IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 Crl.Rev.Pet.No. 4036 of 2006() ------------------------------ CRA.656/2003 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.38/2000 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------------- ANVAR, S/O.KHALID, VALAPPIL VEEDU, BEYPORE AMSOM, NEAR R.M.HOSPITAL. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE ---------------------------------------------------------------------------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = Crl.R.P.No.4036 of 2006 = == = = = = = = = = = == Dated: 16.02.2009 O R D E R In this revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner, who is the accused in C.C. No.38 of 2000 on the file of the J.F.C.M-1, Kozhikode for an offence punishable under Section 225B IPC, challenges the conviction entered and the sentence passed against him for the aforementioned offence. 2. The case of the prosecution can be summarised as follows: On 23.12.99, the accused was arrested in Crime No.160/99 of Beypore Police Station and was remanded to judicial custody by J.F.C.M-V, Kozhikode. The accused was entrusted to the custody of PW1 /Police Constable, who eventually produced him before the Sub Jail. While so, the accused sought permission from PW1 to pass urine. Permission was granted and under the pretext of entering the urinal for passing urine, the accused escaped from the custody of PW1. The accused has thereby committed an offence punishable under Section Crl.R.P.No.4036/2006 -:2:- 225A IPC. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws. 1 to 6 and got marked 3 documents as Exts. P1 to P3. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 21.10.03 found the revision petitioner guilty of the offences punishable under Section 225A I.P.C. and sentenced him to undergo simple imprisonment for three months. On appeal preferred by the revision petitioner before the Sessions Court, Kozhikode as Crl.Appeal No.656 of 2003, the lower appellate court as per judgment dated Crl.R.P.No.4036/2006 -:3:- 18.05.2005 confirmed the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- Eventhough the accused was remanded to judicial custody in the morning itself and entrusted to the custody of PW1, the Police Constable bearing number P.C 5514, the said Constable was fully drunk and under the influence of drink. That may be the reason why even at 3.30.p.m., the accused was not taken to the prison. According to the accused, PW1 who had escorted him from the place of arrest to the Court of J.F.C.M-V was drunk on that day. In a drunken state PW1 had permitted the accused to go home and that is why he had left the court and on the next day he had reported before the court. The said version of the accused is amply corroborated by the testimony of PW3, the ASI who had deputed PW1, the Police Constable on duty that day. PW3 had deposed that eventhough at the time of his deputing PW1 on escort duty, PW1 was not drunk, he learned subsequently that PW1 was later on found drunk and he had Crl.R.P.No.4036/2006 -:4:- told the investigating officer that the drunkeness certificate of PW1 had also been obtained. The accused was thus entrusted to the custody of a Police Constable who was drunk. The version of the accused that the Constable had permitted the accused to go home, since he was in a drunken stage is quite probable. The certificate of drunkeness pertaining to PW1 and allegedly obtained by PW3 is significantly not produced before the court. The logical presumption can only be that the said certificate if produced would have revealed that PW1 was so inebriated that he was clearly under the influence of liquor probablising the defence of the accused. 7. I am afraid that I cannot agree with the above submissions. Evidently this is a defence which was conceived as an afterthought because during the cross-examination of PWs. 1 and 2 the accused had no case, much less a faint suggestion even that PW1 was in a drunken state when the accused was entrusted to his custody. Both the courts below have discarded the said story which was woven as an afterthought. The conviction was thus rightly ended against the petitioner. Crl.R.P.No.4036/2006 -:5:- 8. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. Having regard to the facts and circumstances of the case, I do not think that the revision petitioner deserves penal servitude by way of incarceration for the aforesaid offences particularly when the version of PW3 indicates that PW1 the Police Constable whom the accused was entrusted with was understood to have consumed alcohol. Hence, the sentence imposed on the revision petitioner by the courts below is set aside and instead, he is sentenced to a fine of Rs.3,000/-(Rupees three thousand only) and on default to pay the fine, to suffer simple imprisonment for one month. The petitioner is given 30 days from today to deposit the fine amount before the trial court. In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed as above. V.Ramkumar, Judge. sj Crl.R.P.No.4036/2006 -:6:-