Himachal Pradesh High Court

Decided On: 07.05.2025 vs State Of Himachal Pradesh on 7 May, 2025

Bench: Tarlok Singh Chauhan, Sushil Kukreja

1 Neutral Citation No. ( 2025:HHC:13637 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP No. 951 of 2025 in Cr. Appeal No. 556 of 2024

Decided on: 07.05.2025 _____________________________________________________ Nikhil .....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? No. _____________________________________________________ For the applicant: Mr. N.S. Chandel, Senior Advocate, with Mr. Narender Singh Thakur & Mr. Vinod Gupta, Advocates.

For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, Mr. Navlesh Verma and Ms. Sharmila Patial, Additional Advocates General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocate General.

Sushil Kukreja, Judge.

This order shall dispose of application, filed by the

applicant/appellant Nikhil, under Section 430 of The Bharatiya

Nagarik Suraksha Sanhita, 2023, seeking suspension of sentence

awarded by the learned Additional Sessions Judge, Rohru, Camp

at Theog, District Shimla, H.P., dated 16.09.2024, in Sessions Trial

RBT No. 25-T/7 of 2024/2016, for the commission of offence

punishable under Section 302 of Indian Penal Code (for short

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

2 Neutral Citation No. ( 2025:HHC:13637 )

'IPC') read with Section 120-B IPC, and releasing him on bail.

2. The learned Senior Counsel for the appellant/applicant

contended that the appellant/applicant has 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.

He also contended that there are material contradictions in the

statements of the prosecution witnesses, which the learned Trial

Court has lightly brushed aside. He also contended that the

applicant has undergone sentence of nine years four months and

twelve days, as against the total awarded sentence of

imprisonment for life and the appeal is not likely to be decided in

near future, therefore, in view of the peculiar facts and

circumstances of the case, the sentence imposed upon the

appellant/application by the learned Trial Court be suspended in

the interest of justice and fair play.

3. Per contra the learned Senior Additional Advocate

General contended that the appellant/applicant is not entitled for

suspension of sentence, as the learned Trial Court found him guilty

and convicted him in a heinous crime of committing murder. It is

further contended that after the judgment of conviction, there is no

presumption of innocence in favour of the appellant/applicant and

the instant application, being devoid of merits, deserves to be 3 Neutral Citation No. ( 2025:HHC:13637 )

dismissed.

4. We have heard the learned Senior counsel for the

applicant/appellant as well as learned Senior Additional Advocate

General and have also gone through the material available on

record.

5. The perusal of the record reveals that learned

Additional Sessions Judge, Rohru, Camp at Theog, District Shimla,

H.P., vide judgment of conviction and order of sentence, dated

16.09.2024, convicted the applicant/appellant Nikhil along with

Rakshak Khachi and Nitin under Section 302 IPC read with

Section 120-B IPC and sentenced all of them to undergo

imprisonment for life and to pay fine of Rs.20,000/- each and in

default of payment of fine to further undergo imprisonment for six

months.

6. The case of the prosecution is that on 24.01.2016

accused persons, i.e., Rakshak Khachi, Nikhil (applicant herein)

and Nitin committed murder of Abhi Ram and Ablu Devi after

conspiring with each other.

7. The learned Senior Counsel for the applicant

contended that the case of the prosecution is based on

circumstantial evidence and there was no direct evidence against

the accused. He further contended that the presence of 4 Neutral Citation No. ( 2025:HHC:13637 )

applicant/appellant Nikhil on the given date, time and place was

not proved by the prosecution.

8. It is the admitted case of the prosecution that the

applicant/appellant Nikhil was not present on the spot at the time

of occurrence. The case of the prosecution itself is that accused

persons had called the deceased Abhi Ram for purchasing charas

from him. PW-31 Gauri Dutt Sharma, Deputy Superintendent of

Police, who investigated the case, admitted in his cross-

examination that during the interrogation of the accused persons, it

was unearthed that while moving towards the place of occurrence

on 24.01.2016, accused Rakshak Khachi made a call to deceased

Abhi Ram, through mobile number of accused Nikhil Chandel and

the accused persons called Abhi Ram (deceased) for purchasing

charas from him. He further admitted in his cross-examination that

as per his investigation, when the alleged incident occurred with

Abhi Ram and Ablu Devi, accused Nikhil Chandel was not present

on the spot and he was standing on a way towards the spot for

keeping a watch.

9. Thus, the aforesaid evidence on record, prima facie,

makes it clear that the applicant/appellant Nikhil Chandel had not

entered into any conspiracy with other co-accused persons to

commit the murder of Abhi Ram and Ablu Devi on 24.01.2016 5 Neutral Citation No. ( 2025:HHC:13637 )

rather he was keeping a watch by standing on the way to check, if

anybody came to the spot and to alert his co-accused Rakshak

Khachi and Nitin Verma while they had gone to the house of Abhi

Ram to purchase charas. The learned Trial Court has also noticed

in its judgment that accused Nikhil Chand kept a watch by standing

on the way to check, if anybody came to the spot and to alert his

co-accused Rakshak Khachi and Nitin Verma. Thus, prima facie, it

appears that the fact that his co-accused persons would commit

the offence of murder of Abhi Ram and Ablu Devi was not within

the knowledge of applicant/appellant Nikhil Chandel as the co-

accused persons had gone to the house of Abhi Ram to purchase

charas from him and they had told the accused Nikhil Chand to

keep a watch by standing on the way and to alert them if anybody

came to the spot. As observed earlier, as per the case of

prosecution itself, the applicant/appellant Nikhil was not present on

the spot at the time of occurrence.

10. In 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, 6 Neutral Citation No. ( 2025:HHC:13637 )

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 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."

11. In State of Maharashtra vs. Madhukar 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 7 Neutral Citation No. ( 2025:HHC:13637 )

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 v. State of Maharashtra (2005 (5) SCC 281)"

12. 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 a case

in which, ultimately the convict appears to be entitled to have an

acquittal at the hands of the 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. The

relevant portion of the aforesaid judgment reads as under:

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 xxx xxx xxx xxx xxx 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 8 Neutral Citation No. ( 2025:HHC:13637 )

looked into is something palpable. To put it in other 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..........."

13. We have applied the test of the principles

enunciated by the Hon'ble Supreme Court in the judgments

discussed hereinabove, to the facts and circumstances of

the present case, while keeping all aspects of the matter including

the nature of the offence and its possible social

implications in mind, vis-a-vis the liberty of the appellant/applicant.

In the background of the evidence available on record, the present

case cannot be said to be one of the exceptional cases in which

prayer for suspension of sentence should be refused as the

applicant/appellant Nikhil was admittedly not present on the spot at

the time of occurrence. The sentence imposed upon the

applicant is imprisonment for life and he has already undergone

incarceration approximately for a period of nine years and five

months and thus cannot be made to suffer further incarceration on

such evidence as the appeal which pertains to the year, 2024 is

not likely to be taken up for hearing in near future.

14. Hence, keeping in view the aforesaid background of

the present case, we are of the opinion that it is a fit case for bail

and suspension of sentence of imprisonment. Therefore, while

refraining to make any comment on merits of the case, the 9 Neutral Citation No. ( 2025:HHC:13637 )

substantive sentence imposed upon the applicant/appellant by

learned Additional Sessions Judge, Rohru, Camp at Theog, district

Shimla, H.P., in Session Trial RBT No. 25-T of 2024/2016, vide

judgment of conviction and order of sentence, dated 16.09.2024,

shall remain suspended till final disposal of the appeal, however,

subject to the applicants' furnishing personal bond in the sum of

Rs.50,000/- with one surety in the like amount to the satisfaction

of learned Trial Court and also subject to deposit of fine amount of

Rs.20,000/-. On furnishing the requisite bail bonds, he be

released forthwith, however, with the undertaking to appear before

this Court as and when directed and in the event of the dismissal

of the appeal, the applicant/appellant will surrender before the

Court.

15. Be it stated that any expression of opinion given in this

order does not mean an expression of opinion on the merits of the

case and the same has been given only for the purpose of

deciding the present application. The application stands disposed

of.

( Tarlok Singh Chauhan ) Judge

( Sushil Kukreja ) Judge 7th May, 2025 (virender)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL

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