The sentence of imprisonment imposed by the court must be modified in accordance with the period of incarceration already undergone. Therefore, while sentencing a person for imprisonment or upholding the judgment of the lower court in an appeal, the appellant court must consider the term of imprisonment already undergone by the convicted person. This principle was upheld by the Kerala High Court presided by J. Bechu Kurian Thomas in the case of CHERKULATH SURESH vs THE STATE OF KERALA & anr. [CRL.A.No.297 OF 2007].
The appellant i.e. the accused possessed Ethyl Alcohol 23.68% by volume and was found guilty for the offence under Section 8(1) of the Abkari Act; sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months by judgment dated 23.01.2007. The prosecution alleged that on 24.12.2004, the Excise Circle Inspector, found the accused in possession of five litres of illicit arrack carried by him for sale in a can. On noticing the existence of a case exclusively triable by a Court of Session, the learned Magistrate referred the case to the Court of Sessions. The learned counsel for the appellant vehemently contended that no independent witnesses who were examined to prove the seizure of the contraband article from the accused and that the witness turned hostile and though questions were put to him by the prosecution, nothing beneficial to the prosecution were elicited. The learned counsel enthusiastically canvassed that in such circumstances, the benefit of doubt, atleast, must be given to the accused.
The honorable court held, “Even though PW1 turned hostile to the prosecution and denied of having seen the seizure of arrack from the accused, the evidence of official witnesses are convincingly clear that the accused was apprehended along with the arrack. In spite of severe cross examination, the official witnesses stood firm, regarding the seizure of arrack from the accused.” The court further held, “On an appreciation of the aforesaid submissions of the learned counsel for the appellant, I am of the view that taking into reckoning the long passage of time and also taking note of the fact that the appellant had already undergone incarceration from 24.12.2004 till 07.02.2005, a modification can be made to the sentence imposed. The sentence of imprisonment imposed upon the appellant shall therefore stand modified to the period already undergone. The fine amount imposed by the learned Sessions Judge being the minimum fine provided under law, the same is affirmed. In the aforesaid circumstances, while confirming the conviction of the appellant under Section 8(1) of the Abkari Act, the sentence of imprisonment imposed by the learned Sessions Judge is modified to the period already undergone. However, the sentence of fine imposed and the default sentence imposed by the learned Sessions Judge stands affirmed.”