Himachal Pradesh High Court
Raju vs . State Of Hp on 20 May, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Raju Vs. State of HP
Cr. Appeal No.168 of 2025
20.05.2025 Present: Mr. Arjun Lall, Advocate as Legal Aid Counsel, for
the appellant
Mr.Yashwardhan Chauhan, Senior Additional
Advocate General with Mr. Ramakant Sharma, Ms.
Sharmila Patial, Mr. Sushant Kaprate,Additional
Advocates General, Mr. J.S. Guleria and Mr. Raj
Negi, Deputy Advocates General, for the
respondent/State.
Cr. MP No.1462 of 2025
This order shall dispose of an application filed by the
applicant/appellant under Section 430 of the Bhartiya Nagrik
Suraksha Sanhita (for short 'BNSS') seeking suspension of
sentence awarded by learned Additional Sessions Judge, Kullu,
Himachal Pradesh, vide judgment of conviction and order of
sentence dated 21.10.2024, in Sessions Trial No.15 of 2020/18,
whereby the applicant/appellant was convicted under Section 376
(2) (J) of the Indian Penal (IPC) and sentenced to undergo
rigorous imprisonment for ten years and to pay fine of Rs.1,000/-
for the commission of the offence punishable under Section
376(2)(J), IPC.
2. The learned counsel for the applicant-appellant
contended that the applicant has already undergone more than
half of the sentence, i.e. seven years and three months against
the total awarded sentence of ten years. He further contended
that the appeal is likely to take considerable time for its disposal,
as such, the instant application may be allowed and the
applicant-appellant may be released on bail during the pendency
of the appeal. He also pointed out various inconsistencies and
discrepancies in the prosecution case.
3. On the other hand, learned Senior Additional
Advocate General contended that the applicant/appellant is not
entitled to be released on bail during the pendency of the present
appeal, as he has been convicted in a serious offence.
4. We have heard the learned 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 record reveals that the prosecutrix
(PW-1), in her cross-examination, admitted that there family was
having an enmity with the applicant-appellant. While appearing in
the witness box she nodded her head by saying 'yes' to the
question that Chet Ram, Thakur Dass, Keshav Ram and
Subhash had beaten the applicant-appellant on the date of
incident. Mother-in-law of the prosecutrix (PW-4) deposed that on
11.02.2018, the prosecutrix, who was deaf and dumb, told her
and her son by gestures and signs that someone from the village
had committed rape upon her, thereafter, they kept on searching the
suspect in the village and tried to get him identified from her
daughter-in-law, but she failed to identify any person at that time.
Prima facie, it appears that the learned Trial Court has
failed to appreciate the medical evidence of the victim in
its right perspective as PW-8 Dr. Dechen Wangmo has
categorically stated that the prosecutrix had taken bath and
changed her clothes twice since the incident and the clothes
allegedly worn by her at the time of incident were not brought.
She further deposed that in her opinion, there was exposure to
coitus and after receipt of forensic report from RSFL Mandi, she
gave opinion on MLC Ext. PW8/B that 'human semen was
detected on cloth and vaginal swabs of victim, hence, there is
evidence of exposure of recent coitus'. However, in her cross-
examination, she admitted that the prosecutrix was married and
the coitus was recent means that it was up to a week. She also
admitted that coitus may have been with the husband of the
victim and she could not say with whom coitus was there. Thus,
the medical opinion, prima facie, does not point to the guilt of the
applicant-appellant as the victim was a married woman and
habitual to sexual intercourse. Admittedly, no DNA test was
conducted in order to connect the accused with human semen
detected on the cloths and vaginal swabs of the victim The
medical opinion further reveals that old healed hymen tags were
present and no local injury was seen near genitalia and no injury
marks were seen anywhere on the body of the victim.
6. Admittedly, the applicant/appellant has already
undergone more than half of the sentence, i.e. 7 years, 03
months and 28 days as against the total awarded sentence of ten
years. The instant appeal is of the year 2025 and the same is not
likely to be decided in near future and there is also nothing on
record to suggest that the delay in deciding the appeal is
attributable to the applicant/appellant.
7. Therefore, in view of the entire evidence on record, we
are of the considered opinion that the substantive sentence
imposed upon the applicant/appellant, vide impugned judgment
of conviction and order of sentence dated 21.10.2024 deserves to
be suspended. Accordingly, the substantive sentence imposed
upon the applicant/appellant, vide judgment of conviction and
order of sentence dated 21.10.2024, passed by learned
Additional Sessions Judge, Kullu, H.P. shall remain suspended till
final disposal of the appeal, however, subject to the applicant's
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 the deposit of the fine amount, if not, already
deposited. On furnishing the requisite bail bonds and on
depositing the fine amount, 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.
8. Be it stated that any expression of opinion while
deposing of the instant application shall not be construed to be an
opinion expressed on the merits of the appeal, which shall be
adjudicated on its own merits.
The application stands disposed of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
May 20, 2025
(VH)
