Sanjeeva S/O Erappa vs State Of Karnataka
2021 Latest Caselaw 3676 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF NOVEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION NO.805/2012

BETWEEN

SANJEEVA
S/O ERAPPA
AGED ABOUT 23 YEARS
R/O DIDAGURU VILLAGE,
HAVERI TALUK AND DISTRICT
                                      ...PETITIONER
(BY SRI N D JAYADEVAPPA, ADVOCATE)

AND

STATE OF KARNATAKA
BY RURAL POLICE
TIPTUR
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE
                                      ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 CR.P.C, PRAYING TO SET-
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED BY THE PRL. CIVIL JUDGE & JMFC, TIPTUR IN
C.C.NO.360/2009 DATED 2.04.2011 AND CONFIRMED IN
                                    2


CRL.APPEAL NO.28/2011 DATED 9.07.2012 PASSED BY
THE P.O., F.T.C., TIPTUR.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                               ORDER

Heard Sri N.D.Jayadevappa, learned counsel for the

Revision Petitioner and learned High Court Government

Pleader for the respondent and perused the records.

2. This Revision Petition is filed by the accused,

who has suffered an order of conviction in

C.C.No.360/2009 on the file of the Principal Civil Judge and

JMFC, Tiptur by Judgment dated 02.04.2011, whereby he

has been convicted for the offences punishable under

Sections 417, 468 and 420 read with Section 149 of IPC,

which was confirmed in Criminal Appeal No.28/2011, on

the file of the Fast Tract Court at Tiptur by judgment dated

09.07.2012.

3. Brief facts of the case are as under:

A complaint came to be lodged on 06.07.2008

contending that at about 11.30 a.m., in front of

Anganavadi Centre at Hullukatte, Tiptur Taluk, accused

persons including the Revision Petitioner, cheated general

public stating that they have visited the said place for

vaccine the children against the danger deceases and

forging the permission letter from the Director, Health and

Family Welfare Department, Bengaluru and Davanagere

Revolution of Health Care Association. Admittedly, no such

permission was given and Hepatitis-B vaccine was sought

to be administered to the children in the locality. Public

after raising doubt about the new persons, lodged a

complaint. The jurisdictional police registered a case based

on the said complaint and investigated the matter in detail

and found no such permission is given by the Director,

Health and Family Welfare Department, Bengaluru and

Davanagere Revolution of Health Care Association and laid

a charge sheet against the accused person for the

aforesaid offences.

4. The presence of the accused was secured

before the learned Magistrate and plea was recorded.

Accused did not plead guilty and as such, trial was held.

5. In order to prove the case of the prosecution,

prosecution in all examined 13 witnesses as PWs.1 to 13

and relied on 18 documentary evidence which were

marked and exhibited as Exs.P1 to 18 and 21 material

objects as M.Os.1 to 21.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded, wherein accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by adducing oral

evidence or filing a written submission as is contemplated

under Section 313(5) Cr.P.C.

7. Thereafter, learned Magistrate heard the

parties in detail and passed an order of conviction

convicting the accused for the aforesaid offences and

sentenced as under:

• "For the offence punishable under Sec. 417 of IPC each accused shall undergo simple imprisonment for three months and shall liable to pay fine amount of Rs.1,000/- each. In default of payment of fine, each accused shall undergo simple imprisonment for one month.

• For the offence punishable under Sec.420 of IPC each accused shall undergo simple imprisonment for six months and shall liable to pay fine amount of Rs.1,000/- each. In default of payment of fine each accused shall undergo simple imprisonment for one month.

• For the offence punishable under Sec.468 of IPC each accused shall undergo simple imprisonment for six months and shall liable to pay fine amount of Rs.1,000/- each. In default of payment of fine each accused shall undergo simple imprisonment for one month."

8. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.28/2011.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

is in the Revision Petition.

9. In the Revision Petition, the following grounds

are raised:

'The Judgments of the courts below are opposed to law, facts and probabilities in the case.

The courts below have failed to see that from the acts/by vaccination, no body/children were not affected or found ill.

PW/1 Complainant is a Taluk Health officer, at Tiptur at relevant period. On the fateful day soon after he receipt of phone message from villagers of Hullukatte, PW-1 went to the spot.

There the accused have shown certain documents i.e. xerox copies of documents having obtained permission from Health Department. PW-1 further deposed that

among the accused persons one person has completed general Nursing Course.

From the evidence of PW1/Complainant, it is crystal clear that from the Acts of the accused/petitioner no children were affected and further PW-1 deposed that they have given prescribed medicine only.

From the Tenor of evidence of PW-1, it is clear that absolutely there was no motive or mensrea for the accused to cheat or defraud anybody. Because the accused came with men and material for Vaccination.

Absolutely they have no ill will or fradulent/mensrea from the beginning to defraud the public at large.

The PWs 3 to 6 who are alleged to be eye witness have turned hostile.

The say of PWs.8 and 9 are in the nature of hear say.

It is not clear among several accused who had vaccinated to whom or to which children. Further among the accused to whom they had paid Rs.50/- is not clear.

Absolutely no loss or harm or even prejudice has caused to any villagers.

It is submitted that, among 5 Accused who actually collected Rs.50/-, or to whom it has paid actually. Further not proved who had actually vaccinated the each boy. Apart from

that no loss or harm or prejudice is caused to any individual.

Having regard to facts and circumstances of the case in hand, Absolutely there is no intention, or mensrea for the petitioners to cause any harm to any victim.

Having regard to facts and circumstances of the case, the courts below erred not extending benefit of provisions of P.O.Act.

The petitioner is young. First offender not a man of bad antecedents.

The sentence is unduly severe.

The petitioner seeks leave of this Hon'ble Court to urge Additional grounds at the time of hearing."

Reiterating the above grounds, learned counsel for the

Revision Petitioner has contended that the order of

conviction and sentence passed by both the Courts is

without proper appreciation of the materials on record

resulting in miscarriage of justice and sought for allowing

the Revision Petition. However, he contended that since

the accused is the first time offender, probation may be

granted to the accused.

10. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that both the Courts have rightly appreciated the materials

on record in a proper perspective and sought for dismissal

of the Revision Petition. He also contended that

admittedly, the accused has forged the signature of the

Director of Health and Family Welfare Department,

Bengaluru and Davanagere Revolution of Health Care

Association, which shows that he is not entitled for any

leniency and sought for dismissal of the Revision Petition.

11. In view of the rival contentions and having

regard to the scope of the Revision Petition, following

points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 417, 468 and 420 read with Section 149 of IPC, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, the accused, who is

captured by the general public along with the material

objects on 06.07.2008 at about 11.30 a.m. Along with the

captured accused, a complaint came to be filed.

Admittedly, a letter is shown by the accused purported to

be issued by the Director, Health and Family Welfare

Department, Bengaluru and Davanagere Revolution of

Health Care Association. On verification by the

investigating agency, the said letter appears to be a fake

one and signature of the Director has been forged. Why

the accused indulged in such an activity is not forthcoming

on record. The prosecution witnesses did not nurtured any

previous enmity or animosity against the accused persons

and falsely implicated the accused in the above case.

Admittedly, the vaccination materials used by the accused

to be administered to the children is a serious offence that

too with a fake permission letter. Why hepatitis-B

vaccination administered in that area and was there a

previous requisition or report from the concerned Health

Department officials requesting the accused persons to

administer the vaccination is not at all explained by the

accused by placing their version on record. Under such

circumstances, the Trial Magistrate rightly appreciated the

prosecution evidence on record and came to the conclusion

that the accused persons parse cheated the general public

as if they are the true health workers having permitted by

the Director, Health and Family Welfare Department,

Bengaluru and Davanagere Revolution of Health Care

Association to administer the vaccination to the children.

The same is also reappreciated by the learned Judge in the

first Appellate Court not only concurring with the finding

recorded by the Trial Magistrate but also supplement the

additional reasons for the same. This Court, carefully

perused the reasons assigned by the Trial Magistrate,

learned Judge in the first Appellate Court and in the light

of the grounds urged by the Revision Petitioner. On such

consideration, this Court is of the considered opinion that

there is a legal infirmity or perversity in reaching out such

a finding by the Trial Magistrate and confirmed by the first

Appellate Court. The grounds urged in the Revision Petition

are therefore not sufficient to hold that the finding

recorded by the Trial Magistrate and confirmed by the first

Appellate Court is either suffering from legal infirmity or

perversity. Accordingly, point No.1 answered in the

negative.

13. Insofar as the sentence is concerned, the

accused/Revision Petitioner has been convicted for the

offences punishable under sections 417, 468 and 420 read

with Section 149 of IPC. Administering the hepatitis-B

vaccination to the children is without there being any

permission itself is a the heinous offence and it has got a

far reaching effect. In such circumstances, if the Courts

are inclined to take lenient view, the same would not only

result in great harm to the public at large but also sends a

wrong message to the perpetrators of the crime in

encouraging them in indulging in such activities.

14. Accordingly, this Court is of the considered

opinion that no leniency can be shown to the accused by

accepting the contentions urged on behalf of the Revision

Petitioner. Hence, point No.2 is answered in the negative

and pass the following:

ORDER

Revision Petition sans merit and hereby dismissed.

Sd/-

JUDGE

KA