# Udho and another v. State of U.P

- **Citation:** (2000) 3 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udho-and-another-v-state-of-u-p-38980
- **Pages:** 6

## Text

INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
8
petitioner submitted a reply on 29.4.98.
Enquiry officer was appointed on 1.5.98.
The enquiry officer wrote a letter to the
petitioner on 14.5.98 that in case petitioner
wants to say anything in defense he may
say so in writing so that enquiry
proceedings be completed. The petitioner
submitted his reply on 16.5.98 stating that
he has already submitted his reply to the
charge sheet and it may be treated as his
reply. He has nothing more to say.
Thereafter, the enquiry officer completed
the enquiry proceedings without fixing any
date for evidence or for examination of
witnesses. He submitted his report on
21.5.98. The letter dated 14.5.98 by the
enquiry officer any reply of the petitioner
dated 16.5.98 did not absolve the enquiry
officer
from
holding
the
enquiry
proceedings,
in
accordance
with
the
principles of natural justice. The record
produced by standing counsel establishes
that no date was fixed by the enquiry
officer after letter dated 14.5.98 was
replied by petitioner on 16.5.98. The
charges against the petitioner were factual.
They were denied by the petitioner.
Therefore, it was incumbent for the
enquiry
officer
to
have
examined
witnesses in support of the charges and
record finding that they were proved. It
was obligatory to afford opportunity of
hearing to petitioner to defend the charges.
He was required to fix dates for holding
enquiry proceedings. Even if the petitioner
would not have appeared the charges could
be held proved only after examination of
witnesses and production of record to
support the allegations. In absence of any
date fixed by the enquiry officer for
holding enquiry proceedings, the entire
enquiry proceedings were vitiated. They
were carried out in violation of principles
of
natural
justice.
The
disciplinary
authority too after receiving the report of
the enquiry officer neither gave a copy of
the enquiry report to the petitioner nor
issued any show cause to the petitioner and
passed the order of dismissal on 29.5.98.
The entire enquiry proceedings and the
dismissal order passed by the respondents
on the basis of such an enquiry report
cannot be upheld.

4. For the reasons stated above, the
writ petitioner succeeds and is allowed.
The impugned dismissal order dated
29.5.98 passed by respondent no. 2
annexure-16 to the writ petition is quashed
with all consequential benefits of service
to the petitioner. The respondents are
directed to reinstate the petitioner in
service and pay his entire arrears of salary
within a period of two months from the
date a certified copy of this order is
produced before respondent no. 2.

The petitioner shall be entitled to his
costs.
Petition Allowed.

$33(//$
$33(//$7( -85,6',&7,21
7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$' $35,/
'$7(' $//$+$%$' $35,/
%()25(
%()25(
7+( +21·%/( 55. 75,9(', -
7+( +21·%/( 55. 75,9(', -
7+( +21·%/( 86 75,3$7+, -
7+( +21·%/( 86 75,3$7+, -

&ULPLQDO $SSHDO 1R RI

8GKR DQG DQRWKHU
«$SSHOODQWV
9HUVXV
6WDWH RI 83
«5HVSRQGHQWV

&RXQVHO IRU WKH $SSHOODQWV
6KUL 3. %LVDULD
6KUL 1. 6D[HQD
6KUL 6% 6LQJK
6KUL 5. *XSWD
6KUL *6 &KDWXUYHGL
3All] Udho and another V. State of U.P.
9
&RXQVHO IRU WKH 5HVSRQGHQW
$*$

,QGLDQ 3HQDO &RGH 6 UHDGZLWK
60XUGHU FRQYLFWLRQ EDVHG RQ RUDO
WHVWLPRQ\ RI D VLQJOH H\H ZLWQHVV ZKR
ZDV QHLWKHU ZKROO\ UHOLDEOH QRU ZKROO\
XQUHOLDEOH
1R
FRUURERUDWLRQ
RI
KLV
WHVWLPRQ\ HLWKHU E\ GLUHFW FLUFXPVWDQWLDO
RU PHGLFDO HYLGHQFH &RQYLFWLRQ KHOG
LOOHJDO
+HOG
)URP WKH DERYH PDWHULDO GLVFUHSDQFLHV LQ
WKH HYLGHQFH RI 1DWKX 5DP 3: KLV
SUHVHQFH RQ WKH VSRW EHFRPHV GRXEWIXO
DQG
KH
FDQQRW
EH
WUHDWHG
DV
ZKROO\
UHOLDEOH ZLWQHVV ,Q FDVH KLV HYLGHQFH
GRHV QRW IDOO LQ VHFRQG FDWHJRU\ KH PD\
EH
WUHDWHG
LQ
WKLUG
FDWHJRU\
DQG
FRUURERUDWLRQ KLV WHVWLPRQ\ ZDV UHTXLUHG
WR EDVH FRQYLFWLRQ RI WKH DSSHOODQWV %XW
WKHUH LV QR FRUURERUDWLRQ RI KLV WHVWLPRQ\
HLWKHU E\ GLUHFW FLUFXPVWDQWLDO RU PHGLFDO
HYLGHQFH 7KH FLUFXPVWDQFHV RI WKH FDVH
DQG PHGLFDO HYLGHQFH GR QRW FRUURERUDWH
WKH WHVWLPRQ\ RI WKH ZLWQHVV DQG LQ WKHVH
FLUFXPVWDQFHV ZH DUH RI WKH YLHZ WKDW WKH
VROH WHVWLPRQ\ RI 1DWKX 5DP 3:
ZDV QRW VXIILFLHQW WR EDVH WKH FRQYLFWLRQ
RI WKH DSSHOODQWV 3DUD
&DVH /DZ GLVFXVVHG
$,5 6&

By the Court

1. This appeal has been preferred
against the judgement and order dated
20.9.1980
passed
by
5th
Additional
Sessions Judge, Hamirpur in Sessions Trial
No. 259 of 1979 convicting the appellants
Udho and his son Mathura under Section
302 read with Section 34 I.P.C. and
sentencing them to undergo imprisonment
for life.

2. The prosecution case, briefly
narrated was that appellant Udho was real
brother of Govind, father of Babulal
(P.W.1) and Ballu, father of Nathu Ram
(P.W.2). Smt. Genda Rani (25) deceased
was the wife of Nathu Ram P.W. 2 .
Mathura appellant is the son of Udho
appellant.
There
was
some
dispute
regarding agriculture land in between the
appellants and Nathu Ram (P.W.2) Udho
appellant wanted to grab the land of Nathu
Ram (P.W.2) and he had also taken
possession over the entire land of Nathu
Ram and Govind, father of Babu Lal
(P.W.1). When Nathu Ram demanded his
land from Udho appellant he used to threat
to kill him. Quarrel often took place
between the deceased and wife of Udho
appellant. Prior to three days of occurrence
again a quarrel had taken place between
Genda rani deceased , the wife of Udho
appellant and the latter had told that he
deceased would get everything settled
within three days.

3. In the afternoon of 11.10.1979
Nathu Ram (P.W.2) and his wife Genda
Rani deceased had gone to Kachhar near
the Bhairo Nala of village Parchha
Kachhar, P.S. Jaria, District Hamirpur to
collect grass. At about 5.00 P.M. they were
scrapping grass on the mend of their field.
Babu Lal (P.W.1) was also scrapping grass
near them. In the mean time appellant
Udho, armed with a Kulhari and appellant
Mathura armed with pharsa, came there.
Observing them Nathu Ram (P.W.2) and
Genda Rani deceased started running.
Udho appellant asked Mathura to catch
them hold. While Smt. Genda Rani
deceased was inside the Nala, Udho and
Mathura
appellants
started
inflicting
injuries on her with pharsa and Kulhari.
Nathu Ram (P.W.2) and babu Lal (P.W.1)
raised alarm but the appellants after killing
Genda Rani ran away towards village.
Nathu Ram (P.W.2) and Babu Lal (P.W.1)
came near the deceased and found her
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
10
dead. Thereafter, they came to their house,
arranged bullock cart and went to P.S.
Jaria where Nathu Ram (P.W.2) lodged an
oral report (Ext. Ka-9) at 00.30 hrs. Chik
report (Ext.Ka-9) was prepared by Head
Moharrir
Lala
Ram
who
made
an
endorsement of the same at G.D. report
(Ext. Ka-10) and registered a case against
the appellants under Section 302 I.P.C..

4. The investigation of the case was
taken up by Sri Shaukat Ali (P.W.4) the
then Sub-Inspector, P.S. Jaria. He reached
the spot on 12.10.1979 at 6.00 A.M.
appointed punchas and conducted inquest
of the dead body of the deceased and
prepared inquest report (Ext.Ka-2) and
others relevant papers (Ext. Ka. 3 and Ka4). He took out the clothes from the body
of the deceased and prepared recovery
memo (Ext.Ka-5) and Raj Narain for
escorting
it
to
the
mortuary.
The
Investigating Officer interrogated Babu
Lal (P.W.1) and Nathu Ram (P.W.2) on
the spot. He inspected the place of
occurrence and prepared site plan (Ext.Ka6). The I.O. also took into possession
blood stained and simple earth from the
spot, sealed it in separate containers and
prepared recovery memos (Ext. Ka-7 and
Ka-8). He also interrogated the witnesses
of inquest and searched the accused but
they were not available.

5. Autopsy on the dead body of the
deceased was conducted on 13.10.1979 on
2.30. P.M. by Dr. A.K. Srivastava (P.W.3)
who found incised wounds, abrasions and
contusion on the person of deceased and
cause of death due to hemorrhage, as a
result of ante mortem injuries. The Doctor
prepared post morttem report (Ext. Ka-1).

6. The remaining investigation of the
case was conducted by Sri Lal Bahadur
Verma who on completion of investigation
submitted charge sheet (Ext. Ka-11)
against the appellants.

7. The prosecution in support of its
case examined Babu Lal (P.W.1), Nathu
Ram
(P.W.2,),
Dr.
A.K.
Srivastava
(P.W.3), Shaukat Ali, I.O. (P.W.4),
Constable
Mohar
Lal
(P.W.5)
and
Constable Jawahar Lal (P.W.6). Babu Lal
(P.W.1) and Nathu Ram (P.W.2) were
witnesses of fact while evidence of
remaining witnesses was formal in nature.
The appellants did not adduce any
evidence.

8. The learned Additional Sessions
Judge on considering the evidence of the
prosecution held that prosecution had
successfully proved the guilt of the
appellants and accordingly convicted and
sentenced them as mentioned above.

9.
We
have
heard
Sri
G.S.
Chaturvedi,
learned
counsel
for
the
appellants and the learned A.G.A. and
have gone through the evidence on record.

10. Dr. A.K. Srivastava (P.W.3) who
conducted autopsy on the dead body of the
deceased found that the deceased was aged
about 25 years and had died two days ago.
There were following ante mortem injuries
on her person:-

1.
Incised wound 17 cm x 4 cm on left
side of face, extending from left angle of
mouth to left side of neck. Fracture of
lower jaw of left side. Clots present.

2.
Incised wound 17 cm x3 cm on left
side of face extending from left angle of
mouth to left side of neck. Fracture of
lower jaw of left side and over lapping
injury no. 1. Clots present.
3All] Udho and another V. State of U.P.
11
3.
Contusion 7 cm x3 cm III size on the
occipital region. Congestion present on
cutting.

4.
Incised wound 16.5 cm x 1 cm x skin
deep, on back side aspect of left shoulder
joint. Clots present.

5.
Incised wound 9 cm x 6 cm x skin
deep, just below injury no. 4. Congestion
present, on cutting.

6.
Abrasion 5 cm x 1.2 cm on right side
of chin. Congestion present, on cutting.

7. Abrasion 3 cm x 1 cm on right wrist
joint on inner aspect, congestion present
on cutting.

11. On internal examination the
Doctor
found
membranc
slightly
congested. Brain was soft and pulpy.
Pleura, right lung and left lung were
slightly congested. Stomach and small
intestine were empty and large intestine
full. The cause of death was due to
haemorrhage.

12. Nathu Ram (P.W.2) stated that
the appellants had taken possession over
his land and when he demanded back his
land, they became annoyed. But in his
cross examination he stated that ancestral
land was partitioned and he got 1/3rd share.
In consolidation operation separate chaks
were allotted to him, Udho and Govind
Das. The above chaks were allotted with
their consent and all the three brothers
were cultivating their own chaks. He
further stated that Sumer, brother of his
grand father had 8 bighas chak out land,
which he had given to Udho. He and
Govind Das filed objection before A.C.O.
and appeal before S.O.C., but lost. He had
no enmity with the appellants and no
quarrel had taken place between them
within two and half years. It is true that the
witness stated that prior to three days of
the occurrence quarrel had taken place
between the deceased and wife of Udho,
appellant. But according to evidence of the
witness, appellants had no strong motive to
commit the murder of the deceased, as
quarrel between two ladies was not of
serious nature.

13. On the manner of occurrence and
complicity of the appellants in the murder
of the deceased, the prosecution had relied
on testimony of Babu Lal (P.W.1) and
Nathu Ram (P.W.2). It is to be considered
whether the prosecution had successfully
proved the guilt of the appellants.

14. Babu Lal (P.W.1) had not
supported
the
prosecution
case
and
according to his evidence he had not seen
the murder of the deceased and came to
know about it at 8.00 P.M. Therefore, his
testimony is of no avail. There remains
sole testimony of Nathu Ram (P.W. 2) the
husband
of
the
deceased.
The
law
regarding admissibility of testimony of
single witness is settled and the guilt of an
accused person may be proved even by
testimony of a single witness.

15. The Supreme Court in the case of
Vadively Thevar Vs. State of Madras,
A.I.R. 1957, S.C. 614 categorised the oral
testimony of a single witness which are as
below:-

(1)
Wholly
reliable,
(2)
wholly
unreliable and (3) neither wholly reliable
nor wholly unreliable and further held that
in the first category of proof, the Court
should have no difficulty in coming to its
conclusion either way - It may convict or
may acquit on the testimony of a single
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
12
witness, if it is found to be above reproach
or
suspicion
of
interestedness,
incompetence or subordination. In the
second category, the Court equally has no
difficulty in coming to its conclusion. It is
in the third category of cases, that the
Court has to be circumspect and has to
look
for
corroboration
in
material
particulars by reliable testimony, direct or
circumstantial.

16. In view of the above settled law
we have to consider whether the sole
witness Nathu Ram (P.W.2) is wholly
reliable, wholly unreliable or neither
wholly reliable nor wholly unreliable.

17. Nathu Ram (P.W.2) stated that at
the time of occurrence he and his wife
Smt. Genda Rani, deceased were scrapping
grass on the mend of their Juar field
situated towards north of Bhairo nala. In
his cross examination he stated that his
wife was scrapping grass with a Khurpi
and had also taken a chaddar for collecting
grass. She had scrapped one bundle of
grass and had tied it in chaddar. He was
also having Khurpi and a net for collecting
gross. That he had also scrapped one
bundle grass. On arrival of appellants he
and his wife started running leaving
Khurpi and bundles of grass on the spot
and the I.O. had taken into possession the
above articles. But the I.O. stated that he
did not find above things on the spot.
There is no explanation from the side of
prosecution as to how the abovearticles i.e.
Khurpi and bundles of grass were removed
from the spot.

18. Nathu Ram (P.W.2) further stated
that when the appellants came near his juar
field where he and the deceased were
scrapping gross, both started running
towards village. He managed to cross the
nala but the deceased was surrounded by
the appellants and he was observing from a
distance of 40 paces that appellants were
inflicting Kulhari and Pharsa blows on the
deceased. His above conduct appears
highly improbable as he did not attempt to
save his wife and in case he had attempted
to save his wife he must have sustained
some sort of injuries. It appears that in
order to explain the absence of injuries on
his person the witness developed a story
that he ran ahead and crossed the nala.

19. According to evidence of Nathu
Ram
(P.W.2)
Udho
appellant
was
inflicting Kulhari blows and Mathura
appellant was inflicting Pharsa blows on
the deceased. The medical evidence shows
that the deceased had sustained four
incised wounds of the dimensions of (1) 17
cm x4 cm.(2017 cm x3 cm. (3) 16.5 cm x
1 cm and (4) 9 cm x 6 cm. The dimensions
of above incised wounds show that all
were caused by one weapon. No doubt
dimension of injury no. 5 was 9 cm x 6 cm
but the above dimension differed from
injuries no. 1,2 and 4 because it was on
bonny part of left shoulder joint. The
difference in the dimension was due to its
seat i.e. part of the body which it hit and
not due to weapon. Thus, it is clear that all
the incised sounds were caused by one
person and not by two persons as stated by
Nathu Ram (P.W.2).

20. From the above material
discrepancies in the evidence of Nathu
Ram (P.W. 2) his presence on the spot
becomes doubtful and he cannot treated as
wholly reliable witness. In case his
evidence does not fall in second category,
he may be treated in third category and
corroboration
of
his
testimony
was
required
to
base
conviction
of
the
appellants. But there is no corroboration of
3All] Lachman Deo V. District Judge, Nainital and others
13
his
testimony
either
by
direct,
circumstantial or medical evidence. The
circumstances of the case and medical
evidence do not corroborate the testimony
of the witness and in these circumstances
we are of the view that the sole testimony
of Nathu Ram (P.W.2) was not sufficient
to base the conviction of the appellants.

21. The learned Sessions Judge, thus,
erred in placing reliance on the sole
testimony of the Nathu Ram (P.W.2).
There being no reliable evidence on
record,
the
appellants
were
wrongly
convicted. The appeal, therefore, succeeds.

22. The appeal is, accordingly,
allowed. Conviction and sentence of the
appellants under section 302 read with
Section 34 I.P.C. is set aside and they are
acquitted
of
the
said
offence.
The
appellants are on bail granted by this court.
Their bail bonds are cancelled and sureties
are discharged. They need not surrender.
 Appeal Allowed

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

/DFKPDQ 'HR VRQ RI 6UL .XQGDQ /DO
«3HWLWLRQHU
9HUVXV
'LVWULFW -XGJH 1DLQLWDO
 RWKHUV
5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 5DMHVK 7DQGRQ
&RXQVHO IRU WKH 5HVSRQGHQW
6&.

83 8UEDQ EXLOGLQJ UHJXODWLRQ RI OHWWLQJ
UHQW DQG HYLFWLRQ $FW ± VHFWLRQ ±
 EE FKDULWDEOH ,QVWLWXWLRQ ± *DQGKL
$VKUDP
±
H[HPSWHG
IURP
RFWUDL
WHUPLQDO +RXVH 7D[ %RQXV ,QFRPH DQG
6DOH
7D[
±
$VKUDP
HVWDEOLVKHG
IRU
ZHOOIDUH RI WKH SXEOLF DW ODUJH
+HOG
3ODLQWLIIV LV D UHJLVWHUHG VRFLHW\
,WV
0HPRUDQGXP
RI
DVVRFLDWLRQ
GRHV
QRW
SURYLGH WKDW LW KDV EHHQ HVWDEOLVKHG IRU
WKH EHQHILW RI LWV PHPEHUV RU LWV DFWLYLWLHV
DUH FRQILQHG WR JLYH DQ\ SURILW WR WKH
PHPEHUV RI WKH *DQGKL $VKUDP
,WV
REMHFW FKDUDFWHU DQG DFWLYLWLHV FOHDUO\
SRLQW RXW WKDW LW LV D SXEOLF FKDULWDEOH
LQVWLWXWLRQ
,Q YLHZ RI WKH HPHPSWLRQ
JUDQWHG E\ 6HFWLRQ EE LI $FW 1R
RI WKH SHWLWLRQHU FDQQRW FODLP WKDW
WKH SURYLVLRQV RI WKH VDLG $FW LV DSSOLFDEOH
WR WKH EXLOGLQJ LQ TXHVWLRQ SDUD
&DVH ODZ GLVFXVVHG
 $&
 FK
$,5 6&
$,5 6&
$,5 6&

By the Court

1. This Writ petition is directed
against the judgment of respondent no.1
whereby the revision was allowed and the
suit filed by the plaintiff respondent no.3
been decreed.

2. Briefly stated the facts are that the
plaintiff. Sri Gandhi Ashram, a registered
society, filed Suit No.11 of 1996 in the
court of Judge Small Causes for recovery
of arrears of rent, ejectment and damages
against the petitioner with the allegations
that the plaintiff is a public charitable
institution and the provisions of U.P.
Urban Buildings (Regulation of Letting,
Rent and Eviction ) Act,1972 (in short 'the
Act') were not applicable. The petitioner
was a tenant of the premises in dispute at
Rs.24.50 per month. A notice dated