IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP No. 4096 of 2025 in Cr. Appeal No. 179 of 2023 Reserved on: 12.12.2025 Date of Decision: 22.12.2025 ______________________________________________________ Lekh Ram @ Sunil Kumar ...Appellant/Applicant. Versus State of H.P. ...Respondent/Non-Applicant. Coram Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the appellant/ applicant: Mr. Bhupinder Singh Ahuja, Advocate. For the respondent: Mr. J.S.Guleria, Deputy Advocate General. 4._ __________________________________________________ Romesh Verma , Judge This order shall dispose off an application filed by the appellant/applicant under Section 430 of Bhartiya Nagrik Suraksha Sanhita for suspension of execution of the judgment of conviction and order of sentence dated 24.02.2023/25.02.2023 as passed by the learned Special Judge, Fast Track Special Court (POCSO), Mandi, District Mandi, H.P. in Session Trial No. 107 of 2018. 2. The learned counsel for the applicant/appellant has submitted that applicant/appellant has been falsely roped 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 and implicated in the present case as either directly or indirectly he is not involved in any manner in the present case. He has stated that learned trial Court has not appreciated the oral as well as documentary evidence placed on record and had wrongly convicted the applicant/appellant under the provisions of Section 363 of Indian Penal Code (for short, IPC) for five years, under Section 376 of IPC for 20 years and under Section 6 of Prevention Of Children From Sexual Offences Act, 2012 (for short, the POCSO Act) for 20 years. It has been stated that there are fair chances of acquittal of the applicant/appellant and he has already completed 7 years of sentence on 9th September, 2025. Lastly, he has contended that the quantum of sentence has been passed by the learned Court below as per the amended provisions of IPC and the POCSO Act. He has submitted that as per Sub Section 3 of Section 376 of IPC, which was amended on 21.04.2018 and POCSO Act which was amended w.e.f. 16.08.2019, the applicant has been charged for committing the offences dated 28.03.2018 under Sections 363, 376 of IPC and Section 6 of PCSCO Act. He has submitted that the applicant/appellant cannot be sentenced under the provisions of amended Act as 3 the alleged date of commission of offence is 28.03.2018 i.e. prior to the amendment in the Acts. Therefore, the present application deserves to be allowed and the judgment of conviction and order of sentence is liable to be suspended/stayed during the pendency of the main appeal. 3. On the other hand, Mr. J.S.Guleria, learned Deputy Advocate General for the respondent/State has vehemently opposed the present application and has contended that the learned Court below has rightly convicted the applicant as he has committed heinous crime punishable under Sections 363, 376 of IPC and 6 of POCSO Act. Therefore, no leniency can be shown to the applicant/appellant at the stage of appeal, that too, while deciding the application for suspension of sentence. He has further submitted that the sentence as passed by the learned Court below is based upon the statutory mandate. Since the sentence is based on the gravity of offence, evidence, facts and circumstances of the case, therefore, the plea of the applicant that the sentence is contrary to the provisions of law is baseless and liable to be rejected. Lastly, he has submitted that no case is made out for the suspension of sentence. 4 4. We have heard Mr. Bhupinder Singh Ahuja, Advocate, appearing for the applicant/appellant and Mr. J.S.Guleria, learned Deputy Advocate General, appearing for the respondent/State and have also scanned the record for the purpose of adjudicating the present application. 5. The applicant has been convicted and sentenced for the commission of offence punishable under Sections 363, 376 of IPC and Section 6 of the POCSO Act. 6. In order to substantiate the guilt of the applicant/ appellant, the prosecution has examined, the child victim (PW- 1). She stated that she was 15 years old at the time of occurrence and her date of birth is 17.09.2002. She stated that on 28.03.2018, she alongwith her friend Manju and her fiance went to see Nalwar fair at Sundernagar and then they stopped to see the night cultural programme. During the programme the brother of her friend Manju, the present applicant/appellant also met them. The present applicant/appellant said to the victim that he will accompany her to her house. Thereafter, at about 9:00 p.m. the applicant took her in a car towards ‘Mahamaya Temple’ and committed rape upon her in the car forcibly. After one month of the incident, she stopped 5 menstruating and on that she contacted the applicant from the mobile phone of her mother and told him about the same. On this, the applicant told her not to worry and that he will marry her. The victim further stated that her mother took her to hospital at Bilaspur and a lady doctor medically examined her and conducted the pregnancy test and she was found to be pregnant. On asking by the mother of victim, she told her about the incident that the present applicant had raped her in the car. The said testimony of the victim is corroborated by her mother. 7. Smt. Sitla Devi, the mother of victim, was examined as PW-3. She has stated that in the month of September 2018, her daughter complained stomach ache and vomiting. She brought the child victim for her medical check up and upon examination by the lady doctor, she told that the child victim is pregnant. Upon enquiry, the victim told having been raped by the present applicant Lekh Ram @ Sunil Kumar. The said statement of PW-3 is corroborated by Sh. Kaliya Ram. 8. Sh. Kaliya Ram was examined as PW-7. He stated that his wife telephonically contacted him while he was 6 at Slapper and told him that the child victim is vomiting. He further stated that he told his wife to get her checked up at Bilaspur hospital and then his wife called him from hospital that the doctor had diagnosed the child victim as pregnant. On enquiry, the victim had disclosed that the present applicant/appellant had committed rape upon his daughter. 9. In order to prove the age of the victim, the prosecution has placed on record birth certificate Ext. PW-6/B, which has been proved by PW-6 Sh. Lekh Ram, who was posted as a Clerk in Government Senior Secondary School Jarol, Tehsil Sundernagar, District Mandi, H.P. 10. To the similar extent, the Secretary of the Gram Panchayat Barto, Tehsil Sundernagar, District Mandi, H.P. has entered the witness box as PW-8 in order to prove the age of the victim. He stated that he had issued the birth certificate Ext. PW-8/B, which is true as per the original record. As per these documents, the date of birth of the victim was 17.09.2002 and at the relevant time she was only 15 years of age. The oral testimonies of these witnesses have been corroborated by the medical evidence. 7 11. Dr. Rakesh Sharma, was examined as PW-13. He stated that he remained posted as Medical Officer, ZH Mandi, H.P. in the year 2018. He stated that he performed USG examination of the victim on 10.09.2018 and after examination single live foetus was seen with average gestational age of 25 weeks 0 days. 12. Dr. Aanchal Kashyap, was examined as PW-26. She has stated that as per the report of SFSL Ext. P-3/PW-20, the applicant/appellant is biological father of the baby born to the child victim. MLC of child victim Ext. P-2/PW-26 bears her signature in red circle-A. The copy of the SFSL report is Ext. P- 3/PW-20, which holds the present applicant to be the biological father of the baby born out of the loins of the victim and the present accused. 13. For the purpose of determination of the present application, the learned counsel for the applicant has failed to make out a prima facie case for suspension of the sentence and he has also failed to point out how there are fair chances of acquittal of the applicant. 14. Learned counsel for the applicant/appellant has submitted that the applicant/appellant has been convicted 8 under the amended provisions of the IPC and the POCSO Act, as a result of which, the order of sentence not sustainable in the eyes of law. He has submitted that his client cannot be sentenced under the provisions of amended Acts as the alleged date of commission of offence is prior to the amendment i.e. 28.03.2018. 15. The provisions of Section 376 sub Section (3) of IPC reads as follows: “3. Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.” 16. The aforesaid Section was amended w.e.f. 21.04.2018. 17. Section 6 of the POCSO Act reads as follows: 9 “6. Punishment for aggravated penetrative sexual assault.— Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.” 18. The amendment in the aforesaid said Act was inserted on 16.08.2019. 19. Prior to the amendment, under Section 376 of IPC, the Act prescribed the imposition of sentence for a term which shall not be less then 10 years but which may extend to imprisonment for life and shall also be liable to fine. 20. Similarly, Section 6 of the POCSO Act prior to the amendment reads that whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. 21. From the perusal of the provisions of the IPC and the POCSO Act, it is clear that sentence which has been awarded to the present applicant/appellant is within the range of the provisions prior to amendment and post amendment. Therefore, the contention of learned counsel of the 10 applicant/appellant that he could not have been sentenced under the provisions of amended Acts does not hold good and such contention is liable to be rejected. 22. The judgment of conviction and the order of sentence, which have been passed by learned Court below reveal that the present applicant/appellant has been ordered to be sentenced for imprisonment under the provisions of Section 363 of IPC for five years, under Section 376 of IPC for 20 years and under Section 6 of POCSO Act for 20 years. The learned Special Judge has imposed the sentence, which is within the range of the sentences as prescribed under the unamended Acts and amended Acts. 23. We are aware of the fact that we are dealing with the case of a child victim. While deciding the application and before granting any relief to the appellant/applicant balance has to be maintained between the rights of the appellant/applicant and the victim. 24. From the attending facts and circumstances as well as the oral and documentary evidence placed on record for the determination of the present application, no case is made out for the suspension of the sentence. Further, no case 11 is made out by pointing out that there are fair chances of acquittal in the present appeal. 25. Taking into consideration the entire factual matrix, we do not deem fit to suspend the sentence during the pendency of the appeal. Therefore, the present application being devoid of any merit deserves to be dismissed and is accordingly dismissed. 26. Before parting, it is made clear that any observation made here-in-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observation made here-in-above, which are only for the purpose of the instant application. ( Vivek Singh Thakur) Judge (Romesh Verma) Judge December 22, 2025(Nisha)