Himachal Pradesh High Court
_____________________________________________________ vs State Of Himachal Pradesh on 18 June, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP No. 1688 of 2025 in
Cr. Appeal No. 104 of 2024
Decided on: 18.06.2025
_____________________________________________________
Chet Ram
.....Appellant/applicant
Versus
State of Himachal Pradesh
......Respondent/non-applicant
_____________________________________________________
Coram
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
Hon'ble Mr. Justice Sushil Kukreja, Judge
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Whether approved for reporting?
_____________________________________________________
For the applicant: Mr. Karan Kapoor, Advocate.
For the non-applicant/State: Mr. Anup Rattan, Advocate General
with Mr. Ramakant Sharma, Mr.
Navlesh Verma, Ms. Sharmila Patial,
Mr. Sushant Kaprate, Additional
Advocates General, and Mr. J.S.
Guleria, Deputy Advocate General.
Sushil Kukreja, Judge. (Oral)
This order shall dispose of application, filed by the
applicant/appellant Devi Ram, under Section 430 of The Bharatiya
Nagarik Suraksha Sanhita, 2023, seeking suspension of sentence
awarded by the learned Additional Sessions Judge (I), Shimla,
District Shimla, H.P., in Sessions Trial No. 20-S/7 of 2019, vide
judgment of conviction dated 23.12.2023 and order of sentence
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Whether reporters of Local Papers may be allowed to see the judgment?
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dated 26.12.2023, for the commission of offences punishable
under Sections 302, 341 & 323 of the Indian Penal Code (IPC) and
releasing him on bail.
2. The learned Counsel for the applicant-appellant
contended that the applicant-appellant is absolutely innocent and
has been falsely implicated in this case. He further contended that
the family members of the applicant are facing acute financial
hardships on account of his long incarceration. He also contended
that the learned trial Court has not appreciated the fact that the
deceased was brought to IGMC, Shimla by the applicant/accused
himself and when the deceased was transferred to PGI,
Chandigarh, the applicant-accused was with his wife to save her.
He submitted that the applicant has already undergone sentence
of more than six years and six months and 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.
3. Per contra, the learned Additional Advocate General
contended that the appellant-applicant is not entitled for
suspension of sentence, as he has committed a heinous crime and
the learned Trial Court had found him guilty. It is further contended
that after the judgment of conviction, there is no presumption of
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innocence in favour of the applicant-appellant and the instant
application, being devoid of merits, deserves to be dismissed.
4. We have heard the learned counsel for the
applicant/appellant as well as learned Additional Advocate General
and have also gone through the material available on record.
5. It is pertinent to mention here that on 14.05.2025, the
appeal preferred by the applicant-appellant against the impugned
judgment of conviction was admitted. The applicant-appellant
preferred the instant application seeking his release till disposal of
the main appeal.
6. Before adverting to the rival contentions raised by the
learned counsel for the appellant/applicant as well as learned
Additional Advocate General for the non-applicant/State, it would
be beneficial to refer to the settled legal position, to the effect that
when the applicant-appellant is convicted by the competent
Criminal Court, the initial presumption of innocence is no more
available to him.
7. 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
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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 v. State of Maharashtra (2005 (5) SCC 281)”
8. In Preet Pal Singh v. State of U.P. and Anr. reported
in (2020) 8 SCC 645, the Hon’ble Supreme Court of India held that
for grant of post-conviction bail to a convict under Section 389 of
Code of Criminal Procedure, there has to be strong and compelling
reasons and such strong and compelling reason must be recorded
in the order granting bail. The relevant para of the aforesaid
judgments reads as under:
“35. There is a difference between grant of bail under
Section 439 CrPC in case of pre-trial arrest and
suspension of sentence under Section 389 CrPC and
grant of bail, post conviction. In the earlier case,
there may be presumption of innocence, which is a
fundamental postulate of criminal jurisprudence, and
the courts may be liberal, depending on the facts and
circumstances of the case, on the principle that bail
is the rule and jail is an exception, as held by this
Court in Dataram Singh v. State of U.P. (2018 3 SCC
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22). However, in case of post-conviction bail, by
suspension of operation of the sentence, there is a
finding of guilt and the question of presumption of
innocence does not arise. Nor is the principle of bail
being the rule and jail an exception attracted, once
there is conviction upon trial. Rather, the court
considering an application for suspension of
sentence and grant of bail, is to consider the prima
facie merits of the appeal, coupled with other factors.
There should be strong compelling reasons for grant
of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the order
granting bail, as mandated in Section 389(1) CrPC.”
9. In (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC
724, it was held that the principle of bail being the rule and jail
being an exception cannot be attracted, once there is conviction
upon trial. The relevant para of the aforesaid judgment reads as
under:
“10. At this stage, we will refer to the decision of a two-
judge Bench of this Court in Preet Pal Singh v. State
of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC
645 : (2020) 3 SCC (Cri) 897] where Indira Banerjee,
J., speaking for the Court, observed as follows : (SCC
p. 655, para 35)
“35. There is a difference between the grant
of bail under Section 439 CrPC in case of
pre- trial arrest and suspension of sentence
under Section 389 CrPC and the grant of
bail, post- conviction. In the earlier case
there may be a presumption of innocence,
which is a fundamental postulate of criminal
jurisprudence, and the courts may be
liberal, depending on the facts and
circumstances of the case, on the principle
that bail is the rule and jail is an exception,
as held by this Court in Dataram Singh v.
State of U.P. [Dataram Singh v. State of U.P.,
(2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675]
However, in case of post-conviction bail, by
suspension of operation of the sentence,
there is a finding of guilt and the question of
presumption of innocence does not arise.
Nor is the principle of bail being the rule and
jail an exception attracted, once there is
conviction upon trial. Rather, the court
considering an application for suspension
of sentence and grant of bail is to consider
the prima facie merits of the appeal, coupled
with other factors. There should be strong
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compelling reasons for grant of bail,
notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the
order granting bail, as mandated in Section
389(1) CrPC.”
10. It has further been laid down by the Hon’ble Supreme
Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6
SCC 123 that while deciding the application for suspension of the
sentence, the Court should consider whether the applicant has a
fair chance of acquittal. The relevant para of the aforesaid
judgment is extracted hereunder:
“”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 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
7Court 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.”
11. Taking into consideration the position of law, as can be
gathered from various judgments of the Supreme Court, it is very
clear that discretion at the time of considering the plea of the
accused for suspension of sentence pending final hearing of
appeal has to be exercised judiciously and not as a matter of
course as once the conviction is recorded, the presumption of
innocence is no longer available to the appellant. A perusal of
Section 430 of BNSS would show that suspension of sentence
during pendency of appeal is not the absolute right of the convict.
The discretion to suspend the sentence vests in the court and it is
required to be exercised judicially keeping in view all facts and
circumstances and the nature of offence. The Court has to
exercise this discretion with utmost care and caution, balancing
one’s right and liberty on one hand and the interest of the society
on the other.
12. In the instant case, the nature of allegations levelled
against the appellant-applicant are very serious and the learned
trial Court had found him guilty for committing murder of his wife.
The learned Trial Court also observed that the applicant-accused
had beaten his wife and caused injuries by striking her head on
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wall as well as by giving blows on other parts of her body. The
learned counsel for the applicant-appellant has pointed out some
contradictions in the statements of the prosecution witnesses,
which, according to him, casts a serious doubt upon the case of
the prosecution. However, the contention raised by the learned
counsel for the applicant-appellant cannot be accepted at this
stage, as the same cannot be gone into in detail at the stage of
deciding the present application for suspension of sentence.
Whether these contradictions in the testimonies of the prosecution
witnesses are so glaring to affect the core of the prosecution case,
can only be examined at the stage of final hearing. In Om Prakash
Sahni‘s case (supra), Hon’ble Supreme Court has clearly held
that 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,
which would not be a correct approach.
13. In view of the aforesaid discussion and keeping in
mind, the nature of conviction and sentence imposed by the
learned Trial Court, we feel our-self persuaded to hold that the
applicant/ appellant/convict, at this stage, has miserably failed to
carve out a strong case for suspension of sentence and release
him on bail. The application for suspension of sentence and
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release of the applicant-appellant on bail, therefore being
misconceived is dismissed and stands disposed of accordingly.
14. 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
June 18, 2025
(VH)