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Nainital

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Acquitted under sec. 302 and 306 IPC – convicted under sec.304 B on interpolated letter , without prove of demand of dowry soon before the death – Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased = = ASHA & ANR. … APPELLANTS VERSUS STATE OF UTTARAKHAND … RESPONDENT = http://judis.nic.in/supremecourt/imgst.aspx?filename=40955

Acquitted under sec. 302 and 306 IPC – convicted under sec.304 B on interpolated letter ,     without prove of demand of dowry soon before the death – Apex set aside the orders of lower court and high court and acquitted the accused who are nothing but sister in laws of deceased =      … Continue reading

Sections 366, 376, 363, 506 and 342 of the Indian Penal Code (for short the IPC) whether the High Court erred in not taking into account the statement and testimony of H.L. that the respondent had raped her on several occasions and thereby acquitting him. In our opinion, the High Court committed an error of law in not considering the evidence put forward by the prosecutrix (who was less than 16 years when she was raped) and ignoring the settled position in law that if the sole testimony of the prosecutrix is credible, a conviction can Crl. Appeal No.352 of 2006 be based thereon without the need for any further corroboration. A reading of the judgment and order of the High Court indicates that it has not discussed the statement of H.L. under Section 164 of the Cr.P.C. before the Magistrate nor her testimony before the Trial Judge. On going through her statement recorded by the Magistrate, we find that it is rather detailed and the least that was expected of the High Court was to consider that statement. If it was found to be not credible, the High Court was entitled to reject it and also her testimony before the Trial Judge. But, to Crl. Appeal No.352 of 2006 completely ignore what the prosecutrix had said, merely on the basis of a handful of letters which she had written (even though she had explained the circumstances in which she had written those letters) is a rather unsatisfactory way of dealing with the entire case. 31. Normally, we would have gone through the entire evidence on record and decided whether the acquittal of Basti Ram should be sustained or not. However, in the absence of any discussion or analysis of the evidence by the High Court in first appeal, we are of the opinion that a right of appeal available to Basti Ram would be taken away if we were to consider the case on its merits without the opinion of the High Court. Additionally, for a proper appreciation of the case, it is necessary for us to have the views of the High Court on record. This is important since the High Court has reversed a finding of conviction given by the Trial Judge. 32. Under the circumstances, the more appropriate course of action would be to set aside the impugned Crl. Appeal No.352 of 2006 judgment and order passed by the High Court and remand the matter for reconsideration on merits after taking into account the entire evidence on record, including the statement and testimony of H.L. as well as the law on the subject. We do so accordingly. 33. Since the allegation of rape is of the year 1989- 1990, we request the High Court to accord high priority to the disposal of the case. 34. Appeal is disposed of.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 352 OF 2006 State of Haryana …..Appellant Versus Basti Ram …..Respondent J U D G M E N T Madan B. Lokur, J. 1. The question for our consideration is whether the High Court erred in not taking into account the … Continue reading

Arbitration Act, 1940-Sections 20 and 39(iv)-Arbitration and Conciliation Act, 1996-Sections 21 and 85(2)(a)-Application for appointment of arbitrator in terms of arbitration clause in case of dispute between parties-Trial Court holding that firm being unregistered as such application not maintainable even though applicant firm filed amendment application with regard to the same-High Court holding that since 1996 Act has come into force parties to relegate under the new Act-On appeal held : Since the arbitral proceedings commenced before coming into force of the 1996 Act, provisions of 1940 Act applicable and matter remitted to High Court-Furthermore firm must be registered at the time of the institution of the suit and not later-Also, the High Court is to consider the correctness of the order passed by trial court-Partnership Act, 1932- Section 69. Appellant-State Sugar Corporation and respondent-construction company entered into a contract. Dispute arose between the parties but the appellant did not appoint any arbitrator as per the arbitration clause in the contract. Respondent filed application under section 20 of the Arbitration Act, 1940. Civil Judge held it to be not maintainable as the respondent firm was not registered even though the respondent had admitted that it failed to make necessary averment in the plaint as regard registration of the firm inadvertently and had filed an application for amendment of the petition. Respondent then filed an appeal. High Court allowed the appeal directing that since the Arbitration and Conciliation Act, 1996 has come into force, parties are to relegate under the new Act Hence the present appeal. Appellant-State Sugar Corporation contended the application for appointment of an arbitrator was not maintainable under the 1940 Act and the 1996 Act as the respondent firm was not registered; and that in any event, the impugned judgment is unsustainable in law as the arbitral proceeding was initiated prior to coming into force of the 1996 Act. Respondent-firm contended that in a similar matter this Court directed the trial court to appoint an arbitrator in terms of arbitration clause of the contract between the parties, on remitting the matter, and as such there being a similar stipulation in the instant case, it must be acted upon. =Allowing the appeal, the Court HELD : 1.1. In the event it is found by the High Court that the Civil Judge was wrong in rejecting the application for amendment of the plaint and in fact the respondent-firm was registered under the Partnership Act, the question of throwing out the said suit on that ground would not arise. High Court would consider these questions. Further, it is true that the arbitral proceedings would not be maintainable at the instance of an unregistered firm having regard to the mandatory provisions contained in Section 69 of the Partnership Act, 1932. The firm must be registered at the time of institution of the suit and not later. [830-F-G] Delhi Development Authority v. Kochhar Construction Work and Anr., [1998] 8 SCC 559, relied on. Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR (1964) SC 1882 and Firm Ashok Traders and Anr. v. Gurumukh Das Saluja and Ors., [2004] 3 SCC 155, referred to. 1.2. Disputes and differences between the parties arose in the year 1991 and the respondent filed an application under Section 20 of the Arbitration Act, 1940 in the same year. It invoked the arbitration clause in the agreement. The arbitral proceeding was set in motion. In terms of Section 21 of the Arbitration and Conciliation Act, 1996 the arbitral proceedings in respect of a particular dispute commences on a date on which the request for that dispute to be referred to arbitration was received by the respondent. Therefore, in respect of the arbitral proceedings commenced before coming into force of the 1996 Act, the provisions of the 1940 Act would apply. Hence, the matter is remitted to High Court for afresh consideration. [831-A-B; 832-A-B] Milkfood Ltd. v. M/s. GMC Ice Cream (P) Ltd., JT (2004) 4 SC 393, relied on. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5479 of 2004. =2004 AIR 4335, 2004(3 )Suppl.SCR826 , 2004(7 )SCC332 , 2004(7 )SCALE307 , 2004(7 )JT61

CASE NO.: Appeal (civil) 5479 of 2004 PETITIONER: U.P. State Sugar Corporation Ltd. RESPONDENT: Jain Construction Co. & Anr. DATE OF JUDGMENT: 25/08/2004 BENCH: N. Santosh Hegde & S.B. Sinha JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.4459 of 2004) S.B. SINHA, J : Leave granted. This appeal … Continue reading

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