Court : Himachal Pradesh
Decided on : Jan-10-2006
Reported in : 2006CriLJ2093,2006(1)ShimLC332
..... the victim is mentally retarded. corroboration may be looked to her evidence but evidence of a mentally retarded witness cannot be out rightiy rejected particularly when the trial judge, after having asked questions from this witness, concluded that she was a capable witness. the question whether a person has sufficient capacity to testify is a question ..... mr. r.m. bisht, learned deputy advocate general for the state.so far the question, whether the evidence of the victim is acceptable or not, learned trial judge, while examining the victim, noticed that the witness was asked certain questions and from the answers to those questions, the witness was found 'capable to make the ..... that she was sexually assaulted by the accused against her wishes. this statement in any event is not dislodged in the cross-examination. otherwise also, a mere act of helpless resignation in the fact of inevitable compulsion non-resistance or passive giving in, when volitional faculty is either clouded by any disability or fear or duress ..... sexual intercourse on thorny place or hard surface. in cross-examination he says that all the injuries are possible in a manual work except injury no. 3, i.e, abrasion over shaft of penis. now absence of smega is strong evidence of recent sexual intercourse which also corroborates the testimony of the victim so that ..... k.c. sood, j.1. appellant khoja ram (accused for short), was tried and convicted for an offence punishable under section 376 of the indian penal code by the .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Mar-06-2006
Reported in : 2006(3)ShimLC340
..... of his vehicle by the petitioner. petitioner apprehending the arrest by the police, filed an application for the grant of anticipatory bail before the learned sessions judge, shimla who, vide his order dated june 28, 2004, 'annexure-p7' passed an order that petitioner sanjay kumar shall hand over the custody of the ..... authorized him to ply the said vehicle. the petitioner was also made liable to pay the taxes and any fines imposed on this vehicle and to act as owner of the vehicle for nil purposes. the petitioner was also required to pay the insurance and other charges. it was stipulated that in ..... criminal procedure, provides for the custody of the property before the commencement of the trial and inquiry, which is seized by any police officer. section 457 reads:457. procedure by police upon seizure of property.-(i) whenever the seizure of property by any police officer is reported to a magistrate under the provisions ..... present petitioner is entitled to the custody of the vehicle in question under section 457 of the code of criminal procedure.24. for the foregoing reasons, i am of the view that the impugned order is illegal and deserves to be set aside.25. in result, the petition is allowed. the impugned order ..... 379 of the indian penal code.6. according to the petitioner, prem singh had asked the petitioner to pay the remaining amount to his financer, i.e. ashok leyland finance limited. to enable him to pay the amount to the financer, the petitioner took loan of rupees 2.70 lacs from .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Mar-22-2006
Reported in : 2006CriLJ2862,2006(2)ShimLC78
..... the cr.p.c. reads as follows :311. power to summon material witness, or examine person present.-- any court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or ..... singh is necessary to reach at a just and fair decision in the case and to find out the truth. therefore, i set-aside the order of the learned sessions judge, shimla dated 27.10.2005 and permit the complainant to examine surender singh and balbir singh. the complainant shall however file the ..... if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to section 114 of the evidence act. in such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at ..... it is apparent that two persons balbir singh and surender singh had witnessed the alleged statement made by accused gurusharan sharma under section 67 of the ndps act. mention of the statement has been made in the complaint and it has also been averred in the complaint that this statement was witnessed by ..... inadvertently not been mentioned in the list of witnesses. it was further averred that the statement of accused gurusharan sharma under section 67 of the ndps act had been witnessed by surender singh and balbir singh and as such they were also necessary witnesses whose names had not been cited in the list .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Apr-03-2006
Reported in : AIR2006HP97,2006(1)ShimLC397
..... accustomed to or their economic and social conditions. it may also depend upon their culture and human values to which they attach importance. we, the judges and lawyers, therefore, should not import our own notions of life. we may not go in parallel with them. there may be a generation gap ..... kaur, : air2005sc534 , again considered what is meant by expression cruelty and held as follows:-10. the expression 'cruelty' has not been defined in the act. cruelty can be physical or mental. cruelty which is a ground for dissolution of marriage may be defined as willful and unjustifiable conduct of such character as ..... of cruelty alleged by the husband is the registration of a false case under sections 498-a, 406 and 120-b i.p.c. alongwith the further allegation that when the husband was arrested ..... deepak gupta, j.1. this appeal under section 28 of the hindu marriage act is directed against the judgment and decree dated 17.12.1999 passed by the learned district judge, mandi in h.m. petition no. 27 of 1996 whereby the learned trial court has granted a decree of divorce in ..... i have been informed at the bar that the persons have been acquitted. even if the persons may have been acquitted, the fact that such an incident has happened when the family members of the wife in her presence have beaten up and threatened the family of the husband is, in my opinion, an act of cruelty by itself.12. the next act .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Apr-10-2006
Reported in : 2006(2)ShimLC237
..... have been a corresponding increase in the sale value but this has not been done'. secondly, no opportunity whatsoever was afforded nor any public inquiry made. this allegation indeed is without any foundation in the record. there is nothing on the record which suggests that area was ever increased. ..... his lordship then was observed:.coming back, however, to the question of the meaning of the expression 'at any time' in section 24(1) of the. act, 1 am firmly of the view that the phrase does not authorize the chief settlement commissioner to interfere with a completed deal after any length ..... the chief settlement commissioner does not say that the sale certificate was obtained by the petitioner by practicing fraud, misrepresentation or concealment of fact.a three judges bench of the supreme court reiterated in estates development ltd. (in liquidation) v. the union of india and ors. : [1970]2scr534 that the ..... .r. mahajan, a retired director general of police, who then was a very senior serving police officer is responsible for the same. an inquiry was made by the additional district magistrate, shimla who found that the documents indeed were missing from the file but could not pin point how ..... after lapse of several years. in that case, the appellate authority rejected the appeal in june, 1966. no further steps were taken till 1968 and it was held that in these circumstances, the revisional jurisdiction by the chief settlement commissioner under section 24 could not be exercised.30. .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Apr-10-2006
Reported in : AIR2006HP108,2006(2)ShimLC9
..... learned counsel for the appellant submits that as the suit was dismissed, therefore, they could not assail the findings before the learned district judge on this question.12. aggrieved, the defendants no. 1 and 2 are in this second appeal.13. heard mr. r.l. sood, learned senior advocate with mr. ajay kumar, advocate ..... . the custom, as pointed out in ramalakshmi amtnal v. sivanatha perumal (1872) 14 moo. ind. app. 570, siromani and anr. v. hemkumar and ors. 1968 sc 1299, harihar prasad singh and ors. v. balmiki prasad singh and ors. : [1975]2scr932 , must be proved by the party who alleges such custom by ..... answered.question no. 2.whether in the matter of succession, the parties to the suit are governed by custom or by the provision of hindu succession act. in case of custom, what are the particulars of the custom and whether the same is valid17. the question in view of the pleading of ..... under the constitution. partap chand himself was the member of punjab scheduled tribe advisory council and therefore, the provisions of the hindu marriage or hindu succession act are not applicable to them. partap chand died in february, 1964 leaving behind his widow nima devi, two sons, namely, surinder chand plaintiff and shamsher ..... be recorded?5. whether in the matter of succession, the parties to the suit are governed by custom or by the provision of hindu succession act. in case of custom, what are the particulars of the custom and whether the same is valid?8. whether the parties to the suit in .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Jun-19-2006
Reported in : 2006(2)ShimLC354
..... released on bail on 12.7.1985. the plaintiff was charged for committing an offence under section 436 ipc and faced trial before the learned additional sessions judge (i), shimla. the said court vide its order dated 5.11.1986 discharged the plaintiff and held that there was no reasonable ground to proceed with the ..... or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used 'at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.' if the statement made before a police officer in the ..... law laid down by the apex court is that the statement recorded under section 161 cr.p.c. cannot be used in proceedings relating to the inquiry of the trial or the offence in respect of which such statement was recorded but there is no bar to use the statements if properly proved ..... court after following the aforesaid judgment of the apex court held as follows:hence, from above discussion, it is clear that the criminal procedure code and indian evidence act are complete codes and they do not provide any privilege to the maker of the statement under section 161 of the criminal procedure code. it cannot be said ..... that the stand of the defendants that they did not make this statement is totally an afterthought and this stand has been taken as an act of cowardice realizing that they might be held liable to pay compensation if the statements are found to be untrue.21. there is no dispute .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Jul-25-2006
Reported in : AIR2007HP52,2006(2)ShimLC394
..... the learned additional district judge, he had improperly tried the suit. in support of his argument, mr. k.d. sood relied upon section 7(iv)(c) including the last proviso thereof, of the h.p. court fees act, 1968 as well as section 8 of the suits valuation act, 1887 to contend that ..... came to be added as defendants in the suit5. in the suit, the plaintiff claimed himself to be the son of defendant no. 1. defendant no. 1 raja harmohindra singh had died during the pendency of the suit. his legal representatives were substituted after his death. the suit was filed ..... the aforesaid appeals are being disposed of together.2. in these two appeals the judgment and decree dated 1st september, 2003 passed by the learned additional district judge (1), kangra at dharamshala in civil suit no. 199/1995: (rbt no. 4/2002 ) titled tikka brijendra singh v. smt. usha rani and ors. ..... sale deeds in favour of these three defendants. these defendants alleged and averred that the aforesaid three sale deeds were executed by defendant no. 1 in their favour for valid, lawful consideration and thus they are entitled to receive their 47% share from out of re-determined compensation amount. ..... though disputes relating to compensation in respect of substantial portion of land had been still pending adjudication before the reference court.9. defendant no. 1 contested the suit by filing written statement raising various pleas including some preliminary objections about the maintainability of the suit etc. he had raised .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Aug-03-2006
Reported in : 2007(1)ShimLC102
..... that case before the district judge was not maintainable. in the aforesaid judgment ..... in consonance with other judgments by various judges of this court in the past that no notification under section 24 (1)(a) of 1987 act having been issued and the aforesaid notification issued on 15.3.1950 under the aforesaid 1949 act being applicable and held that by virtue of section 23 of himachal pradesh general clauses act, 1968, the appeal preferred by the petitioner in ..... (rendered on 9.6.2006), this court by way of a passing reference took note of the 'failure' of the state government in not issuing only notification under 1987 act despite lapse of almost two ..... sub-clause (a) of clause (1) of section 15 of the 1949 act. all the aforesaid judgments of this court took the view that the aforesaid section 15 of 1949 act empowering the state government to issue notification was in pari materia to section 24 of 1987 act. relying upon section 23 of the himachal pradesh general clauses act, 1968, it was held accordingly by .....
Tag this Judgment!Court : Himachal Pradesh
Decided on : Aug-17-2006
Reported in : 2006(3)ShimLC92
..... passed by the learned civil judge (senior division), lahaul spiti at kullu, relates to the interpretation to be placed upon the second proviso to sub-section (iv), read with clause (e) of sub-section (v), of section 7 of the himachal pradesh court fee act, 1968 (for short '1968 h.p. act').2. the facts, in ..... not on the market value of the immovable property which might be the subject-matter of the lease itself.10. to quote the learned judge himself, i reproduce hereinbelow the following observation in the aforesaid judgment which reads thus:it appears to me difficult to hold that this was the intention of ..... as such and the challenge being confined to a lease deed, the suit was properly valued based upon the annual rental of the property, i.e. rs. 1,200/- per annum. in support of this contention, mr. kuldip singh has relied upon two single bench judgments of punjab high court and delhi ..... rights in the property concerned. the petitioners- plaintiffs were seeking the declaratory reliefs about their ownership as well as possession to the extent of their 1/ 2 share in the property and also the relief that the mutations entered with respect to the property based upon the lease deed be declared ..... no. 2 in his capacity as kardar/manager. for ready reference and for facility of easy understanding of the import of the issue involved, i reproduce hereinbelow the relevant extracts of the prayer part of the aforesaid plaint, of course shorn of all unnecessary details. it reads thus:suit for .....
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