JUDGMENT : HARPREET SINGH BRAR, J. 1. The present appeal has been preferred against the judgment of conviction dated 25.01.2014 and order of sentence dated 27.01.2014 passed by learned Additional Sessions Judge, Palwal in case bearing FIR No. 36 dated 23.04.2006, under Sections 364A, 506, 120B, 34 IPC registered at Police Station Hassanpur whereby the appellants/accused have been convicted for the commission of offences punishable under Sections 120B and 365 IPC and have been awarded following sentence: Section 365 IPC Rigorous imprisonment for a period of five years along with fine of Rs. 2,000/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for three months. Section 120B IPC Rigorous imprisonment for a period of five years along with fine of Rs. 2,000/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for three months. FACTUAL BACKGROUND 2. Brief facts of the prosecution case are that on 22.04.2006 at about 11.45 PM, Vijender Singh, SI/SHO Police Station, Hassanpur along with Constable Pawan Kumar No. 324 was on patrolling duty in the official vehicle, which was being driven by Constable Rashid Khan in the area of village Jatoli when complainant Ram Chand son of Ram Sukh, resident of Bela, Police Station Hassanpur met him. He submitted an application (Ex.PB) wherein it was stated that on 22.04.2006 at about 8 AM, his grandchildren namely Deepak and Hem Lata, who were students of 6th standard, went to attend their school on foot. Near Agra canal bridge, three persons met his grandchildren where they handed over the school bag of Deepak to Hem Lata and took Deepak with them towards village Korali. Thereafter, Hem Lata came home and narrated the whole incident. Efforts were made to find Deepak but he could not be traced out. The complainant suspected that his grandson namely Deepak was kidnapped by Babu Lal, resident of Sirohi (UP), Rambir, Daya Chand, Kishan, Ramroop sons of Khillu, Shiv Dayal, Bhoj Pal, Bhim sons of Daya Chand, all residents of village Bela. The aforesaid application (Ex.PB) was endorsed by Vijender Singh, SI/SHO in order to forward the same to Police Station, Hassanpur for registration of a case under Section 364 IPC. 3. During the course of investigation, on 23.04.2006, SI/SHO Vijender Singh had visited the spot and prepared rough site plan. The aforesaid application (Ex.PB) was endorsed by Vijender Singh, SI/SHO in order to forward the same to Police Station, Hassanpur for registration of a case under Section 364 IPC. 3. During the course of investigation, on 23.04.2006, SI/SHO Vijender Singh had visited the spot and prepared rough site plan. Phone of the complainant was kept on surveillance whereupon a telephonic message seeking ransom was received. On receipt of information on 03.05.2006 that a child, aged about 12/13 years was kept confined by a person in the house of one Madan at village Baveli, District Bagpat, a raid was conducted and Deepak was recovered from confinement of accused Babu Bhagat and Madan. The accused persons were arrested. On 03.05.2006, SI/SHO Vijender Singh had visited Police Station Barot, District Bagpat where Inspector/SHO Sanjay Saroi handed over the custody of Deepak to him as well as copy of D.D. No. 32. A memo regarding taking over custody of Deepak was also prepared and he was handed over to his father. A rough site plan of the place of recovery of the child was prepared on 04.05.2006. On 05.05.2006, accused Babu Lal suffered a disclosure statement to the effect that he, Sarvar son of Munna, Santosh son of Vasdev, Sukhpal son of Badlu, Sushil son of Vijay Verma and Mukesh hatched a conspiracy to kidnap Deepak grandson of Ram Chand and accordingly, committed the offence. Accused Madan also made a disclosure statement to the same effect on 05.05.2006. On 05.05.2006 itself, memo regarding place of occurrence was prepared at the instance of accused Babu Lal whereas at the instance of accused Madan, memo qua place of recovery of Deepak was prepared on 06.05.2006. Thereafter, other accused persons namely Sushil, Santosh, Sarvar and Sukhpal were arrested and recoveries of mobile phones and other items were effected from them. The aforesaid accused persons also suffered disclosure statements qua their involvement in the crime. On 09.05.2006, one Baljinder Singh produced a car bearing No. UP14AC-2826, which was taken into possession by police and a memo was prepared in this regard. A motor cycle bearing No. UP14AA-5349 was recovered from accused Sarvar, which was taken into possession by police vide memo dated 09.05.2006. On 10.05.2006, accused Sarvar, Sukhpal and Santosh were produced before the Illaqa Magistrate. A motor cycle bearing No. UP14AA-5349 was recovered from accused Sarvar, which was taken into possession by police vide memo dated 09.05.2006. On 10.05.2006, accused Sarvar, Sukhpal and Santosh were produced before the Illaqa Magistrate. An application for conducting their identification parade was moved but accused persons refused for the same and their joint statement was recorded by the Illaqa Magistrate in this regard. Statements of witnesses under Section 161 Cr.P.C. were also recorded. 4. After completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared against the accused Babu @ Bhagatji @ Tonta, Madan, Sushil, Sarvar, Santosh @ Devender and Sukhpal on 17.07.2006. 5. After making due compliance of the provisions of Section 207 Cr.P.C. charges were framed against the appellants/accused to which they pleaded not guilty and claimed trial. 6. The prosecution, in order to prove its case, examined total 17 witnesses and closed its evidence. 7. Appellants/accused did not lead any evidence in their defence. 8. After hearing arguments of both the sides and perusing the evidence on record, the trial Court convicted and sentenced the appellants/accused as stated above. CONTENTIONS 9. Mr. Amaninder Preet, Legal Aid Counsel appearing for the appellants contends that he is not assailing the impugned judgment of conviction dated 25.01.2014 on merits and restricts his prayer to modification of the order dated 27.01.2014 on quantum of sentence to that of the sentence already undergone by the appellants. The appellants were convicted under Sections 365, 120B IPC and sentenced to undergo rigorous imprisonment for a period of five years. They have already undergone more than 3 years of custody including remission. No other case was pending against them prior to the registration of the present FIR nor were they involved in any other criminal case after suspension of their sentence in the present case. 10. Learned counsel for the appellants further contends that appellants herein namely Sukhpal and Madan are 77 years and 55 years of age respectively and both of them have reformed and intend to live a fruitful and peaceful life. It is also contended by counsel for the appellants that there is no minimum sentence provided under Section 365 IPC and therefore, prays that order of sentence of the appellants be modified to that of already undergone. 11. It is also contended by counsel for the appellants that there is no minimum sentence provided under Section 365 IPC and therefore, prays that order of sentence of the appellants be modified to that of already undergone. 11. Per contra, learned State counsel opposes the prayer of the appellants for modification of the order of sentence to that of already undergone on the ground that the appellants have been convicted for a heinous crime of kidnapping a minor boy of 12-13 years old, as such, they do not deserve any leniency. It is also contended that the learned trial Court has passed a well reasoned judgment based on correct appreciation of evidence available on record. ANALYSIS AND OBSERVATION 12. Undisputedly, the appellants herein were not named in the FIR. PW-1, Ram Chand initially suspected the role of co-convict Babu Lal. The Investigating Officer after completion of investigation nominated 13 persons as accused. Complainant/PW-1, Ram Chand and PW-2 Hem Lata did not support the case of prosecution with regard to identity of the appellants whereas the victim namely Deepak, who deposed as PW-4, had been declared hostile. PW-1, Ram Chand, grandfather of PW-4 Deepak, has only pointed out involvement of co-convict Babu Lal. He deposed that he has doubt about the involvement of other accused in the kidnapping of Deepak. PW-2, Hem Lata only named Babu Lal in her initial statement (Ex.DA) but later deposed that all accused except accused-Babu Lal were present in Court. However, the appellants were not named in either of the statements made by PW-2 Hem Lata. Similarly, PW-3, Yoginder has indicated the involvement of Babu Lal only. PW-4, Deepak was declared hostile and even PW-7, Mukesh Kumar, driver of the car used for the offence, has not supported the prosecution with regard to identity of appellants. 13. A two Judge Bench of the Hon’ble Supreme Court in State of Haryana vs. Janak Singh, AIR 2013 SC 3246 has dealt with the power of this Court to reduce the sentence as to the one already undergone in cases where the accused is convicted for an offence for which a minimum sentence is prescribed by law. Speaking through Justice Ranjana Prakash Desai, the Hon’ble Supreme Court observed as under: “10........It was open for the respondents to press the appeals on merits and pray for acquittal. Speaking through Justice Ranjana Prakash Desai, the Hon’ble Supreme Court observed as under: “10........It was open for the respondents to press the appeals on merits and pray for acquittal. Had the case been argued on merits, the High Court could have acquitted the respondents if it felt that the prosecution had not proved its case beyond reasonable doubt. Assuming the respondents did not press the appeals, the High Court had to still consider whether the concession made by the counsel was proper because it is the duty of the court to see whether conviction is legal. But, once the respondents stated that they did not want to press the appeals and the High Court was convinced that conviction must follow, then, ordinarily it could not have reduced the sentence to the sentence already undergone by the respondents which is below the minimum prescribed by law. The High Court could have done so only if it felt that there were extenuating circumstances by giving reasons therefor. While reducing the sentence, the High Court has merely stated that it was “just and expedient” to do so. These are not the reasons contemplated by the proviso to Section 376(1) of the Indian Penal Code. Reasons must contain extenuating circumstances which prompted the High Court to reduce the sentence below the prescribed minimum. Sentence bargaining is impermissible in a serious offence like rape. Besides, at the cost of repetition, it must be stated that such a course would be against the mandate of Section 376(1) of the IPC.” A two Judge Bench of the Hon’ble Supreme Court in State of Rajasthan vs. Dhool Singh, (2004) 12 SCC 546 speaking through Justice N. Santosh Hegde, has held as under: “18. Before concluding, we must refer to a disturbing tendency noticed by us very often in some of the judgments impugned before this Court. As in this case in some appeals, we find the appellate or revisional courts reduce the sentence while maintaining the conviction to sentence already undergone without even noticing what is the period already undergone. The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. The courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion, applicable to the facts of the case. Therefore, there is a need for the courts to apply its mind while imposing sentence.” 14. A two Judge Bench of the Hon’ble Supreme Court in Ajmer Singh vs. State of Punjab, (2005) 6 SCC 633 has observed as under: “10. We have noticed in several judgments of the High Courts which have come up for consideration before us that while reducing the sentence to the period already undergone, no notice is taken of the actual sentence undergone by the accused. There is nothing on record to indicate the period of sentence already undergone by the accused. We, therefore, consider it appropriate to observe that whenever a court reduces the sentence of an accused to the period already undergone, it should categorically notice and state the period actually undergone by the accused.” A two Judge Bench of the Hon’ble Supreme Court in Mohd. Giasuddin vs. State of A.P. AIR 1977 SC 1926 , speaking through Justice V.R. Krishna Iyer, has observed as under: “Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to antesocial behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” 15. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” 15. In Deo Narain Mandal vs. State of U.P. (2004) 7 SCC 257 , a three Judge bench of the Hon’ble Supreme Court has opined that awarding of sentence is not a mere formality in criminal cases. When a minimum and maximum term is prescribed by the statute with regard to the period of sentence, a discretionary element is vested in the Court. Background of each case, which includes factors like gravity of the offence, manner in which the offence is committed, age of the accused, should be considered while determining the quantum of sentence and this discretion is not to be used arbitrarily or whimsically. After assessing all relevant factors, proper sentence should be awarded bearing in mind the principle of proportionality to ensure the sentence is neither excessively harsh nor does it come across as lenient. Further, a two Judge Bench in Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , has reiterated that the imposition of sentence also serves a social purpose as it acts as a deterrent by making the accused realise the damage caused not only to the victim but also to the society at large. The law in this regard is well settled that opportunities of reformation must be granted and such discretion is to be exercised by evaluating all attending circumstances of each case by noticing the nature of the crime, the manner in which the crime was committed and the conduct of the accused to strike a balance between the efficacy of law and the chances of reformation of the accused. 16. A perusal of the ratio decidendi culled out in the above-mentioned judgments of the Hon’ble Supreme Court indicates that in order to determine the quantum of sentence, Courts should bear in mind the principle of proportionality as awarding punishment is not merely retributive but also reformative. 17. As per the custody certificates produced by the learned State counsel, details of custody period of the appellants are tabulated as under: SUKHPAL S. No. Particulars Period Year Month Days 1. 17. As per the custody certificates produced by the learned State counsel, details of custody period of the appellants are tabulated as under: SUKHPAL S. No. Particulars Period Year Month Days 1. Custody as under trial 09.05.2006 to 09.10.2006 00 05 03 25.01.2014 to 26.01.2014 2. Custody after conviction 27.01.2014 to 21.10.2015 01 08 25 3. Bail period, if any Nil 00 00 00 4. Parole availed Nil 00 00 00 5. Details of overstay/absent from parole/furlough Nil 00 00 00 6. Actual custody period after conviction (S. No. 2, 4 and 5) 01 08 25 7. Actual undergone period including custody as under trial (S. No. 1+6) 02 01 28 8. Earned Remission + GR 01 00 25 9. Total Sentence including remission (S. No. 7+8) 03 02 23 10. UT period served during conviction in other cases 00 00 00 11. Custody served after deduction of under trial period served during conviction in other cases (S. No. 9-10) 03 02 23 MADAN S. No. Particulars Period Year Month Days 1. Custody as under trial 04.05.2006 to 23.12.2006 00 07 22 25.01.2014 to 26.01.2014 2. Custody after conviction 27.01.2014 to 27.10.2015 01 09 01 3. Bail period, if any Nil 00 00 00 4. Parole availed Nil 00 00 00 5. Details of overstay/absent from parole/furlough Nil 00 00 00 6. Actual custody period after conviction (S. No. 2, 4 and 5) 01 09 01 7. Actual undergone periodcustody as under trial (S. No. 1+6) 02 04 23 8. Earned Remission + GR 01 02 16 9. Total Sentence including remission (S. No. 7+8) 03 07 09 10. UT period served during conviction in other cases 00 00 00 11. Custody served after deduction of under trial period served during conviction in other cases (S. No. 9-10) 03 07 09 18. A perusal of the judgment of conviction passed by the trial court indicates no perversity in the findings of the trial court and the same are based on correct appreciation of evidence available on record. Counsel for the appellants has not assailed the judgment of conviction on merits, rather he has restricted his prayer only qua quantum of sentence. CONCLUSION 19. The FIR in the present case was lodged on 23.04.2006 and the appellants have suffered the agony of trial for more than 17 years. Counsel for the appellants has not assailed the judgment of conviction on merits, rather he has restricted his prayer only qua quantum of sentence. CONCLUSION 19. The FIR in the present case was lodged on 23.04.2006 and the appellants have suffered the agony of trial for more than 17 years. After their conviction, they have grown into law abiding citizens with a desire to live a fruitful and peaceful life. They are not involved in any other criminal activities after their conviction in the present case and during the pendency of the present appeal. There are no other criminal cases pending against them. Out of total sentence of 5 years, appellants have already undergone actual sentence of more than 2 years out of the substantive sentence awarded to them. Accordingly, this Court is of the opinion that it would be in the interest of justice if sentence of rigorous imprisonment for 5 years awarded to the appellants is reduced to the period already undergone by them. 20. Consequently, the present appeal is disposed of in the following terms: (i) The judgment dated 25.01.2014 passed by the Additional Sessions Judge, Palwal convicting the appellants is upheld, however, the order of sentence dated 27.01.2014 is modified to the extent that the sentence of rigorous imprisonment for 5 years awarded to the appellants is reduced to the period of sentence already undergone by them. (ii) The sentence of fine of an amount of Rs.2000/- imposed upon the appellants by the trial Court is kept intact. The appellants are directed to deposit the amount of fine, if not already paid, in the trial Court within one month from the date of receipt of certified copy of this order and in case of default of payment of fine, the appellants shall be liable to be taken into custody and made to undergo rigorous imprisonment for three months. 21. Bail bonds and surety bonds of the appellant stand discharged. 22. Pending miscellaneous applications, if any, shall also stand disposed of. 23. The case property, if any, may be dealt with as per rules after expiry of period of limitation for filing the appeals. Record of the case be sent back to the Court below.