2025:HHC:38497 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP No. 2956/2025 in Cr. A. No. 376/2025 Reserved on: 6.11.2025 Decided on: 14.11.2025 Babloo Kumar …..Appellant/Applicant Versus State of H.P. ….Respondent/Non-applicant ______________________________________________________________ Coram: The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the Appellant/Applicant: Mr. Vijender Katoch, Advocate. For the Respondent: Ms. Sharmila Patial, Addl. A.G. Romesh Verma, Judge This order shall dispose of 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 31.5.2025 as passed by the learned Sessions Judge-cum-Principal Judge, Family Court, Kangra at Dharamshala. 1Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 2 The applicant has filed the instant application on the averments that the applicant has got arguable case in his favour, which upon final adjudication may result in upsetting the judgment under appeal and the applicant may be acquitted in ultimate outcome. It has been averred in the application that the applicant is in custody since 2023 and has spent a total period of more than 2 years and 1 month in the custody, therefore, he has been in custody for a substantial period. It has been further averred that the applicant is permanent resident of State of Himachal Pradesh and there are remote chances of his fleeing from the jurisdiction of this Court. 3 It is contended by the learned counsel for the applicant that the applicant has been falsely roped and implicated in the present case as either directly or indirectly he is not involved in any manner in the present case. He urged that the factual matrix of the case demonstrates that his client has been falsely implicated in the present case and he has got no role to play in the same. He has further argued that the learned court below has wrongly convicted the applicant in the absence of any evidence, 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 4 On the other hand, Ms. Sharmila Patial, learned Additional Advocate General has vehemently opposed the present application and contended that the learned court below has rightly convicted the applicant as he has committed heinous crime punishable under Section 376(2)(L) of the Indian Penal Code. 5 We have heard Mr. Vijender Katoch, Advocate, appearing for the applicant and Ms. Sharmila Patial, learned Additional Advocate General, appearing for the respondent- State and have also scanned the record for the purpose of the present application. 6 The record reveals that brother of the prosecutrix, namely, Vipin Kumar made a complaint (Ext.P-19/PW-8) to the police officials on 2.5.2023 to the effect that he is permanent resident of Tehsil Palampur, District Kangra and is a labourer by profession. He stated that his sister (prosecutrix) is residing with him in the old house. She is physically challenged and mentally retarded. She was married to one Vinod Kumar, resident of Nagrota, District Kangra and out of this wedlock, his sister is having two daughters and his sister is residing with him for many years. On 21.4.2023 when he went to the room of his sister at 7.00 A.M. in the morning to give breakfast, he saw that his sister has given birth to a male child and 4 thereafter he gave information to one Jagdish Chand resident of his village and Sonia Devi, former Ward Panch. The said statement under Section 154 Cr.P.C. was made by Vipin Kumar and based on that, a case under Section 376 (2) (L) of the Indian Penal Code was registered against the applicant and his father Sukhdev. 7 In order to substantiate the guilt of the said persons, the prosecution has examined Dr. Major Sukhjeet Singh, who was posted as Professor and HOD Department of Psychiatry, Dr. RPGMC, Tanda, District Kangra (HP), as PW1. He has given and proved his psychiatric opinion, (Ext.P-3/PW- 1), which says that the patient (prosecutrix) is able to comprehend the questions asked but has difficulty in communicating/expressing herself efficiently. Her mental age was opined to be between 6 to 9 years. The said opinion (Ext.P- 3/PW-1) is duly signed by Dr. Pankaj Kanwar, Assistant Professor, Dr. Abhinav Aditya, Senior Resident and Dr. Anita Thakur, Senior Resident, Department of Psychiatry, Dr.RPGMC, Kangra at Tanda. Said report (Ext.P-3/PW-1) was proved by PW2 Dr. Abhinav Aditya. 8 In order to corroborate its case, biological specimens authentication for DNA testing of husband of 5 prosecutrix (Vinod Kumar),Ext.P-6/PW3), Sukhdev and Babloo were taken by the prosecution. 9 As per report of RFSL Laboratory, Dharamshala, dated 8.6.2023, Ext.P-9/PW4, blood samples of prosecutrix, Babloo and Sukhdev and new born baby, the custody of whom was given to Asha, were examined and as per the report, there is categorical finding that Babloo, the present applicant, is biological father of DNA profiling of new born baby. Report is clear and unambiguous holding the applicant to be biological father of the baby, who was born from the prosecutrix. 10 To the similar effect is medico legal certificate, (Ext. P-16/PW5), which has been given by PW6 Dr. Aishwarya Aditi. She has given her opinion dated 19.6.2023 that DNA profiling suggests that the applicant is biological father of new born baby. 11 In all the documents, the male child which was born from the prosecutrix is being shown as baby of Asha since the custody of baby was handed over to one Asha, the then President of Mahila Mandal in order to look after him. 12 In order to connect the commission of offence by the applicant, statement under Section 164 Cr.P.C., which was made by the prosecutrix before the learned Additional Chief 6 Judicial Magistrate, Palampur, has been placed on record as (Ext.P-31/PW9). 13 In the said statement, as made by the prosecutrix, she has categorically named the applicant to be the perpetrator. In the statement she has stated that Sukhdev and the applicant have committed wrong act with her and she has specifically deposed that both of them have committed wrong act with her again and again and after having dinner they used to commit wrong act with her. 14 To the similar extent is statement made by the prosecutrix, (Ext.P-40/PW13) before PW13 L/HASI Prita Kumari, Police Station Panchrukhi. In this statement also, she has stated that Sukhdev and the applicant used to come at her place and they used to commit wrong act with her. She has further stated that Sukhdev used to say that she is his wife. 15 Statements made by the prosecutrix before the learned Additional Chief Judicial Magistrate, Palampur and L/HASI Prita Kumari, Police Station Panchrukhi are very categoric and clear, which link the applicant to the commission of offence, for the adjudication of the present application for suspension of sentence. 16 This Court is aware of the fact that we are dealing with a case of rape having been committed with a woman, who 7 is not only physically challenged, but also mentally retarded, whose mental age, as observed above, has been determined to be between 6 to 9 years. The prosecutrix is required to be treated as minor. 17 In the present case, the applicant has been convicted for a heinous offence upon a helpless, mentally retarded female, therefore, under such circumstances, gravity of the offence is more serious. 18 The medical evidence and the statements made by the prosecutrix are also corroborated by the statement of brother of the prosecutrix i.e. PW8 Vipin Kumar. He has categorically stated that he had suspicion that Sukh Dev and Babloo had committed wrong act with his sister as his mother had also caught hold of them on earlier occasion. 19 Statement of PW10, Asha Chaudhary, has also supported the case of the prosecution. She has stated that prosecutrix had given birth to a child and she went to her house where she found that the prosecutrix was not in a fit condition and the new born baby needed immediate help as he was turning black. She took the baby along with brother of the prosecutrix to Nirdosh Hospital and thereafter the baby was referred to Dr. RPGMC Tanda, where he remained admitted till 10.5.2023. 8 20 To the similar extent is statement of PW11 Anil Kumar, who was the Up Pradhan of Gram Panchayat Lamblehar. He stated that on 22.4.2023 he came to know that the prosecutrix had given birth to a child. He along with Pradhan and Ward Panch visited prosecutrix’s house. The prosecutrix was mentally retarded but she could understand to some extent. He stated that after about 2-3 days of the incident, he came to know from the villagers that Sukh Dev and Babloo might have committed wrong act with the prosecurix and this fact was also being narrated by brother of the victim to the villagers. 21 From the oral as well as documentary evidence placed on record, learned counsel for the applicant could not point out any enmity and reason that why the applicant has been implicated in the present case. 22 The medical reports corroborated by other material evidence, prima facie, establish that no case is made out for suspension of sentence at this stage. Learned counsel for the applicant cannot demonstrate from the records that this is a fit case for acquittal of the applicant. 23 Hon’ble Supreme Court in Preet Pal Singh vs. State of Uttar Pradesh (2020) 8 SCC 645 has held as follows:- 9 “35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and C innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. (2018) 3 SCC 22 However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon d trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.” 23 In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant application and the same is accordingly dismissed. 24 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- 10 in-above, which are only for the purpose of the instant application. (Vivek Singh Thakur) Judge (Romesh Verma) 14.11.2025 Judge (pankaj)