1 CGHC010163632005 2026:CGHC:30413 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 868 of 2005 Order Reserved on : 16.06.2026 Order Delivered on : 17.07.2026 • Guru @ Rahul @ Pravin Kumar Shinde, S/o Late Shri Hulasrao, Aged about 26 years, Occupation - Grain Merchant businessman, R/o Banshpara Dhamtari, P.S. City Kotwali, Dhamtari, District - Dhamtari (C.G.) ... Appellant versus • State of Chhattisgarh through PS City Kotwali, Dhamtari, District - Dhamtari (C.G.) ... Respondent For Appellant : Mr. Rahil Arun Kochar, Advocate For Respondent/State : Ms. Sonia Kuldeep, Panel Lawyer (Hon’ble Mr. Justice Narendra Kumar Vyas) C A V Judgment 1. The appellant has preferred this Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 23.11.2005 passed by Additional Sessions Judge, Dhamtari, District - Dhamtari (C.G.) in Sessions Trial No. 94 of 2003, wherein the said Court convicted and sentenced the appellant as under:- MANISH YADAV Digitally signed by MANISH YADAV Date: 2026.07.17 16:46:33 +0530 2 Conviction Sentence under Section 326 of IPC R.I. for 2 years and fine of Rs. 500. In default of fine 2 months additional R.I.. 2. The case of the prosecution, in brief, is that a Dehati Nalishi (Ex. P/6) was registered by the victim on 03.12.2002 alleging that at Nayapara, Gokulpur, Dhamtari, the complainant, Deepak Kumar Ojha, had an altercation with the accused. Following the dispute, when Deepak Ojha was on his way to home and he reached in front of his house, the accused reached there on motorcycle accompanied by two other individuals attacked the victim with a sword with intent to cause his death. The victim to save himself from the attack has blocked the attack with his hand and sustained severe injury on his elbow and a fracture also. Further case of the complainant is that the accused struck the complainant thrice with the sword. On the basis of Dehati Nalishi a FIR bearing Crime No. 609/2002 dated 03.12.2002 was registered against the appellant for commission of offence under Section 307/34 of IPC. 3. After completion of investigation and collection of material, the prosecution has submitted the charge sheet before the Chief Judicial Magistrate, Dhamtari, who committed the case to the Court of Sessions Judge, Raipur for trial in accordance with law. In order to bring home guilt of the appellants, the prosecution has examined as many as 09 witnesses namely - Kishan Lal Ojha (PW-1), Mahendra Kumar Ojha (PW-2), Deepak Kumar Ojha (PW-3), Smt. Murti Meenpal (PW-4), Krishna (PW-5), Govind (PW-6), T.R. Mahilane, Sub-Inspector (PW-7), Dr. Iqbal Parvez, (PW-8), Dujram Sonkar 3 (PW-9) and also exhibited documents from Ex. P/1 to Ex. P/13. The prosecution has seized sword vide seizure memo (Ex. P/3) and motor cycle Hero Honda bearing registration No. MP-23-MC-5076 vide Ex. P/4 were seized from the appellant. The victim was examined by Dr. Iqbal Parvez (PW-8) who has given the report (Ex. P/11) that bone of elbow was broken and there was wound in the size of 6 cm X 3 cm on the left elbow and victim was discharged on 14.12.2002 after 11 days of his admission in the hospital. 4. Statements of accused/appellant have been recorded under Section 313 Cr.P.C., in which he has denied the allegations leveled against him and pleaded innocence and false implication. He has also stated that the victim was not returning the money and has falsely implicated him. The accused abjured his guilt and to prove his innocence, the appellant in his support examined Manharan Chandrakar (DW-1) and has exhibited documents namely Sight Map (Ex. D/1), statement of Mahendra Ojha (Kishan Lal Ojha (PW-1), Mahendra Kumar Ojha (PW-2), Deepak Kumar Ojha (PW-3), Smt. Murti Meenpal (PW-4), Krishna (PW-5), Govind (PW-6), T.R. Mahilane, Sub-Inspector (PW-7), Dr. Iqbal Parvez, (PW-8), Dujram Sonkar (PW-9)Ex. D/2), statement of Deepak Ojha (Ex. D/3), statement of Smt. Murthymin Pal (Ex. D/4), statement of Krishna Sonkar (Ex. D/5), statement of Govind (Ex. D/6) and statement of Dujram (Ex. D/7). 5. Learned trial Court after appreciating the evidence and material available on record, vide its judgment dated 23.11.2005 has held that appellant has committed the offence under Section 326 of I.P.C. and 4 thereby sentenced him for the offence as mentioned in opening paragraph of the judgment. Being aggrieved and dissatisfied with the aforesaid judgment of conviction & order of sentence, instant criminal appeal has been preferred by the appellant challenging the same. This Court while admitting the instant appeal on 29.11.2005, has granted bail to the appellant. 6. Learned counsel for the appellant would submit that the appellant has been falsely implicated in this case. He would further submit that learned trial Court ought not to have convicted the appellant on the basis of evidence and there are number of omissions and contradictions in the statements of the witnesses recorded in the Court and the statement was recorded under Section 161 Cr.P.C.. 7. He would further submit that there is serious lacuna in the prosecution case and the seizure of various articles have not been proved in accordance with law. The statement of Dr. Iqbal Parvez (PW-8) makes it clear that the offence under Section 326 of IPC is not made out. Even, if the entire prosecution case is taken as it is, the appellant cannot be convicted for commission of offence under Section 326 of IPC. He would further submit that looking to the entire evidence as collected by the prosecution, the offence under Section 326 of IPC is not made out and the appellant ought to have been acquitted by the Court below. The learned trial Court on perverse finding has passed the impugned judgment which is liable to be set aside by this Court and would pray for allowing the appeal. 8. Per contra learned counsel for the State opposing the submission would submit that finding recorded by learned trial Court is legal and 5 justified and would pray for rejection of the instant appeal. 9. I have heard learned counsel for the parties and perused the material available on record with utmost circumspection. 10. From the submissions made by the learned counsel for the parties, the point emerged for determination is whether the prosecution is able to prove the case against the appellant beyond reasonable doubt and conviction of the appellant for commission of offence under Section 326 of IPC is legal and justified? 11. To appreciate the point emerged for determination, it is expedient for this Court to go through the evidence brought on record by the prosecution. The victim (PW-3) in his examination-in-chief has reiterated the facts which have been mentioned in the Dehati Nalishi (Ex. P/6) and FIR (Ex. P/7). The victim has stated in evidence that when the victim after taking his meal was going to betel shop, the appellant along with two other persons have reached there and attacked him with sword on his neck and when he attempted to rescue himself he has stopped it by his left hand, therefore, his left hand got injured. Thereafter, the has attacked on his stomach which was saved by him, thereafter, his brother has taken him to the hospital. The said evidence remained unshaken during cross- examination. On the contrary it remained affirmed as in paragraph 12 of the evidence, the victim has stated that one injury was caused on his elbow and no injury was caused in other part of the body. He has also stated that after injury he became not absolute unconscious, but, he was partially conscious and also denied that he has previous enmity with the appellant. He has also admitted that he 6 remained in the hospital for one month. The other witness, brother of victim Mahendra Ojha (PW-2) who has taken him to the hospital has also supported the case of the prosecution as narrated the incident of assault by the appellant with sword. The seizure witness Kishan Lal Ojha (PW-1) has supported the case of the prosecution. 12. Smt. Murti Meenpal (PW-4) who was an eye witness of the incident supporting the case of the prosecution has narrated the incident that appellant has assaulted the victim by sword. The said evidence remained unrebuttal through extensive cross-examination. The other witness, Govind (PW-6) has also supported the case of the prosecution. The Dr. Iqbal Parvez, (PW-8) who has examined the victim has stated that left elbow of the victim was fractured and one wound in the size of 6 cm x 3 cm was also found on the left elbow. The doctor has also examined the weapons used in the commission of offence and has stated that the injury may be caused by these weapons and also stated that shirt which was torned can be caused by the weapon used in the offfence i.e. sword, thus, he has fully supported the case of the prosecution. 13. From the aforesaid evidence, it is quite vivid that the victim has got injury and presence of the accused at the place of occurrence is not disputed by the appellant. The injured person has been cross- examined by the accused extensively by accused before the trial Court but he is unable to rebut the evidence regarding his involvement in the commission of offence. Considering the well settled position of law that an accused can be convicted on the basis of the sole testimony of the victim, provided the Court finds the 7 testimony to be credible, trustworthy and of sterling quality. The Hon’ble Supreme Court has examined the evidentiary value of injured witness in case of Balu Sudam Khalde and Another vs State of Maharashtra {2023 (13) SCC 365} wherein the Hon’ble Supreme Court has held as under :- "26. When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:- (a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded." 14. From the medical evidence as well as ocular testimony of the victim it is proved beyond reasonable doubt by the prosecution that the accused has caused injury to the victim as Deepak Kumar Ojha (PW- 3) sustained fracture on left elbow which is grievous hurt as defined in Section 320 of IPC. 15. Learned trial Court on the basis of evidence, particularly the medical evidence of Dr. Iqbal Parvez (PW-8), has recorded a finding in 8 paragraph 10 of his judgment that this evidence corroborated the evidence of victim and has also taken into consideration the seizure witnesses which proves the recovery of weapon used in commission of the offence. The learned trial Court on the basis of statement of Dr. Iqbal has given a finding that the victim got a fracture on his left elbow and the said witness on examination of seized weapon has recorded its finding that the appellant has assaulted the victim by sword. 16. Learned trial Court has also observed that the statement of the doctor on record has also been subjected to detailed cross- examination, yet the doctor's opinion remains unrebuttal. As such, there is no material on record to support a conclusion contrary to the doctor's opinion. These findings neither suffer from perversity or illegality, in fact it is based upon proper appreciation of evidence and material on record. The learned trial Court on appreciation of evidence has held that the prosecution is able to prove that there is fracture on the elbow of victim Deepak Ojha's (PW-3) due to a sword blow inflicted upon it and a bone fracture constitutes 'grievous hurt' under Section 320 (Seventhly) of the Indian Penal Code. Accordingly, it has recorded a finding that grievous hurt was caused to the body of Deepak Ojha by a sword blow which is punishable offence under Section 326 of IPC. 17. These findings of the learned trial Court are based on appreciation of evidence, consideration of law on the subject which does not warrant interference by this Court. The finding recorded by the learned trial Court regarding conviction of the appellant for commission of offence 9 under Section 326 of IPC is in accordance with law laid down by the Hon’ble Supreme Court in case of Mathai v. State of Kerala reported in (2005) 3 SCC 260, wherein the Hon’ble Supreme Court has held in paragraphs 14 to 16 as under: “14."Grievous hurt" has been defined in Section 320 IPC, which read as follows: "320 Grievous Hurt The following kinds of hurt only are designated as "grievous"- First Emasculation. Secondly.- Permanent privation of the sight of either eye. Thirdly.- Permanent privation of the hearing of either ear. Fourthly.- Privation of any member or joint. Fifthly.- Destruction or permanent impairing of the powers of any members or joint. Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth. Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits." 15. Some hurts which are not like those hurts which are mentioned in the first seven clauses, are obviously distinguished from a slight hurt, may nevertheless be more serious. Thus a wound may cause intense pain, prolonged disease or lasting injury to the victim, although it does not fall within any of the first seven clauses. Before a conviction for the sentence of grievous hurt can be passed, one of the injuries defined in Section 320 must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly. 16.The expression "any instrument which used as a weapon of offence is likely to cause death" has to be gauged taking note of the heading of the Section. What would constitute a 'dangerous weapon' would depend upon the facts of each case and no generalization can be made.” 18. Thus, the finding of the conviction under Section 326 of IPC by the learned trial Court, does not suffer from perversity or illegality warranting any interference by this Court. 19. Now this Court is examining the alternate submission made by 10 learned counsel for the appellant that the incident took place on 03.12.2002 and more than 25 years have been lapsed, the appellant has not misused the liberty granted to him and is attending the trial Court without any default, in such circumstances, he would pray for reducing the sentence to the period already undergone by him as he remained incarceration for one month and 10 days during the trial. The record of the case further demonstrates that the learned trial Court after conviction has granted bail to the appellant for securing an order of sentence from this Court and accordingly, vide order dated 29.11.2005 this Court has allowed the suspension of sentence. 20. Before adverting to the submissions, it is expedient for this Court to examine and consider what are the facts and circumstances, and the gravity of the offence to apply the principle of already undergone is being examined in terms of law laid down by the Hon’ble Supreme Court in the case of Parameshwari Vs. The State of Tamilnadu and others, [2026 INSC 164] wherein the Hon’ble Supreme Court has examined about mitigating factors and held in paragraphs 22 and 34 as under: “22. The objective of punishment is to create an effective deterrence so that the same crime/actions are prevented and mitigated in future. The consideration to be kept in mind while awarding punishment is to ensure that the punishment should not be too harsh, but at the same time, it should also not be too lenient so as to undermine its deterrent effect. 34. The misplaced understanding of various courts in treating compensation as a substitute of sentence is both a matter of concern and a practice which should be condemned. We have observed a trend amongst various High Courts wherein the sentences awarded to the accused persons by the Trial Court are reduced capriciously and mechanically, without any visible application of judicial mind. Considering the gravity of the situation as thus, we have culled out certain basic factors, which are to be kept in mind by the courts while dealing with 11 imposition of sentence, in line with the view taken by this Court in the aforementioned cases. The said factors are enunciated as below: A. Proportionality: Adherence to the principle of “just deserts” ought to be the primary duty of the courts. There should be proportionality between the crime committed and the punishment awarded, keeping in consideration the gravity of the offence. B. Consideration to Facts and Circumstances: Due consideration must be given to the facts and circumstances of the case, including the allegations, evidence and the findings of the trial court. C. Impact on Society: While imposing sentences, the courts shall bear in mind that crimes essentially impair the social fabric of the society (of which the victim(s) is/are an indispensable part) and erodes public trust. The sentence should be adequate to maintain the public trust in law and administration, however, caution should also be taken, and the Court shall not be swayed by the outrage or emotions of the public and must decide the question independently. D. Aggravating and Mitigating Factors: The courts, while deciding the sentence or modifying the sentence, must weigh the circumstances in which the crime was committed, and while doing so, the court must strike a fair balance between the aggravating and the mitigating factors.” 21. Thus, the point determined by this Court is answered against the appellant and in favour of the prosecution. 22. From the facts and considering the law, it is quite vivid that the manner in which the offence has been committed by the appellant, the prayer for reducing the sentence to the period already undergone by him, cannot be considered and accordingly, it is rejected. However, looking to the fact that the incident pertains to year 2002 and more than 25 years have already been lapsed, and the appellant is not having past criminal antecedents as prosecution is not able to place on record any criminal antecedents of the appellant, he has not misused the liberty of bail granted to him during the trial and even 12 during pendency of the appeal, therefore, I am of the view that the sentence can be reduced to 04 months for offence under Section 326 of I.P.C out of which he is entitled to get set off of one month and 10 days as he remained in incarceration during the trial as per the provisions of Section 428 Cr.P.C./Section 468 of Bhartiya Nagrik Suraksha Sanhita, 2023. 23. Consequently, the instant appeal is partly allowed to the extent indicated hereinabove. 24. From the record, it appears that the appellant is on bail and his bail bond shall stand cancelled. The appellant is directed to surrender before the trial Court on 30th September, 2026 to serve out the remaining part of the sentence awarded by this Court after set off the period already undergone by him as detailed above. If the appellant fails to surrender before the trial Court, the Police Authorities are directed to take action against him and send a compliance report to this Court. 25. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for compliance. Sd/- (Narendra Kumar Vyas) Judge Manish