# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942**
**Crl.Rev.Pet.No.880 OF 2006**
**AGAINST THE JUDGMENT IN CRL.APPEAL.NO.930/2005 DATED 30-01-2006 OF THE SESSIONS COURT, ERNAKULAM**
**AGAINST THE JUDGMENT IN CC NO.1348/2000 DATED 30-09-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PERUMBAVOOR**
## **REVISION PETITIONER/APPELLANT/2ND ACCUSED:**
**SUBRAHMANIAN, AGED 36, S/O.KUNJIRAMAN, VILANGATTIL HOUSE, KURICHILAKKODE KARA,, KODANADU VILLAGE.**
**BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM**
## **RESPONDENT/COMPLAINANT/STATE:**
**STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULM.**
**R1 BY SR.PUBLIC PROSECUTORS SRI.M.S.BREEZ**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**Crl.Rev.Pet.No.880 OF 2006**
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## **ORDER**
## **Dated this the 12th day of October 2020**
The revision petitioner is the appellant in Crl.A.No.930 of 2005 on the file of the Sessions Court, Ernakulam and the accused in CC No.1348 of 2000 on the file of the Judicial First Class Magistrate Court, Perumbavoor. The offences alleged against accused 1 and 2 are punishable under Sections 341, 353, 225B r/w 34 of the Indian Penal Code.
2. By its judgment dated 30.09.2003, the learned Magistrate convicted and sentenced the 1[st] accused to undergo simple imprisonment for six months for the offence punishable under Section 353 of the IPC. The 2[nd] accused was convicted and sentenced to undergo simple imprisonment for two months for the offence punishable under Section 225B of the IPC. Both accused were found not guilty for the offence punishable under Section 341 r/w 34 of the IPC and accordingly they were acquitted thereunder.
3. The 2[nd] accused preferred Crl.A.No.930 of 2005 before the Sessions Court, Ernakulam, challenging the conviction and sentence. By its judgment dated 30.01.2006, the learned Sessions Judge
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dismissed the appeal confirming the conviction and sentence rendered by the trial court. Feeling aggrieved, the revision petitioner/2[nd] accused is before this Court.
4. The prosecution case in brief is that, on 21.05.2000 at 7.45 p.m, the 2[nd] accused was found handling liquor and on seeing the act, the Excise Officials took him into custody and while so, the 1[st] accused along with three others obstructed the jeep and rescued the 2[nd] accused forcibly from their custody and thereby the officials were prevented from discharging the duty and thus the accused alleged to have committed the aforesaid offences.
5. Heard Sri.V.Rajendran(Perimbavoor), the learned counsel for the revision petitioner/2[nd] accused and Sri.M.S.Breez, the learned Senior Public Prosecutor.
6. PW3, the Excise Inspector, testified that on 21.05.2000 while conducting patrol duty, the 2[nd] accused -Subrahmanian was found in possession of Indian Made Foreign Liquor bottle under the name and style XXX rum along with a glass and tumbler. On seeing the Excise Officials, the 2[nd] accused threw away the glass and bottle and tried to escape from the scene of occurrence. Immediately, the 2[nd] accused was taken into custody. When the 2[nd] accused was questioned,
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the 1[st] accused and others reached at the scene of occurrence and forcibly released the 2[nd] accused from the custody of the Excise Officials. Although the Excise Officials prevented his escape from the custody, according to PW3, the 2[nd] accused forcibly removed from their custody. Accordingly, Ext.P1 complaint was lodged before the police. On the strength of Ext.P1 complaint, the police registered Ext.P2-FIR alleging the aforesaid offences.
7. PW1 is the Preventive Officer who accompanied PW3 on the date of occurrence. He further stated that while they had conducted patrol duty, the 2[nd] accused was found in possession of Indian Made Foreign Liquor along with a glass and tumbler. He supported the version of PW3 that he was taken into custody and put inside the jeep and while so the 1[st] accused and others came to the scene of occurrence and forcibly rescued the 2[nd] accused from the lawful custody.
8. Both the trial court and the appellate court analyzed the entire evidence in detail and believed the version of PWs 1 and 3 holding that the 1[st] accused and others rescued the 2[nd] accused from the lawful custody of the Excise party. Concurrent findings of facts are sought to be challenged in revision. The learned counsel for the revision petitioner Sri.V.Rajendran(Perumbavoor) submitted that no overt act
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has been done by the 2[nd] accused and the 2[nd] accused did not make any attempt to escape from the lawful custody of the Excise Officials as alleged by the prosecution. Relying on the decision in **Thangal v. State of Kerala** (1961 KHC 91), the learned counsel for the revision petitioner contended that unless and until positive evidence is adduced by the prosecution to prove that the 1[st] accused was instrumental in rescuing the 2[nd] accused from the custody of the Excise Officials, ingredients under Section 225B of the IPC is not attracted. In otherwords, it is contended that there must be some overt act on the part of the 2[nd] accused to escape from the lawful custody.
9. Per contra, the learned Senior Public Prosecutor submitted that person who rescues and the person who escapes are equally guilty of the offence under Section 225B of the IPC.
10. In this case the allegation is that the 2[nd] accused was taken into custody by the Excise Officials in connection with lawful discharge of official duties. While so, admittedly, the 2[nd] accused had escaped from their custody. It is true that, the 1[st] accused and others came to the scene of occurrence and rescued the 2[nd] accused from the custody of the Excise Officials. Going by the scheme of Section 225B of the IPC it is clear that, 'whoever, in any case not provided for in section 224 or
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section 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, or escapes or attempts to escape from any custody in which he lawfully detained, or rescues, or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment of either description for a term which, may extend to six months, or with fine, or with both'. Going by Section 225B of the IPC, it is clear the a person escaped from the lawful custody of the officials concerned are also coming within the ambit of Section 225B of the IPC. Merely because, the 1[st] accused and others came to the scene of occurrence and paved way for the escape of the 2[nd] accused itself is not sufficient to hold that the 2[nd] accused is not guilty of the offence. In the case on hand, the 1[st] accused and others came to the scene of occurrence and rescued the 2[nd] accused from the custody of the Excise officials. Consequently, the 2[nd] accused escaped from the custody of the Excise Officials. The result is one and the same. A law abiding citizen is not expected to escape from the custody of the law enforcing authorities merely because others were instrumental in rescuing him from the lawful custody. The facts and circumstances involved in this case are entirely different from the
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**Thangal** 's case (supra). In the said case, wherein no overt act has been done by the 1[st] accused to forcibly rescue the 2[nd] accused from the custody of the Amin and the oral incitement or instigation alone would not be sufficient to constitute the offence of rescuing from the custody made punishable under Section 225B of the IPC. In such a case, the accused can be convicted of the offence of abetment to escape. The facts in this case would show that the 2[nd] accused escaped from the custody of the Excise Officials with the aid of the 1[st] accused and others. Hence, this Court is of the view that the offence under Section 225B of the IPC is clearly attracted. The trial court and the appellate court meticulously analyzed the evidence in detail and convicted the revision petitioner on well grounded reasons. No sufficient reasons are brought out to interfere with the order of conviction passed by the trial court, which was confirmed in appeal.
11. Coming to the question of sentence, the learned counsel for the revision petitioner submitted that the offence punishable under Section 225B of IPC is punishable with imprisonment or with fine or with both. The learned counsel for the revision petitioner further submitted that the occurrence in this case was on 21.05.2000 and at that time the revision petitioner was only 30 years old. He has been
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conducting this case for the last 20 years. He has undergone the agony of a criminal prosecution. For all these special reasons, the learned counsel for the revision petitioner seeks indulgence of this Court to reduce the sentence.
12. Having considered the facts and circumstances including the age of the offender at the time of occurrence, this Court is of the view that this is a fit case for modifying the sentence
In the result, the revision petition is allowed in part. The conviction imposed under Section 225B of the IPC is confirmed. The sentence is modified. The revision petitioner/2[nd] accused is sentenced to pay a fine of Rs.3,000(three thousand) and in default of payment of fine to undergo simple imprisonment for a period of three months. Registry shall forward the records of this case to the trial court at the earliest.
Sd/-
**N.ANIL KUMAR, JUDGE**
dlk/12.10.2020
