Neutral Citation No. ( 2025:HHC:9719 ) 1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP No. 115 of 2025 in Cr. Appeal No. 212 of 2024 Decided on: 07.04.2025 ____________________________________________________ Mahinder Singh …..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? _____________________________________________________ For the applicant: Mr. Arjun Lal, Advocate. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General. Sushil Kukreja, Judge. (oral) This order shall dispose of an application filed by the applicant/appellant under Section 430 of the Bhartiya Nagrik Suraksha Sanhita (for short ‘BNSS’) seeking suspension of sentence awarded by learned Additional Sessions Judge, Fast Track Special Court (POCSO), Kangra at Dharamshala, District Kangra, H.P., vide judgment of conviction and order of sentence dated 31.08.2023, in Sessions Case No. 24-K/VII/2021, whereby the applicant/appellant was convicted under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (for short 1 Whether reporters of Local Papers may be allowed to see the judgment? Neutral Citation No. ( 2025:HHC:9719 ) 2 ‘POCSO’) and sentenced to undergo rigorous imprisonment for a period of twenty years and to pay fine of Rs.1,00,000/- and in default of payment of fine to further undergo simple imprisonment for two years and he was also convicted and sentenced to undergo simple imprisonment for a period of one year for the commission of the offence punishable under Section 506 of the Indian Penal code (for short ‘IPC’) 2. The learned counsel for the applicant/appellant contended that the applicant has already undergone sentence of three years ten months and three days, against the total awarded sentence of twenty years. He further contended that the appeal is likely to take considerable time for its disposal, as such, the instant application may be allowed and the applicant, be released on bail during the pendency of the instant appeal. He also pointed out various discrepancies and inconsistencies in the statements of the prosecution witnesses with respect to the age of the deceased. He contended that the learned Court below had failed to take into consideration that the birth certificate produced by PW-8 was not authenticated, as no certificate qua the authenticity has been appended to the birth certificate and in addition to this PW-7, Data Processing Assistant, in CMO Office (name withheld), has also affirmed the statement of PW-8 that there was no entry regarding Neutral Citation No. ( 2025:HHC:9719 ) 3 the date of birth of the victim found in the record. He submitted that no ossification test of the victim was conducted by the concerned authorities and the learned Court below has ignored the requirements given under Section 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, with regard to age determination of the female child victim. He further submitted that there is no medical evidence supporting the case of the prosecution, as from the medical report of the victim, it is clear that there were no signs of any force or injury on her body parts 3. On the other hand, learned Senior Additional Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence. 4. We have heard the 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 perusal of record reveals that the date of birth certificate of the victim issued by PW-8 Principal, Senior Secondary School (name withheld) is based upon the school leaving certificate of the school last attended by her. He specifically deposed that no other certificate was produced alongwith the Neutral Citation No. ( 2025:HHC:9719 ) 4 school leaving certificate by the victim at the time of her admission in the school. He also deposed that he had not verified the date of birth of the victim from the school last attended by her. PW-6, Secretary Gram Panchayat deposed that birth record of the victim was not available in the panchayat, as it already stood deposited in the CMO Office whereas PW-7 Data Processing Assistant in the office of CMO (name withheld) deposed that no entry regarding the date of birth was found in their record. Therefore, prima facie, it appears that the prosecution could not conclusively establish that the victim was a minor at the time of the alleged incident. From the perusal of the statement of Medical Officer PW-10, it is revealed that no injury was found on the body of accused Mohinder Singh. PW-9, Medical Officer who medically examined the prosecutrix, did not find any injury marks on the genitals of the victim as well as on her breasts, abdomen, back, thigh, legs, feet and fourchette. The learned Trial Court had convicted the accused on the ground that DNA report, Ex. P-1/PW-14 corroborates the statement of the victim, wherein it is mentioned that a mixed autosomal STR DNA profile was obtained from salwar of the victim from which two DNA profiles could be identified. Out of these two DNA profiles, one DNA profile matched completely with the DNA profile obtained from blood sample of accused Mahinder Singh while the second DNA Neutral Citation No. ( 2025:HHC:9719 ) 5 profile matched completely with the DNA profile obtained from blood sample of the victim. However, as per the RFSL report Ex. P1/PW-13 blood and semen were not detected in the pubic hair, vaginal swab, perennial swab and the salwar of the prosecutrix. Therefore, the prosecution is required to explain as to how one of the DNA profiles obtained from the salwar of the victim matched with the DNA profile obtained from the blood sample of the accused especially in view of the fact that blood and semen were not detected on the salwar of the prosecutrix. Hence, prima facie it appears that there is a contradiction in the RFSL report Ex. P1/PW- 13 and DNA report Ex. P-1/PW-14. 7. The instant appeal is of the year 2023 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant. Admittedly, the applicant/appellant has already undergone sentence of about three years and ten months as against the total awarded sentence of twenty years. 8. 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 and order of sentence dated 31.08.2023 deserves to be Neutral Citation No. ( 2025:HHC:9719 ) 6 suspended. Accordingly, the substantive sentence imposed upon the applicant/appellant, vide judgment of conviction and order of sentence dated 31.08.2023, passed by learned Additional Sessions Judge, Fast Track Special Court (POCSO), Kangra at Dharamshala, District Kangra, H.P. shall remain suspended till final disposal of the appeal, however, subject to the applicant’s 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 subject to the deposit of the fine amount, if not, already deposited. On furnishing the requisite bail bonds and on depositing the fine amount, 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. 8. Be it stated that any expression of opinion while deposing of the instant application shall not be construed to be an opinion expressed on the merits of the appeal, which shall be adjudicated on its own merits. ( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 7th April, 2025 (virender) Digitally signed by VIRENDER BAHADUR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898 117bfa738990a0ea7ba, PostalCode=171001, S= Himachal Pradesh, SERIALNUMBER= fed3018c26866cd3d598cb3749b3fb29d4abef4b84983 689d027cb645c9bb134, CN=VIRENDER BAHADUR Reason: I am the author of this document Location: Date: 2025.04.08 17:16:52+05'30' Foxit PDF Reader Version: 2023.2.0 VIRENDER BAHADUR