Neutral Citation No. ( 2025:HHC:20676 ) 1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 1727 of 2025 in Cr. Appeal No. 346 of 2021 Decided on: 30.06.2025 ____________________________________________________ Vikaran @ Lucky …..Applicant/Appellant. Versus State of Himachal Pradesh ……Non-applicant/Respondent. ____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No. _____________________________________________________ For the applicant: Mr. N.S. Chandel, Senior Advocate, with Mr. Vinod Gupta, Advocate. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, with Mr. Navlesh Verma, Mr. Sushant Kaprate, Additional Advocates General, and Mr. Raj Negi, Deputy Advocate General. Sushil Kukreja, Judge. (Oral) This order shall dispose of application, filed by the applicant/appellant Vikaran, under Section 430 of The Bharatiya Nagarik Suraksha Sanhita, 2023, seeking suspension of sentence awarded by the learned Additional Sessions Judge-III, Kangra at Dhamashala, District Kangra, H.P., vide judgment of conviction, dated 28.09.2021, and order of sentence, dated 29.09.2021, in 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2025:HHC:20676 ) 2 Sessions Case No. 57-D/VII/2020/18, for the commission of offences punishable under Section 302 and Section 452 read with Section 34 of Indian Penal Code (for short ‘IPC’) and releasing him on bail. 2. The learned Senior Counsel for the appellant/applicant contended that the test identification parade was necessary as the assailants were strangers to the informant and the alleged eye- witness, therefore, in the absence of test identification parade, it was not safe for the learned Trial Court to have recorded the conviction of the appellant/applicant and other co-accused persons. He further contended that it has come in the statement of the alleged eye-witnesses that the names of the accused persons were disclosed to them by the police which itself is suggestive of the fact that the accused has falsely been implicated by the police. He has also contended that the learned Trial Court has completely brushed aside the fact that the alleged weapon of offence, which, as per the case of the prosecution, was thrown at the spot, did not have any blood stains on it, therefore, he submitted that the sentence imposed upon the appellant/applicant 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 appellant/applicant is not entitled for Neutral Citation No. ( 2025:HHC:20676 ) 3 suspension of sentence, as the learned Trial Court found him guilty and convicted him in a serious offence of committing murder. It is further contended that after the judgment of conviction, there is no presumption of innocence in favour of the appellant/applicant and the instant application, being devoid of merits, deserves to be dismissed. 4. We have heard the learned Senior 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 the record reveals that learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, H.P., vide judgment of conviction, dated 28.09.2021, convicted applicant/appellant Vikaran under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.20,000/-. The applicant/appellant Vikaran alongwith co- accused Shainki Sharma and Raj Kumar were also sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs. 3000/- each under Section 452 read with Section 34 IPC and in default of payment of fine to further undergo simple imprisonment for a period of six months. 6. After hearing the learned Senior Counsel for the Neutral Citation No. ( 2025:HHC:20676 ) 4 applicant/applicant, learned Senior Additional Advocate General for the respondent/State and after going through the entire evidence on record, which has been considered prima facie for the purpose of adjudicating the instant application, we are of the opinion that the applicant/appellant has made out a case for suspension of sentence imposed upon him. 7. The case of the prosecution is that on 23.09.2017, the appellant/applicant alongwith co-accused persons, namely, Shainki Sharma, Raj Kumar and Rinku in furtherance of common intention of all committed murder of one Sewa Lal. The FIR was registered on the basis of the statement of PW-10 Shri Pintu, which is Ex. PW-10/A who in his cross-examination admitted that he had mentioned the name of only one person in his statement, Ex. PW- 10/A. He further admitted that he had disclosed that the remaining persons were strangers to him and no test identification parade was conducted in his presence with respect to any person. As per this witness, no identification memo was prepared by the police inside the police station. He (PW-10) did not disclose any physical traits or identification features of any of the assailants of deceased Sewa Lal. He also admitted in his cross-examination that names of other three accused persons, except Shainky were disclosed to him by the police. Neutral Citation No. ( 2025:HHC:20676 ) 5 8. A bare perusal of the statement of this witness i.e. PW- 10, so examined by the prosecution is clearly indicative of the fact that he had only named accused Shainky in his statement under Section 154 Cr.P.C. and the appellant/applicant Vikaran Sharma was stranger to the said witness and in these circumstances test identification parade was necessary in order to ascertain his identity. Failure to establish his identity goes to the root of the matter as such the possibility of mistaken identity cannot be ruled out. 9. It is a settled law that if an accused is not named in the FIR, his identification by the witnesses in the court should not be relied upon specifically when they did not disclose name of the accused before the police but to this general rule, there may be exceptions. In the judgment rendered by the Hon'ble Supreme Court in the case of Dana Yadav @ Dahu & Ors. Vs. State of Bihar reported in AIR 2002 SC 3325, the Hon'ble Apex Court has elaborated upon the importance of test identification parade in a great detail. The Hon'ble Court observed that in case of failure to hold Test Identification Parade, identification of the accused before court, though is not inadmissible but it should not, ordinarily, form the basis of conviction unless corroborated by previous identification in test identification parade or any other evidence. Neutral Citation No. ( 2025:HHC:20676 ) 6 Relevant portion of the aforesaid judgment reads as under: "38. In view of the law analysed above, we conclude thus: (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so- called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test Identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court. (c) Evidence of identification of an accused Neutral Citation No. ( 2025:HHC:20676 ) 7 in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court. (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first Information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above." 10. We have prima facie considered the facts and evidence of present case in the light of aforesaid adjudication made by the Hon'ble Supreme Court. In this case, when no specific allegation Neutral Citation No. ( 2025:HHC:20676 ) 8 was leveled against appellant/applicant Vikaran Sharma in the FIR, then obviously it was the duty of the prosecution to prove its case beyond reasonable doubt by leading evidence of identification before the court that appellant/applicant Vikaran Sharma gave beatings to the deceased. 11. Admittedly, neither any identification parade was got conducted by the Investigating Officer nor any reliable evidence was produced before the court as to who identified appellant/applicant Vikaran Sharma. Therefore, by not conducting the test identification parade, there is a serious lapse in the investigation and the appellant/applicant has carved-out a strong case for suspension of sentence and his release on bail. 12. 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 a case in which, ultimately the convict appears to be entitled to have an acquittal at the hands of the 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. The relevant portion of the aforesaid judgment reads as under: 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 Neutral Citation No. ( 2025:HHC:20676 ) 9 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 xxx xxx xxx xxx xxx 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………..” 13. We have applied the test of the principles enunciated by the Hon’ble Supreme Court in the judgment discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the appellant/applicant. In the background of the evidence available on record, the present case cannot be said to be one of the exceptional cases in which prayer for suspension of sentence should be refused. The sentence imposed upon the applicant is imprisonment for life and he has already undergone incarceration approximately for a Neutral Citation No. ( 2025:HHC:20676 ) 10 period of more than eight years and thus cannot be made to suffer further incarceration on such evidence as the appeal which pertains to the year, 2021 is not likely to be taken up for hearing in near future. 14. Therefore, in view of our aforesaid discussion, we are of the considered opinion that the substantive sentence imposed upon the applicant/appellant, vide impugned judgment of conviction, dated 28.09.2021, and order of sentence, dated 29.09.2021 deserves to be suspended. Accordingly, the substantive sentence imposed upon the applicant/appellant, by learned Additional Sessions Judge-III, Kangra at Dharamshala, District Kangra, H.P., in Sessions Case No. 57-D/VII/2020/18, vide judgment of conviction, dated 28.09.2021, and order of sentence, dated 29.09.2021, shall remain suspended till final disposal of the appeal, however, subject to the applicants’ furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court and also subject to deposit of fine amount, if not already deposited. On furnishing the requisite bail bonds, 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. Neutral Citation No. ( 2025:HHC:20676 ) 11 15. 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 30th June, 2025 (virender) Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa73899 0a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb64 5c9bb134, CN=VIRENDER BAHADUR Reason: I am the author of this document Location: Date: 2025.07.01 15:03:43+05'30' Foxit PDF Reader Version: 2023.2.0 VIRENDER BAHADUR