1 CGHC010001592019 2026:CGHC:31035 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 8 of 2019 Vinod Dewangan S/o Kunjilal Dewangan Aged About 31 Years R/o Post Office Road, Thanapara, Champa, Police Station- Champa, District- Janjgir- Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through Police Station- Champa, District- Janjgir- Champa, Chhattisgarh., District : Janjgir-Champa, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Rohan Sharma, Advocate For Respondent(s) : Dr. Smt. Richa Pandey, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 21/07/2026 1. In pursuance of the bailable warrant issued by this Court for securing presence of the appellant before this Court, the appellant along with his counsel is present and with the consent of both the parties, the case is heard finally. 2. 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 17.12.2018 passed by the Sessions Judge, District Janjgir SANTOSH KUMAR SHARMA Digitally signed by SANTOSH KUMAR SHARMA Date: 2026.07.30 16:01:18 +0530 2 Champa (C.G.) in Sessions Trial No. 38 of 2018, wherein the said Court convicted the appellant under Section 308 of IPC and sentenced him to undergo RI for 7 years and to pay fine of Rs.50,000/-, in default of payment of fine, to undergo further RI for 2 years. 3. The case of the prosecution, in brief, is that victim (PW-7) lodged FIR (Ex. P-9) bearing Crime No. 56 of 2018 at Police Station – Janjgir Champa on 16.02.2018 against the appellant alleging that the accused who is her husband has beaten her in intoxication condition and when she objected the same, then the accused with intention to commit murder has thrown her from terrace, as a result of which she sustained injuries and she became unconscious due to injuries caused to her. The victim was admitted in the hospital on 07.02.2018. Doctor (PW-3) examined the victim has found the following injuries in her report (Ex.P-6) as under:- (i) stitched lacerated wound near left eyebrow 3 cm. (ii) hemorrhage over left conjuncture 1x1/2 cm, black contusion below left eye 2x1cm. (iii) two molar tooth of upper jaw last side absent no bleeding. (iv) Stitched laparotomy scar over abdomen center 4 inch both flanks 2 stitched. (v) stitched scar over left thigh upper end 2 cm lower end 2 cm rod was inserted. (vi) Healed abrasion over right great toe 1x1 cm, caused by hard and blunt object within 15 days. Injury No. 1, 2 and 6 are simple in nature. For other injuries she is referred to dental surgeon orthopedic and her surgeon at CIMS Bilaspur. 4. On the basis of FIR, a criminal case under Section 308 of IPC was registered against the appellant on 16.02.2018. The prosecution after completion of investigation and collection of material has submitted the charge sheet before the Judicial Magistrate First Class, Champa, who 3 committed the case to the Court of Sessions Judge, Janjgir Champa for trial in accordance with law. 5. In order to bring home guilt of the appellant, the prosecution has examined as many as 11 witnesses namely – Yuvraj Patel (PW-1), Gomti Dewangan (PW-2), Dr. Manish Shrivastava (PW-3), Dr. Sujit Pahari (PW-4), Dashrath Kumar (PW-5), Mohammad Abid (PW-6), Victim (PW-7), Satyabhama Chakraborthy (PW-8), Amit Kumar Verma (PW-9), Kamaldas Mahant (PW- 10), Dr. R. Bhaskar (PW-11) and also exhibited documents from Ex. P/1 to Ex. P/40. Statement of accused/appellant has been recorded under Section 313 Cr.P.C., in which he has denied the allegations leveled against him and pleaded innocence and false implication. The appellant did not examine any witnesses in his support. 6. Learned trial Court has framed the charges for commission of offence under Section 308 of the IPC after appreciating the evidence and material available on record, vide its judgment dated 17.12.2018 sentenced the appellant 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 19.08.2019 granted suspension of sentence and released the appellant on bail, he remained incarceration about 1 year and six months. 7. Learned counsel for the appellant would submit that the treating doctor has not given any definite opinion that the injury cause to the victim was sufficient to cause death, therefore, no offence under Section 308 is made 4 out. He would further submit that there is no intention of the appellant to commit offence only in intoxication condition and due to sudden provocation the said offence has been committed by the appellant. He would further submit that during trial the appellant remained incarceration and even after conviction he remained in jail about 1 year and six months and would pray for reducing the jail sentence to the period already undergone by him. 8. On the other hand, learned counsel for the State supporting the impugned judgment would submit that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant, as such, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed. 9. I have heard learned counsel for the parties and perused the material available on record including the impugned judgment with utmost circumspection. 10. From the submissions made by the learned counsel for the parties, the point emerged for determination are;- (i) Whether the prosecution is able to prove the case against the appellant beyond reasonable doubt. (ii) Whether the prayer of the appellant for reducing the sentence to the period already undergone by him can be considered in view of the facts and circumstances of the case? Finding on point no.1. 11. From the statement of the victim and medical report Ex.P-3 submitted by PW-3 who has examined the victim on 16.02.2018 it is quite vivid that injuries might be caused by hard and blunt object to the victim. Injuries No 5 1, 2 and 6 are simple in nature. For other injuries No. 3, 4 and 5 the victim was referred to dental surgeon/ orthopedic at CIMS Bilaspur and the victim was examined before the Apollo Hospital Bilaspur wherein no definite opinion has been given by the doctors whether injuries were grievous in nature or not. The victim was also examined by Dr. Amit Kumar Verma (PW-9) Sr. consultation of Apollo Hospital Bilaspur who has informed that the injuries were grievous and fracture was noticed at femur bone and spleen was ruptured and after operation it was removed from stomach and the victim was capable of making statement. This witness has further deposed that if she was thrown away from the roof injures may be caused because of this reason. 12. In light of above evidence, now this Court is examining whether the prosecution is able to prove the case against the appellant beyond reasonable doubt and for that this Court has to extract Section 308 IPC which reads as under:- “308. Attempt to commit culpable homicide.—Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has com- mitted the offence defined in this section”. 13. From bare perusal of Section 308 IPC for attracting the said offence the prosecution should prove that the accused has intention to commit such 6 offence or should have knowledge that the said act may cause death, then only he will be guilty of culpable homicide not amounting to murder. 14. Section 308 of the IPC has come up for consideration before the Hon’ble Supreme Court in the case of Bishan Singh and another vs. State1 wherein Hon’ble Supreme Court has held in para 11 as under: “11. Before an accused can be held to be guilty under Section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be any doubt whatsoever that such an intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity. Although overt- act had been attributed against each of the accused who were having lahtis, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm, which was not the vital part of the body”. 15. From the said position of law and taking into consideration the evidence brought on record by the prosecution, it is quite vivid that the prosecution is unable to prove that the accused has any intention to commit such offence or has knowledge that the act of throwing the victim from the roof may cause death thus the prosecution is unable to prove the case beyond reasonable doubt against the appellant for commission of offence under Section 308 IPC. But the prosecution through her medical evidence as well as the statement of the victim recorded before the trial Court has clearly proved that the injuries caused to the victim were grievous hurt as defined in Section 320 of the IPC. Section 320 IPC reads as under:- The following kinds of hurt only are designated as “grievous”:— Firstly- 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. 1 (2007) 13 SCC 65 7 Fifthly — Destruction or permanent impairing of the powers of any member or joint. Sixthly — Permanent disfiguration of the head or face. Seventhly — Fracture or dislocation of a bone or tooth. Eighthtly — 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. 16. From perusal of Section 320 IPC, it is quite vivid, that fracture falls within the seventhly kinds of hurt as defined in Section 320 IPC and as per the medical report (Ex. P-11) submitted by Dr. Amit Kumar Verma (PW-9), it is quite vivid, that the prosecution has proved beyond reasonable doubt that the accused has caused grievous hurt to the victim, therefore, he is liable to be convicted for the offence under Section 326 of the IPC instead of Section 308 of the IPC as the prosecution is unable to prove beyond reasonable doubt that the appellant has any intention or knowledge to commit such offence. Accordingly, point No.1 is answered in favour of the appellant by recording a finding that the prosecution is unable to prove its case beyond reasonable doubt for conviction under Section 308 of the IPC but the prosecution has proved its case for conviction under Section 326 of the IPC against the appellant as such the appellant is convicted under Section 326 IPC instead of Section 308 IPC. Finding on point no.2. 17. From the evidence brought on record by the prosecution that the appellant has not intended to kill the victim in the intoxication condition and he has thrown away the victim from the terrace. This Court has issued bailable warrant to the appellant on 15.06.2026 for his appearance before this Court on 21.07.2026 and in pursuance of bailable warrant issued by this Court the appellant along with his wife appeared before this Court and have 8 submitted that they are living together happily and there is vast development in the attitude of the appellant, as he has already gotten rid of consuming liquor and if the appellant is again sent to jail, his family life may adversely be affected, thus it has been prayed for reducing the sentence to the period already undergone by the appellant as he has remained incarceration about 1 year and six months. 18. The State opposes the submission and would pray for rejection of this prayer also. 19. Now this Court has to examine in such facts and circumstance whether mitigating factors are available on record to reduce the sentence to the period already undergone by the appellant. 20. The Hon’ble Supreme Court in the case of Ehsaan vs. State of National Capital Territory of Delhi reported in 2026 INSC 720 has also considered the mitigating factor while imposing the sentence in following manner which is as under;- 6.4 When a sentence is imposed on an offender, it is done so with tri fold purpose i.e. punitive, deterrent and protective. The overall objective is to rid the society of criminal proclivity. The same is done by ensuring that the sentence imposed is proportional to the offence or in other words not overly influenced by the possibility of reformation and instead, striking a judicious balance between the interest of the victim, society and the accused, after following the due process of law. We have considered a number of other judgments also inter-alia Allauddin Mian v. State of Bihar12; Navas v. State of Kerala13; Sevaka Perumal v. State of T.N14; and Parsuram v. State of M.P.15. The following aspects reveal themselves when viewed from the lens of imposition of sentence. It must ;- (a) Be in accordance with the nature and gravity of the crime; (b) Adequately protect the interest of the society; (c) Take into account the deterrent purpose of punishment; (d) Consider the motive behind the crime, if any; (e) Give due weight to the conduct of the accused; (f) Examine whether the crime in question was pre-meditated or not; 9 (g) Keep in view the age of the accused and whether he has engaged in any similar offence in past for which he has been duly convicted; Account for the number of victims of the offence; (i) Not consider the religion, race, caste or creed of the offender as a factor; (j) Consider the possibility of reformation of the accused. It is the duty of the State to establish that the same does not exist; and (k) The abuse of trust or misuse of personal relationship, if any The facets identified by us above are illustrative and not exhaustive. A holistic view of the entire case must be taken in the attending facts of each case. Considering all these factors among others, the foremost duty of the Court is to assess the evidence in a given case; imposing just and adequate punishment upon the accused. 21. Considering the submission made by counsel for the appellant and also considering the fact that the appellant remained in incarceration during trial as well as after conviction about 1 year and six months and also considering the fact that the incident took place in the year 2018 and more than 8 years have been elapsed, now he is residing with the victim happily and also considering the fact that on account of sudden provocation the offence has been committed and thereafter no such incident has been placed on record by the prosecution therefore, the appellant is able to meet out mitigating circumstances for reducing the sentence to the period already undergone by him. Accordingly, sentence is reduced to the period already undergone by the appellant. Accordingly, point No.2 is answered in favour of the appellant. 22. Consequently, this criminal appeal is partly allowed to the extent indicated above. The appellant is reported to be on bail and his bail bonds shall continue for further period of six months in view of Section 481 of BNSS, 2023. 10 23. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Narendra Kumar Vyas) Judge santosh