Kate Munda Vs. State of Orissa - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 6, who examined the injured pitunu has stated that she could have survived had better treatment been provided.b. panigrahi, j. 1. this is an appeal against the judgment/order dated 19.4.1995 passed by the learned sessions judge, sundargarh, in sessions trial no. 66 of 1 994, convicting the appellant under section 449/302/326 of the indian penal code, in short, 'ipc', and sentencing him to undergo imprisonment for life under section 302 ipc, rigorous imprisonment for ten years under section 449 ipc, and rigorous imprisonment for seven years under section 326 ipc; the sentences are to run concurrently. 2. the prosecution story as unravelled during trial is as follows : one jeta munda of village patabeda has reported at the police station that on 16.11.1993 the pig of kate munda entered into the mustard field of the informant and damaged the mustard crops. the wife of the informant drove the said pig away. the appellant, on the other hand, charged the informant's wife that she had killed the pig. at about 5.00 p.m. in the evening of the sunday preceding the date of lodging the information at the police station; the wife of the informant pitunu munda, daughter haiti, mother resa munda and his brother's wife were sitting in his house. at that time the appellant being armed with a falsia forcibly entered into the said house and dealt blows indiscriminately on the head, face and hands of the informant's wife, as a result of which she sustained severe bleeding injuries on different parts of her body. the appellant also dealt a falsia blow on the daughter of the informant, as a result of which she sustained bleeding injury on her person. the father and mother of the informant snatched away the falsia from the hands of the appellant and thereafter he left the place. the matter was reported to the village chowkidar. since he was suffering from fever, he directed the informant to furnish a report at the police station. the informant while going the police station by a truck met with an accident. therefore, he could not reach the police station and returned to his house. on the following day, information was lodged at the police station, on the basis of which a case under sections 450, 307 and 326, ipc was registered against the appellant. upon the death of the informant's wife, it was termed into a case of causing homicidal death to her.3. the o.i.c., koida police station after registration of the case, took up investigation. he visited the spot, prepared the spot map, issued injury requisition and seized the weapon of offence stained with blood. he also sent the injured pitunu munda for immediate treatment. but day by day her condition deteriorated and ultimately she died after 16 days of the incident. the dying declaration alleged to have been made by injured was recorded by the medical officer on police requisition. after pitunu munda died, the case was registered under section 302, ipc and inquest was held over her dead body. the incriminating materials were sent for chemical examination. after completion of investigation, charge sheet was laid against the appellant. 4. the trial court on the basis of the evidence recorded that the appellant was guilty of commission of murder of pitunu munda and sentenced him to undergo r.i. for life apart from other punishments. 5. in this case, the prosecution has examined 9 witnesses including the husband of the injured pitunu munda. p.w. 1 presented the history of the case. from his evidence, it is transpired that on the date of occurrence he was not present in the house and had gone on duty. the pig belonging to the appellant damaged his crops for which his wife pitunu (the deceased) drove the same out. the appellant being enraged, assaulted his wife by means of falsia, as a result of which, she sustained bleeding injuries. he has also explained the ground of delay in lodging the f.i.r. which has been believed by the court below. p.ws, 2 and 3 have claimed to be the eye witnesses to the occurrence. from their evidence, it has been brought out that the appellant abruptly came with a falsia and assaulted pitunu on her head and other parts of the body. the medical officer, p.w. 6, who examined the injured pitunu has stated that she could have survived had better treatment been provided. p.w. 8, the medical officer who conducted the post-mortem examination has unequivocalfy stated that the death was due to septicaemia and starvation. from his statement a lucid picture has been presented that the death would not have occurred if the injured had been properly provided treatment in time. therefore, the cause of death cannot be attributed to the appellant. 6. in the aforesaid background, the extent of the liability of the appellant, who undisputedly caused injuries on the deceased pitunu munda, is to be considered. no intention can be attributed to the appellant. there is also nothing on record to show that the appellant had the knowledge that such injuries would cause the death of pitunu. the learned sessions judge has also framed charge under section 326, ipc against the appellant. the occurrence was the outcome of sudden flare up. since there was no intention or knowledge of causing death of pitunu, we are of the considered opinion that the offence comes within the purview of section 326, ipc instead of section 302, ipc as held by the learned sessions judge. therefore, we set aside the order of conviction and sentence of the appellant under section 302 ipc. since the appellant has been acquitted of the charge under section the appellant has been acquitted of the charge under section 302 ipc, the further charge under section 449 ipc is unsupportable in law. we, however, agree with the trial court that the appellant is guilty under section 326 ipc for causing grievous hurt to pitunu munda and confirm the order of his conviction and sentence on that count. 7. the prosecution has not been able to establish that the appellant had caused any injury to the daughter of the informant. therefore, the allegation on that score is also unsustainable. 8. in the result, the appeal is allowed in part as indicated above. the conviction and sentence of the appellant under sections 449/302 ipc are set aside. but, his conviction under section 326 ipc for causing grievous hurt to pitunu munda and sentence of rigorous imprisonment for seven years are confirmed. in case the appellant has served out the aforesaid sentence, he be set at liberty forthwith. ch. p.k. mishra, j.