1971 INSC 0291
                                                Dhondey and Others

                                                           Vs

                                                  The State of U. P.

                                         Criminal Appeal No. 80 of 1971

                                          (K. S. Hegde, A. N. Grover JJ)

                                                      07.05.1971

                                                     JUDGMENT

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,
PW 3, an Ahir. PW 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 PW 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 I when he came back to his house at about 9.00 p.m. on that day he found
his wife in the company of PW 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 appellant 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 PW 4 Maula. PW 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 PW 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.
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