Dhondey and ors. Vs. the State of U.P. - Court Judgment |
| Criminal |
| Supreme Court of India |
| May-07-1971 |
| Criminal Appeal No. 80 of 1971 |
| A.N. Grover and; K.S. Hegde, JJ. |
| AIR1972SC1273; 1972CriLJ871; (1972)4SCC729; 1971(III)LC725(SC) |
| Indian Penal Code (IPC) - Sections 34, 326 and 335 |
| Dhondey and ors. |
| The State of U.P. |
| A.P.S. Chauhan and; Hiralal Jain, Advs |
| O.P. Rana, Adv. |
| From the Judgment and Order dated Septmber 3, 1970 of the Allahbad High Court in Criminal Appeal No. 342 of 1968 |
.....is or was tenant in section 7 would include the positive declaration as well as the negative declaration. under section 7, which is pari materia with section 70 of the bombay tenancy act, the mamlatdar is conferred with power to decide the question after holding an enquiry whether a particular person is or is not a tenant of the disputed property. the jurisdiction of the mamlatdar under section 7 is not confined to cases where the question is whether a person is or was a tenant in respect of the disputed property. when the legislature has provided that the landlord can seek a negative declaration in respect of the category of person mentioned in section 4(1) it cannot conclusively lead to the conclusion that in other cases, namely, where the question arises as to whether a person is or is not a tenant, the mamlatdar is not conferred with any power to grant negative declaration that the concerned person is not a tenant in respect of the disputed property. accordingly, the mamlatdar has the jurisdiction to declare a negative declaration, that is to say, a particular person is not a tenant under section 7 - the appellant caught hold of him and cut his nose as well.k.s. hegde, j.1. the appellants have been convicted under section 326 read with section 34 of the indian penal code and for that offence, each one of them has been sentenced to suffer rigorous imprisonment for four years.2. the prosecution case was that the first appellant who is a chamar was in the service of khelari p.w. 3 & ahir, p.w. 3 developed intimacy with the wife of the first appellant.this was resented by the first appellant because of that enmity on january 14, 1967 at about 9.00 p.m. the appellants caught hold of kamla, the wife of the first appellant and cut her nose. on hearing her cries p.w. 3 came near the house of the first appellant. the appellant caught hold of him and cut his nose as well.3. the appellants other than the first appellant denied their presence at the time of the occurrence. according to appellant no. 1 when he came back to his house at about 9.00 p.m. on that day he found his wife in the company of p.w. 3 and on seeing them together, he completely lost his temper, caught hold of both of them and cut their noses both the courts below have come to the conclusion that all the appellants had joined together in cutting the noses of kamla and khelari.....
K.S. Hegde, J.
1. The appellants have been convicted Under Section 326 read with Section 34 of the Indian Penal Code and for that offence, each one of them has been sentenced to suffer rigorous imprisonment for four years.
2. The prosecution case was that the first appellant who is a Chamar was in the service of Khelari P.W. 3 & Ahir, P.W. 3 developed intimacy with the wife of the first appellant.This was resented by the first appellant Because of that enmity on January 14, 1967 at about 9.00 P.M. the appellants caught hold of Kamla, the wife of the first appellant and cut her nose. On hearing her cries P.W. 3 came near the house of the first appellant. The appellant caught hold of him and cut his nose as well.
3. The appellants other than the first appellant denied their presence at the time of the occurrence. According to appellant No. 1 when he came back to his house at about 9.00 P.M. on that day he found his wife in the company of P.W. 3 and on seeing them together, he completely lost his temper, caught hold of both of them and cut their noses Both the Courts below have come to the conclusion that all the appellants had joined together in cutting the noses of Kamla and Khelari and we agree with that finding. But coming to the circumstance under which their noses were cut, we are more inclined to accept the version given by the first appellant. His version is not only a probable one but is also fully corroborated by the testimony of P.W. 4 Maula, P.W. 4 admitted during the course of cross-examination that when he came to the scene of occurrence on hearing cries, he saw both Kamla and Khelari inside the house and they came out from the house sometime later. It is further seen from the evidence that Kamla told him on that night that when she and Khelari were inside her house, the appellants came and cut their noses. Both the Courts below have completely overlooked the significance of the evidence of P.W. Maula.
4. In the result we partly allow the appeal set aside the conviction of the appellant Under Section 326/34, IPC but convict them Under Section 335/34, IPC and sentence each of them to suffer rigorous imprisonment for two years. The appeal is allowed to the extent mentioned above. In other respects it is dismissed.