Himachal Pradesh High Court

Cr. Mp No. 479/2025 In vs State Of Himachal Pradesh on 7 May, 2025

Bench: Tarlok Singh Chauhan, Sushil Kukreja

                                               1              ( 2025:HHC:13051 )


     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                 Cr. MP      No. 479/2025 in
                                 Cr. Appeal No. 585/2024 &
                                 Cr. MP No. 361/2025 in

                                 Reserved on: 01.05.2025
                                 Decided on: 07.05.2025

_____________________________________________________ (1) Cr. MP No. 479/2025 in Cr. Appeal No. 585/2024

Gurnam Singh @ Ganja .....Appellant/applicant.

Versus State of Himachal Pradesh ......Respondent/non-applicant.

(2) Cr. MP No. 361/2025 in Cr. Appeal No. 586/2024

Rajinder Kumar @ Kala .....Appellant/applicant.

Versus State of Himachal Pradesh ......Respondent/non-applicant.

_____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes.

_____________________________________________________ For the applicant(s): Ms. Sheetal Vyas, Advocate. For the non-applicant/State: Mr. Ramakant Sharma, Mr. Navlesh Verma and Ms. Sharmila Patial, Additional Advocates General.

Sushil Kukreja, Judge.

This order shall dispose of these applications filed by

the applicant(s)/appellant(s) under Section 430 of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short "BNSS") seeking

suspension of sentence awarded by the learned Additional

Sessions Judge, Nalagarh, District Solan, H.P., vide impugned

Whether reporters of Local Papers may be allowed to see the judgment?

2 ( 2025:HHC:13051 )

judgment of conviction, dated 21.09.2024 and order of sentence

dated 01.10.2024, passed in Sessions Trial No. 15-NL/7 of 2015,

for the commission of offences punishable under Sections 302,

452, 506, 201 read with Section 34 of the Indian Penal Code (for

short "IPC") and releasing them on bail.

2. The learned Counsel for the applicant(s)/appellant(s)

contended that the applicants/appellants have got a very good

arguable case on merits, as the evidence relied upon by the

learned Trial Court is shaky, thus not tenable in the eyes of law.

She has further contended that alleged recovery of weapon of

offence is highly doubtful and no independent witness has

supported the same. She further contended that there are major

contradictions regarding the place of recovery of weapon of

offence and the prosecution has failed to connect the same with

the alleged crime. She also contended that the medical evidence

has not corroborated the version of the prosecution witnesses qua

assault with danda. PWs 2, 5 and 8 though stated that the

deceased was assaulted with danda, however, PW-7 Dr. Raman,

who examined the deceased stated that there was no injury on the

person of the deceased, which could be caused by the blunt

weapon. She further contended that the applicant(s)/appellant(s)

are languishing behind the bars for the last more than eight years 3 ( 2025:HHC:13051 )

and disposal of the instant appeal will take considerable time,

therefore keeping in view the peculiar facts and circumstances of

the instant case, the instant application may be allowed and

during the pendency of the appeal filed by the

applicant(s)/appellant(s), the sentence awarded by the learned

Trial Court be suspended in the interest of justice and fair play.

3. Per contra the learned Additional Advocate General

contended that the applicant(s)/appellant(s) are not entitled for

suspension of sentence, as they have committed heinous crime of

committing the murder and the learned Trial Court found them

guilty. It is further contended that after the judgment of conviction,

there is no presumption of innocence in favour of the

applicant(s)/appellant(s) and the instant applications, being devoid

of merits, deserve dismissal.

4. We have heard the learned counsel for the

applicant(s)/appellant(s) as well as learned Additional Advocate

General and have also gone through the material available on

record.

5. The perusal of the record reveals that the

applicant(s)/appellant(s) were convicted under Sections 302, 452

read with Section 34, 506 and 201 IPC by the learned Additional

Sessions Judge, Nalagarh, District Solan, H.P., vide judgment 4 ( 2025:HHC:13051 )

dated 21.09.2024 and sentenced, vide order of sentence dated

01.10.2024, passed in Sessions Trial No. 15-NL/7 of 2015. The

applicant(s)/appellant(s) were sentenced to undergo rigorous

imprisonment for life under Section 302 IPC read with Section 34

IPC and to pay fine of Rs. 2,00,000/- and in default of payment of

fine to further undergo simple imprisonment for one year. The

applicant(s)/appellant(s) were also sentenced to undergo simple

imprisonment for two years and to pay fine of Rs. 5,000/- and in

default of payment of fine to further undergo simple imprisonment

for one month under Section 452 IPC read with Section 34 IPC.

The applicant(s)/appellant(s) were further sentenced to undergo

simple imprisonment for six months and to pay fine of Rs 5,000/-

and in default of payment of fine to further undergo simple

imprisonment for one month under Section 506 IPC. The

applicant(s)/appellant(s) were also sentenced to undergo simple

imprisonment for six months and to pay fine of Rs 5,000/- and in

default of payment of fine to further undergo simple imprisonment

for one month under Section 201 IPC.

6. Before adverting to the rival contentions raised by the

learned counsel for the applicant(s)/appellant(s) as well as learned

Additional Advocate General for the non-applicant/State, it would

be beneficial to refer to the settled legal position with respect to the 5 ( 2025:HHC:13051 )

suspension of sentence in cases involving conviction under

Section 302 IPC.

7. Hon'ble Apex Court in a case titled Ramji Prasad Vs.

Rattan Kumar Jaiswal & Ors., reported as (2002) 9 SCC 366,

held that where an accused was found guilty by the trial court

under Section 302 IPC, the normal practice in such cases is not to

suspend the sentence and it is only in exceptional cases that the

benefit of suspension of sentence can be granted. The relevant

portion of the aforesaid judgment reads as under:-

"3. Absolutely no reason is shown by the learned single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial Court under Section 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted."

8. In another case titled Kishori Lal Vs. Rupa & Ors.,

reported as 2004 (7) SCC 638, it has been held that in cases

involving conviction under Section 302 IPC, it is only in exceptional

cases that the benefit of suspension of sentence can be granted,

after taking into consideration relevant factors like nature of

accusation, manner in which the crime is alleged to have been

committed, gravity of the offence and the desirability of releasing

the accused on bail after they have been convicted for committing

the serious offence of murder. The relevant observations, which

find place in Para 6, run as under :

"6. The mere fact that during the trial, they were granted bail and 6 ( 2025:HHC:13051 )

there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.

7. xxxx

8. In Vijay Kumar V. Narendra and others (2002 (9) SCC 364) and Ramji Prasad V. Rattan Kumar Jaiswal and another (2002 (9) SCC

366), it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar's case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order."

9. In State of Punjab vs. Deepak Mattu, (2007) 11 SCC

319, Hon'ble the apex Court held that mere possible delay in

disposal of the appeal and the fact that there are arguable points

may not by itself be sufficient to grant suspension of a sentence.

10. In Sidhartha Vashisht alias Manu Sharma vs. State

(NCT of Delhi), reported in 2008 (5) SCC 230, it has been

observed in paragraphs 19, 29 & 30 as under:

"19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way 7 ( 2025:HHC:13051 )

or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

17 to 28 xxx

29. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be an `innocent person' until the final decision is recorded by the superior Court in his favour.

30. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461, Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364 : JT 2004 Supp (1) SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr., (2002) 9 SCC 366 : JT 2002 (7) SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461. In the above cases, it has been observed that once a person has been convicted, normally, an appellate Court will proceed on the basis that such person is guilty.

It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302, IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted."

11. In State of Maharashtra vs. Madhukar 8 ( 2025:HHC:13051 )

Wamanrao Smarth, (2008) 5 SCC 721, the Hon'ble

apex Court referred to the parameters delineated in

Kishori Lal vs. Rupa & others, (2004) 7 SCC 638 to be

observed by the High Court while dealing with an

application for suspension of sentence and grant of bail

and reiterated the view taken in Vasant Tukaram

Pawar vs. State of Maharashtra, (2005) 5 SCC 281.

The relevant part runs as under:

"10. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail have been highlighted by this Court in many cases. In Kishori Lal v. Rupa it was observed as follows:

"4. Section 389 of the Code of Criminal Procedure, 1973 (in short "the Code") deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

The above position was reiterated in Vasant Tukaram Pawar vs. State of Maharashtra (2005 (5) SCC 281)"

12. In Anil Ari vs. State of West Bengal,

(2009) 11 SCC 363, the Hon'ble apex Court observed

that in cases involving conviction under Section 302 IPC, 9 ( 2025:HHC:13051 )

it is only in exceptional cases that the benefit of

suspension of sentence can be granted. It has been

observed as under:

"7. .........

"8. In Vijay Kumar V. Narendra and others, (2002) 9 SCC 364 and Ramji Prasad V. Rattan Kumar Jaiswal and another (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar's case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

The above position was highlighted in Kishori Lal v. Rupa and Others [2004(7) SCC 638], Vasant TukaramPawar v. State of Maharashtra [2005 (5) SCC 281] and Gomti v. Thakurdas and Ors. (2007 (11) SCC 160)."

13. In Atul Tripathi vs. State of U.P. & another, (2014) 9

SCC 177, the Hon'ble apex Court summing up the legal

parameters regarding exercise of discretionary power under

section 389(1) of Cr.P.C. stressed that the Court is required to

judiciously consider all the relevant factors including gravity of

offence and the nature of the crime. The relevant observations in

this regard run as under:

"15. To sum up the legal position:

15.1 The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. 15.2 On such opportunity being given, the State is required to file its objections, if any, in writing.

15.3 In case the public prosecutor does not file the objections in 10 ( 2025:HHC:13051 )

writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court. 15.4 The Court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release."

14. In a recent judgment by the Hon'ble Apex Court in Om

Prakash Sahni vs. Jai Shankar Chaudhary and another, (2023)

6 Supreme Court Cases 123, it has been held that once the

accused is held guilty, the presumption of innocence gets erased.

The relevant portion of the aforesaid judgment reads as under:

"23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.

24. From perusal of Section 389 of the Cr. PC, it is evident that save and except the matter falling under the category of sub-Section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre- conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the Cr. PC.

25 to 32 xxx

33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other 11 ( 2025:HHC:13051 )

words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr. PC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

... ... ... ...."

15. From the conspectus of aforesaid decisions, it is

abundantly clear that the Hon'ble apex Court has consistently

taken the view that, in cases involving conviction under Section

302 IPC, it is only in exceptional cases that the benefit of

suspension of sentence can be granted and while dealing with

question of suspension under Section 389 Cr. PC, the Court is

required to judiciously take into consideration all the relevant

factors, like gravity of offence, nature of crime, manner in which it

was committed, age, criminal antecedents of the convict and

impact of public confidence in Court. The possible delay in

disposal of the appeal and the fact that there are arguable points

may not by itself be sufficient to grant suspension of a sentence.

16. In the instant case, the nature of allegations against the

applicant(s)/appellant(s) are serious and they have been convicted

by the learned trial Court for the commission of the offence under

Sections 302, 452 read with Section 34, 506 and 201 IPC. The

learned counsel for the applicant(s)/appellant(s) contended that

the applicant(s)/appellant(s) have got a very good arguable case 12 ( 2025:HHC:13051 )

on merits, as the evidence relied upon by the learned Trial Court is

shaky, thus not tenable in the eyes of law. She has further

contended that alleged recovery of weapon of offence is highly

doubtful and no independent witness has supported the same. She

further contended that there are major contradictions regarding the

place of recovery of weapon of offence and the prosecution has

failed to connect the same with the alleged crime. She also

contended that the medical evidence has not corroborated the

version of the prosecution witnesses qua assault with danda. PWs

2, 5 and 8 though stated that the deceased was assaulted with

danda, however, PW-7 Dr. Raman, who examined the deceased

stated that there was no injury on the person of the deceased,

which could be caused by the blunt weapon. However, these

contentions raised by the learned counsel for the

applicant(s)/appellant(s) cannot be gone into in detail at the stage

of deciding the present application for suspension of sentence and

will be dealt with at the time of final disposal of the appeal. This

Court cannot re-appreciate the evidence at the stage of deciding

the applications under Section 430 of BNNS and try to pick up few

lacunas or loopholes here or there in the case of the prosecution

as held by the Honble Apex Court Court in Om Prakash Sahni's

case (supra). The learned counsel for the applicant(s)/appellant(s) 13 ( 2025:HHC:13051 )

has failed to point out any exceptional circumstances for grant of

suspension of sentence during the pendency of the appeal.

17. In view of the above discussion and keeping in mind,

the nature of conviction and sentence imposed by the learned Trial

Court, that too, after a full-fledged trial, we are not inclined to

suspend the sentence of the applicant(s)/appellant(s) at this stage.

The applications for suspension of sentence are, therefore,

dismissed and stand disposed of accordingly.

18. Since the appeals pertain to the year 2024 and already

stand admitted, the appellant(s) are at liberty to move appropriate

applications for early hearing of the appeal.