D. Ramalingam Vs. State - 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]. - 5 dhanalakshmi being the informant in this case stated in her evidence before the trial court that some ten months back on a wednesday her mother fell down near a tube-well and died. the husband of the deceased told him that the deceased died being hit by a stone while coming from the tube-well at or around 7.30 p. on his inspection, this witness found an injury on the right side of the chest, which appeared to him like a stab wound. 5 before the trial court by saying that his wife was lying on the public road near the tube-well in a wounded condition. in these circumstances, i am constrained to hold that the trial court committed serious mistake in holding the appellant guilty under section 304, part ii, ipc and therefore, the impugned judgment of conviction and sentence cannot be sustained in law as well as on facts.s. barman roy, c.j.1. this appeal at the instance of appellant d. ramalingam is directed against the judgment dated 28.2.1987 passed by the learned additional sessions judge, jeypore in connection with sessions case no. 78 of 1986 convicting the appellant under section 304, part ii, ipc and sentencing him thereunder to undergo rigorous imprisonment for six years.2. prosecution case, in brief, is that on 23.4.1986 at about 11 p.m. p.w.5 dhanalakshmi lodged an or complaint before the jeypore town p.s. alleging, inter alia, that on that day itself p.w.5 dhanalakshmi with her mother had gone to cinema hall to see movie. after watching the movie when they returned home the appellant being her grand-father scolded her asking as to why she was frequently going to watch movie. thereafter an altercation took place between the two. during such altercation, mother of the informant came along with her husband and intervened. both of them asked the appellant as to why he was scolding dhanalakshmi. upon hearing this, the appellant being furious picked up a knife and tried to attack the father of p.w.5. at that time, the deceased being the mother of p.w. 5 intervened and stood between the father of the informant and when the appellant attempted to stab the father of the informant which ultimately fell on the chest of the deceased. the deceased happens to be the mother of the informant. from there the deceased was taken to the hospital and upon arrival at the hospital she was declared dead. this is, in brief, the oral complaint by p.w.5 before the police station which was reduced into writing and registered as an f.i.r. against the appellant under section 302. ipc. after usual investigation, the case was committed to the court of learned sessions judge, jeypore. on transfer, the case was ultimately tried before the learned trial court.3. on perusal of the materials on record, learned trial court framed a charge under section 302, ipc against the appellant to which he pleaded not guilty.4. in all, eight p.ws. were examined on behalf of the prosecution. the appellant adduced no evidence.5. however, the case of the appellant before the trial court was of complete denial of the prosecution case, as alleged.6. on completion of trial, the appellant was ultimately convicted and sentenced, as already stated.7. p.w.5 dhanalakshmi being the informant in this case stated in her evidence before the trial court that some ten months back on a wednesday her mother fell down near a tube-well and died. p.w.5 brought the deceased home. she denied any knowledge as to whether the deceased was stabbed by any body. at this stage, the witness was declared, hostile and with the permission of the trial court this witness was cross-examined by the prosecution. in course of her cross-examination by the prosecution, she stated that she lodged an fir at the police station about the death of her mother and in that f.i.r. she stated that on the date of occurrence her grand-father abused her and therefore her mother protested him. at that time the appellant tried to stab the father of the informant. but the father of informant (p.w.5) moved away and the stab attempted by the appellant with the knife fell on her mother. this version was given by her out of fear of three police men. she gave the statement as desired by the police. she also admits that ext.7 is the f.i.r. and contains her signature. therefore, it appears from her evidence that she completely resiled from her earlier statement made in the f.i.r. and therefore, this f.i.r. can be used only for contradiction and not for corroboration inasmuch as she did not claim in her evidence that, the appellant stabbed the deceased.8. evidence of p.w.1 manasaram sahu, in brief, is that he knew the appellant, his wife and the deceased. on 23.4.1986, wife of the appellant came to his house around 9 p.m. and informed him that in course of an altercation, the appellant inflicted a knife blow on the deceased and the deceased had been taken to the police station or to the hospital and therefore, the wife of the appellant requested this witness to ascertain as to what was the exact position. thereafter this witness along with his wife started for the hospital. on the way to the hospital, husband of the deceased told them that what was to happen had happened and there was no necessity of this witness to go to the hospital. so he started to return back to his house. while so returning back home, this witness saw police personnel in the house of the appellant and the son of the deceased handed over a knife to the investigating officer, which was seized in his presence and in the seizure memo of the knife he put his signature. therefore, his evidence is based on hearsay so far as the alleged assault on the deceased by the appellant is concerned.9. p.w.2 dr. pravakar stated in his evidence that on 23.4.1986 he was attached to jeypore subdivisional hospital as an assistant surgeon. he received a dead body. the husband of the deceased told him that the deceased died being hit by a stone while coming from the tube-well at or around 7.30 p.m. on that very day. on his inspection, this witness found an injury on the right side of the chest, which appeared to him like a stab wound. he informed the fact to the police station at. 10.15 p.m. ext.2 is the written information given by this witness to the police.10. likewise, p.w.4 r. kasinath is the son of the appellant. he also turned hostile and did not support the prosecution case at all. in fact he echoed the version of p.w.5 before the trial court by saying that his wife was lying on the public road near the tube-well in a wounded condition. he stated his ignorance as to how the deceased sustained the injury. he was cross-examined by the prosecution with the permission of the court. he resiled completely from his previous statement recorded by the police.11. p.w.6 pannamba is the wife of the appellant. as usual, she too did not support the prosecution. she also completely resiled from her previous statement recorded by the police during investigation. she was also cross-examined by the prosecution with the permission of the court.12. p.w.3 is dr. suresh chandra nayak, who held post mortem examination over the dead body of the deceased. this is, in brief, the entire evidence on record.13. on perusal of the impugned judgment, it appears that the trial court acted upon the statements made by p.w.5 in the f.i.r. the trial court forgot the law in this regard that a statement in the f.i.r. is not a substantive piece of evidence and on that basis none can be convicted. the statement in the f.i.r. can be used for the purpose of contradiction or corroboration. there is no evidence on record to which the contents of the f.i.r. can lend any corroboration. apart from the aforesaid, there is absolutely no evidence on record that the appellant stabbed the deceased for which she was taken to the hospital. in these circumstances, i am constrained to hold that the trial court committed serious mistake in holding the appellant guilty under section 304, part ii, ipc and therefore, the impugned judgment of conviction and sentence cannot be sustained in law as well as on facts.14. in the result, i allow the appeal and set aside the impugned judgment.