//
archives

creativity

This tag is associated with 3 posts

Evidence Act, 1872-Section 32 Clause (5)-Date of birth-Proof of-Horoscope-Evidentiary value of-Held : Horoscope is a weak piece of evidence to prove age of a person and cannot be relied upon unless its authenticity is proved by cogent evidence-Cannot be given primacy over the school leaving certificate-Service Law. At the time of appointment as Patwari, respondent disclosed his date of birth to be 1.10.34. On a complaint, an enquiry was conducted and it was found that his actual date of birth was 25.11.31. Thereupon, Deputy Commissioner dismissed him from service. He unsuccessfully preferred appeal before Commissioner. Thereafter, Respondent filed suit for declaration that the correct date of birth is the one recorded in service book i.e. 1.10.34 and in support submitted his horoscope. Trial Court dismissed the suit holding that there was no ground to interfere with the orders of Deputy Commissioner. First appellate court allowed the appeal accepting the date of birth as mentioned in the horoscope. High Court dismissed the Second appeal on the ground that no substantial question of law was involved. In appeal to this court, appellant contended that school register and the connected records were produced which showed that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first appellate court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934.- Allowing the appeal, the Court HELD : 1. The school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court. The High Court was, therefore, not justified in dismissing the Second Appeal by observing that there was no substantial question of law involved. [764-D-E] 2. Respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has not been explained as to how varying dates remained and why no steps were taken to get the school records corrected. On enquiry, the school leaving certificate was found to be forged one. There was no effort to reconcile the discrepancy in the so-called horoscope and the school record as taken note of by the Trial Court. The first Appellate Court took a different view without any plausible reason. [762-G-H; 763-B] 3. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause (5) Evidence Act, 1872, must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the school leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was not correct, which was not discharged. [763- E-F, C-D] Ram Narain Vallia v. Monee Bibi, ILR 9 Cal. 613; Mst. Biro v. Atma Ram, AIR (1937) PC 101 and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak, ILR 97 Cal. 849, relied on. 4. The statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative, is more authentic evidence under Section 32 Clause (5) unless it is established that it is inherently improbable. The time of one’s birth relates to the commencement of one’s relationship by blood and a statement therefore of one’ age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5). Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the need of a particular situation. Entires in the school register and admission form regarding date of birth constitute good proof of age. [763-G-H, 764-A, B-C] Uttam Chandra v. State of Rajasthan, [1982] 2 SCC 202, relied on. Atul Nanda, A.A.G. for the State of Punjab, Arun K. Sinha for the Appellant. Nidhesh Gupta, Vinod Shukla and Ms.S. Janani, for the Respondent.- 2005 AIR 1868, 2005(2 )SCR758 , 2005(3 )SCC702 , 2005(3 )SCALE173 , 2005(3 )JT220

CASE NO.: Appeal (civil) 1730 of 2005 PETITIONER: State of Punjab RESPONDENT: Mohinder Singh DATE OF JUDGMENT: 14/03/2005 BENCH: ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 22477/2003 ARIJIT PASAYAT, J.   Leave granted. Appellant-State calls in question legality of the judgment rendered … Continue reading

IN THE SUPREME COURT OF UGANDA -On 26th March 2001 the appellant, her husband Bagaya Wilber (PW2) , her co-wife and their children went early in the morning to dig in their garden. At about 7:30 a.m. PW2 told the children who included the deceased to go back home and prepare to go to school. The appellant followed them. The deceased did not want to go to school that day and pretended he was ill but soon forgot and started playing. This angered the appellant, who had previously received a report that the deceased had stolen shs. 300/= from the neighbourhood. -In 1970 the Penal Code was amended and “grievous harm” was taken out of the definition of malice aforethought. We think that if the appellant had been charged before that law was amended, she would have safely been convicted of murder because there is enough evidence to show that she deliberately burnt the deceased and therefore intended to do grievous harm to him or had knowledge that her action would probably cause grievous harm. However, on the basis of the evidence presented a reasonable doubt remains that her conduct, strange, cruel and outrageous as it was, was actuated by an intention to “exterminate” the deceased, to use the word of the learned trial judge. The evidence that was accepted by court that she herself cooled off the fire, allowed the deceased to get away from the scene, carried the deceased on a bicycle to the hospital and stayed with him until he died must be considered in her favour and consequently create doubt about her intention to cause the death of the deceased. -In the result her appeal succeeds. We quash the conviction for murder and set aside the sentence of death. Instead we convict her of manslaughter contrary to section 187 and 190 of the Penal Code Act. We shall hear submissions in mitigation before passing sentence.

    THE REPUBLIC OF UGANDA   IN THE SUPREME COURT OF UGANDA AT KAMPALA (CORAM: ODOKI, CJ; TSEKOOKO; KATUREEBE; TUMWESIGYE; KISAAKYE; JJSC.) CRIMINAL APPEAL NO: 15 OF 2009 BETWEEN       NAKISIGE KYAZIKE::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT     AND   UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (An appeal from the judgment of the Court of Appeal at Kampala (Before Engwau, Twinomujuni and Nshimye, … Continue reading

service matter payment of back wages = The parties having agreed to a solution, we see no reason why the same cannot be made a basis for disposal of this appeal in modification of the order passed by the High Court.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2708 of 2012 (Arising out of S.L.P. (C) No.21197 of 2010)   Vismay Digambar Thakare …Appellant Versus Ramchandra Samaj Sewa Samiti & Ors. …Respondents     J U D G M E N T     T.S. THAKUR, J.   1. Leave … Continue reading

Blog Stats

  • 2,897,035 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com