JUDGMENT
R.K. Rastogi, J.
1. This is a revision against judgment and order dated 6.5.1987 passed by Sri C.B. Jaiswal, then learned Sessions Judge, Bijnor in Criminal Appeal No. 83 of 1986, Mohd. Younus and Ors.v. State of U.P.
2. The facts relevant for disposal of this revision are that on 18.8.1984 Ram Singh, Kurk Amin lodged a report at police station Nazibabad district Bijnor against accused revisionists with these allegations that on the aforesaid date he alongwith constables Vikram Singh and Rajpal Singh; and Suresh Chandra Sharma, Ashok Kumar and Param Singh, employees of Akabarabad Kisan Sewa Sahakari Samiti had gone to arrest Mohammad Younus, debtor of the above Samiti for recovery of the amount due against him. At about 4.30 P.M. when they tried to arrest Mohd. Younus, he and his associates named Mohd. Hanif, Alimuddin and Abdul Aziz started to abuse them and stated that if any action is taken by them, they would be murdered and the accused collected around them. Mohd. Younus tried to run away then Ram Singh and his companions tried to chase Mohd. Younus but the remaining accused obstructed them and so Mohd. Younus could not be arrested.
3. On the basis of the above report a case under Sections 353, 504 and 506 I.P.C was registered against them and after investigation the police submitted a chargesheet against the accused persons. The accused were charged under Sections 353 and 506 I.P.C. They pleaded not guilty and claimed to be tried.
4. The prosecution examined Ram Singh as P.W.I. He narrated the the entire F.I.R. case on oath and also proved the F.I.R.Ext. Ka 2.He also proved warrant of arrest issued against Mohd. Younus by the Tahsildar, which is Ext. Ka 1.
5. Suresh Chandra Sharma P.W.2, Ashok Kumar P.W.3 and Vikram Singh P.W.4 are eye witnesses of the incident and they corroborated the statement of P.W. 1 Ram Singh. Ratan Lal Verma, Sub Inspector, P.W. 5 had investigated the case. He has proved the site plan Ex.Ka 5 and chargesheet Ex.Ka 6.
6. The accused in their statement recorded under Section 313 Cr.P.C. denied the prosecution case and stated that they had been falsely implicated in this case. No defence witness was produced by the accused persons.
7. The learned Magistrate after hearing the case came to the conclusion that charge under Sections 353 I.P.C. was proved against the accused persons. He, therefore, convicted the accused under Section 353 I.P.C. and sentenced them to simple imprisonment for one year. The accused persons were acquitted of the charge under Section 506 I.P.C. Aggrieved with the order of conviction, the accused filed Criminal Appeal No. 83 of 1986 before the Sessions Judge, Birnor. It was heard and decided by Sri C.B. Jaiswal, then learned Sessions Judge who dismissed it on merits and confirmed the order of conviction passed against the accused revisionists. However, he reduced the sentence from one year to six months vide his judgment dated 6.5.1987. Aggrieved with that judgment and order the accused filed this revision before this Court.
8. I have heard learned counsel for the revisionists and learned A.G.A. for the State.
9. The learned counsel for the revisionists submitted that there is no evidence to this effect that the accused in any way assaulted the Kurk Amin and his associates and so no charge under Section 353 I.P.C. was made out against the accused persons.
10. It is to be seen that the word ‘Assault’ has been defined under Section 351 I.P.C. which provides that whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. It is further provided that mere words do not amount to an assault but the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. In the present case the allegation against the accused is that they threatened to kill the Kurk Amin and his party and also obstructed them from arresting Mohd. Younus and when Younus was trying to run away and the Kurk Amin and his party men were following Mohd. Younus to arrest him, the remaining accused obstructed them from doing so. These acts make out a clearcut case under Section 353 I.P.C. and there is no force in the contention that no case under Section 353 I.P.C. is made out.
11. The learned counsel for the accused revisionists then submitted that the incident allegedly took place on 18.8.1984. The accused were convicted by the trial court on 5.11.1986 and they were convicted by the appellate court on 6.5.1987. The order for grant of bail was passed on 11.5.1987 and thereafter the accused were released on bail and in this way they remained in jail for about one week. It was submitted that after a lapse of about 21 years from the date of incident the accused should not be sent to jail and the period already undergone by them in jail should be considered to be sufficient and if the Court is of the view that this imprisonment in any way is not sufficient, it may impose fine upon the accused revisionists and the order of sentence of imprisonment passed against the accused revisionists should be set aside. It was further pointed out that the learned Magistrate had passed an order of simple imprisonment only for one year against the accused and the appellate court while reducing the sentence imposed R.I. for six months, though it could not do so without issuing any notice for enhancement of the sentence.
12. Considering the facts and circumstances that no injury of any sort was caused by the accused-revisionists to the Kurk Amin and his party and there are allegations of assault only and the long gap of 21 years from the date of incident to this date as well as that there is no fault of the accused revisionists in delayed disposal of the revision as after admission of the revision on 11.5.1987, the first date fixed for its hearing was 27.9.2004 and also that in view of the ages disclosed by the accused in their statements on 20.10.1986 the present age of the accused Younus is 64 years, of Abdul Aziz and Alimuddin 84 years and Mohd. Hanif 44 years, I am of the view that now at this stage instead of sending the accused-revisionists to jail, it would be in the interest of justice that the sentence of imprisonment should be reduced to that already undergone by them and the remaining term of imprisonment should be substituted by fine. I substitute it by a fine of Rs. 1000/- on each accused revisionist.
13. The revision is partly allowed. The order of conviction of the accused persons under Section 353 I.P.C. is maintained but the order of sentence passed against them is modified and after taking into consideration the period of imprisonment already undergone by the accused revisionists, the remaining period of imprisonment is substituted by the sentence of fine of Rs.l000/-on each accused. They are allowed four months’ time to deposit the amount of fine and if they fail to deposit the fine they shall have to undergo simple imprisonment for six months.