCC 531 , accused was convicted and sentenced to six months' simple imprisonment under section 304-A IPC along with fine of Rs. 500/- and three months' simple imprisonment under section 338 IPC and also to pay a fine of Rs. 500/- under section 337 IPC. The Apex Court in appeal has reduced the sentence to the period already undergone. 29. In the case of Neelam Bahal and Another vs. State of Uttarakhand, 2010 (2) SCC 229 , the accused was convicted and sentenced to undergo seven years' rigorous imprisonment under section 307 IPC. 500/- under section 337 IPC. The Apex Court in appeal has reduced the sentence to the period already undergone. 29. In the case of Neelam Bahal and Another vs. State of Uttarakhand, 2010 (2) SCC 229 , the accused was convicted and sentenced to undergo seven years' rigorous imprisonment under section 307 IPC. The Apex Court has convicted the accused under section 326 IPC and reduced the sentence to the period already undergone, i.e. almost one year, on the ground that the incident happened in the year 1987, when the accused was of young age of 25 years. 30. In the present case, offence is related to the incident dated 14.12.1983, i.e. almost 37 years from date. Appellant was convicted by the trial court on 16.12.1986 and instant appeal is pending before this Court since 1987. As such appellant has already suffered the regours of protracted trial and mental agony due to long pendency of criminal proceedings against him. Therefore, no useful purpose would be served in sending appellant back to jail after 37 years of the incident. Appellant has re-built his roots in the society as a law abiding person. In this background, it would be unjust to uproot him at this belated stage. 31. Considering the facts and circumstances of the case and the substantive period already undergone by the appellant in this case and the fact that the appellant is an old person and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself, I am of the considered opinion that he should be given a chance to reform himself and his better contribution to the society to which he belongs to. 32. Consequently, the conviction of the appellant stands affirmed. The sentence is modified and the period already undergone by the appellant in this case, i.e. 38 days is taken as his substantive sentence under Section 366 IPC. 33. The appeal stands partly allowed. 34. The appellant is on bail. His bail bonds are cancelled and sureties discharged. 35. Office is directed to transmit a copy of this order to the learned Sessions Judge, Budaun. 36. Office is also directed to send back the record of the trial court immediately. 37. 33. The appeal stands partly allowed. 34. The appellant is on bail. His bail bonds are cancelled and sureties discharged. 35. Office is directed to transmit a copy of this order to the learned Sessions Judge, Budaun. 36. Office is also directed to send back the record of the trial court immediately. 37. It is directed that in case certified copy of this judgment is not issued due to COVID-19 pandemic, the copy of the judgment downloaded from the official website of the Allahabad High Court shall be acted upon.