IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 1714/2024 in Cr. Appeal No. 223/2024 Reserved on: 30.05.2025 Decided on: 06.06.2025 _____________________________________________________ Lal Singh …..Applicant. Versus State of Himachal Pradesh .…Respondent. _____________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? _____________________________________________________ For the applicant: Mr. Yashveer Singh Rathore and Mr. Prashant Sharma, Advocates. For the respondent: Mr. I.N. Mehta, Senior Additional Advocate General with Mr. Pawan Kumar Nadda, Additional Advocate General. Sushil Kukreja, Judge. This order shall dispose of an application filed by the applicant-appellant under Section 389(2) of the Code of Criminal Procedure (for short “Cr. P.C.”) seeking suspension of sentence awarded by learned Special Judge, Fast Track Court (POCSO), Mandi, H.P., vide judgment of conviction 30.03.2024 and order of sentence dated 12.04.2024 in Case No. 121/2020 (Old No. 11/2020), whereby the applicant was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of 1 Whether reporters of Local Papers may be allowed to see the judgment? 1 Rs. 5,000/- under Section 452 of IPC and under Section 10 of the POCSO Act, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000/-. 2. Learned counsel for the applicant-appellant contended that the statement of the victim is not reliable, as she did not disclose the occurrence immediately to her cousin, with whom she had family relations and under normal circumstances, it is highly improbable that she won’t disclose incident to her cousin. He further contended that the applicant/appellant has been falsely implicated by the father of the child victim and the case of the prosecution is false and fabricated, as cousin of the child victim (PW-7) has not supported the case of the prosecution. He also pointed out contradictions in the testimonies of child victim (PW-2) and her mother (PW-4). Lastly, he contended that the applicant is behind the bars for the last about 14 months and since there is every likelihood of the appeal being allowed, his sentence deserves to be suspended during the pendency of the present appeal 3. On the other hand, learned Senior Additional Advocate General for the respondent-State contended that the applicant does not have good arguable case in his favour and he is not entitled to be released on bail during the pendency of the appeal 2 as he has committed a serious offence upon the child victim and he has been proved guilty of committing a heinous crime after a full-fledged trial. 4. I have heard 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 case of the prosecution is that on 09.12.2019 at about 5:00 p.m., the child victim was walking on the lintel of her house. In the meantime, the accused, who is uncle (taya) of child victim, came there, followed her to the kitchen, caught hold of her and asked her to give kiss and when she resisted, the accused caught hold of her head and pulled her towards himself and forcibly tried to kiss her. On this, the child victim pushed him away and told him that she would complain against him to her parents and thereafter, she ran out of the house towards the house of her aunt, but the accused followed her to the house of her aunt and left only after noticing her cousin on the lintel. 6. After hearing the learned counsel for the parties and also after going through the entire evidence on record, which has been considered prima facie for the purpose of adjudicating the instant application, this Court is of the opinion that the 3 applicant/appellant has made out a case for suspension of sentence imposed upon him. The Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai Vs. State of Gujrat( 1999) 4 SCC 421 has held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the Appellate Court liberally unless there are exceptional circumstances. The relevant portion of the aforesaid judgment is reproduced as under: “3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.” 7. In the case on hand, the maximum sentence of imprisonment awarded to the applicant/appellant is five years and he had already undergone incarceration for a period of one year and two months. The instant appeal pertains to the year 2024 and 4 the same is not likely to be taken up for hearing in the near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant. Moreover, during trial the applicant was on bail and never misused the liberty so granted to him. 8. Hence, keeping in view the facts and circumstances of the case and the principles laid down by Hon'ble Supreme Court in Bhagwan Rama Shinde Gosai’s case (supra), this Court is of the opinion that it is a fit case for suspension of sentence. Accordingly, it is ordered that the substantive sentence imposed upon the applicant/appellant, vide judgment of conviction dated 30.03.2024 and order of sentence dated 12.04.2024, passed by learned Special Judge, Fast Track Court (POCSO), Mandi, H.P., shall remain suspended, till final disposal of the instant appeal and the applicant, who is presently lodged in Model Central Jail, Nahan, District Sirmour, H.P., shall be released on bail forthwith, subject to his 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 depositing the fine amount, if not already deposited, undertaking therein to appear in the Court as and when directed and in the event of the dismissal of the appeal, the applicant will surrender before the Court to undergo sentence, if any, imposed 5 by the Court. 9. 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. ( Sushil Kukreja ) Judge 6th June, 2025 (raman) 6 Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e289 8117bfa738990a0ea7ba, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b8498 3689d027cb645c9bb134, CN=VIRENDER BAHADUR Reason: I am approving this document Location: Date: 2025.06.06 14:30:56+05'30' Foxit PDF Reader Version: 2023.2.0 VIRENDER BAHADUR