Neutral Citation No. ( 2025:HHC:22031 ) 1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MPs No. 1437, 1759 & 1760 of 2025 in Cr. Appeal No.90 of 2024 Reserved on: 07.07.2025 Decided on: 09.07.2025 _____________________________________________________ 1. Cr. MP No. 1437 of 2025: Rajesh Khachi …..Appellant/applicant. Versus State of Himachal Pradesh ……Respondent/non-applicant. 2. Cr. MP No. 1759 of 2025: Rajesh Khachi & others …..Appellants/applicants. Versus State of Himachal Pradesh ……Respondent/non-applicant. 3. Cr. MP No. 1760 of 2025: Rajesh Khachi & others …..Appellants/applicants. 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 applicants: Mr. Ajay Kochhar, Senior Advocate, with Mr. Anubhav Chopra and Ms. Swati Sharma, Advocates. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Navlesh Verma, Mr. Sushant Keprate, Ms. Sharmila Patial, Additional Advocates General, Mr. J.S. Guleria, Deputy Advocate General and Mr. Raj Negi, Deputy Advocate General. 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2025:HHC:22031 ) 2 Sushil Kukreja, Judge. This order shall dispose of applications filed by the applicants/appellants under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of sentence awarded by learned Additional Sessions Judge-II, Shimla, District Shimla, H.P., vide impugned judgment of conviction, dated 01.12.2023, and order of sentence dated 02.12.2023, passed in Sessions Trial No. 20-S/7 of 2023/21, for the commission of offences punishable under Sections 302, 341, 323, 325 read with Section 34 of the Indian Penal Code (for short “IPC”) and Section 27-54-59 of the Arms Act, 1959. 2. The learned Senior Counsel for the appellants/applicants contended that the appellants/applicants 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. He has further contended that appellant/applicant, Rajesh Khachi has already undergone sentence of more than four years and appellants/applicants Rohan Khachi and Raman Khachi have undergone sentence of more than four years and five months against the life imprisonment. He has also contended that the appellants/applicants have no criminal history and they are willing to abide by all the conditions, as this Court may deem just and Neutral Citation No. ( 2025:HHC:22031 ) 3 proper in the facts and circumstances of the case. The appellants/applicants are the permanent residents of District Shimla having roots in the society and there is no apprehension of their absconding from the course of justice. Lastly, it is prayed that the father as well as both the sons are behind the bars and there is no one to take care of other members of the family, therefore, keeping in view the peculiar facts and circumstances of the instant case, the instant applications may be allowed and during the pendency of the appeal filed by the appellants/applicants, the sentence awarded 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 appellants/applicants 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 appellants and the instant applications, being devoid of merits, deserve to be dismissed. 4. We have heard the learned Senior Counsel for the applicants/appellants as well as learned Senior Additional Advocate General and have also gone through the material Neutral Citation No. ( 2025:HHC:22031 ) 4 available on record. 5. It is pertinent to mention here that on 12.03.2024 a Division Bench of this Court admitted the appeal preferred by the applicants/appellants against the impugned judgment of conviction. The applicants/appellants preferred the instant applications seeking their release till disposal of the main appeal. 6. The perusal of the record reveals that the appellants/applicants were convicted and sentenced by the learned Trial Court as under: Sr. No. Name of the convict Convicted under Section Sentence imposed Fine amount 1. Rajesh Khachi 302 IPC Rigorous imprisonment for life Rs.25,000/- -do- 325 IPC Rigorous imprisonment of three years Rs.10,000/- -do- 323 IPC Rigorous imprisonment of three months Rs.1,000/- -do- 341 IPC Rigorous imprisonment of one month Rs.1,000/- -do- 27-54-59 of the Arms Act Rigorous imprisonment of three years Rs.10,000/- 2. Rohan Khachi 302 IPC Rigorous imprisonment for life Rs.25,000/- -do- 325 IPC Rigorous imprisonment of three years Rs.10,000/- -do- 323 IPC Rigorous imprisonment of three months Rs.1,000/- -do- 341 IPC Rigorous imprisonment of one month Rs.1,000/- -do- 27-54-59 of the Arms Act Rigorous imprisonment of three years Rs.10,000/- 3. Raman Khachi 302 IPC Rigorous imprisonment for life Rs.25,000/- -do- 325 IPC Rigorous imprisonment of three years Rs.10,000/- -do- 323 IPC Rigorous imprisonment of three months Rs.1,000/- -do- 341 IPC Rigorous imprisonment of one month Rs.1,000/- Neutral Citation No. ( 2025:HHC:22031 ) 5 -do- 27-54-59 of the Arms Act Rigorous imprisonment of three years Rs.10,000/- 7. Before adverting to the rival contentions raised by the learned Senior Counsel for the applicants/appellants as well as learned Senior 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 appellant/accused is convicted by the competent Criminal Court, the initial presumption of innocence is no more available to him. In case 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 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 29 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 Neutral Citation No. ( 2025:HHC:22031 ) 6 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.” 8. 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 Neutral Citation No. ( 2025:HHC:22031 ) 7 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 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.” 9. 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. 10. In Vijay Kumar vs. Narendra & others, (2002) 9 SCC 364, the Hon'ble apex Court reversing an order of suspension passed in a case where the appellant was convicted under section 302/34 of the IPC, held as under : Neutral Citation No. ( 2025:HHC:22031 ) 8 "10. .......... The principle is well settled 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 the 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." … … … … 11. 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. 12. 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 there has to be careful consideration of the relevant Neutral Citation No. ( 2025:HHC:22031 ) 9 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)" 13. 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, it is only in exceptional cases that the benefit of suspension of sentence can be granted. It has been observed as under: "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)." 14. 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 'the Code' 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: Neutral Citation No. ( 2025:HHC:22031 ) 10 "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 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." 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 CrPC, 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 appellants are serious and they have been convicted by the learned trial Court for the commission of the offence under Neutral Citation No. ( 2025:HHC:22031 ) 11 Sections 302, 341, 323, 325 read with Section 34 IPC and Section 27-54-59 of the Arms Act. The learned Senior Counsel for the appellants/applicants contended that the appellants/applicants have got a very good arguable case on merits, as there are various discrepancies and contradictions in the statements of the prosecution witnesses. He has further contended that there are many reasonable hypothesis drawn from the evidence on record, pointing out towards innocence of the applicants. He has further contended that the appellants/applicants are languishing behind the bars for the last more than four years and disposal of the instant appeal is likely to take time as such the sentence inflicted upon the applicants deserves to be suspended. However, the contentions raised by the learned counsel for the appellants/ applicants cannot be accepted at this stage, as the same cannot be gone into in detail at the stage of deciding the present applications for suspension of sentence and will be dealt with at the time of final disposal of the appeal. This Court cannot reappreciate 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 Hon’ble Apex Court. This is not an exceptional case where the benefit of suspension of sentence can be granted to the Neutral Citation No. ( 2025:HHC:22031 ) 12 appellants/applicants. 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 applicants/appellants at this stage. The applications for suspension of sentence are, therefore, dismissed and stand disposed of accordingly. 18. Since the appeal pertains to the year 2024 and already stands admitted, the appellants are at liberty to move appropriate application(s) for early hearing of the appeal. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 9th July, 2025 (virender)