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
Cr. Appeal No. 586/2024
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.
1
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
1
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.
( Tarlok Singh Chauhan )
Judge( Sushil Kukreja )
Judge
7th May, 2025
(raman)
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