Lekh Raj @ anr. vs. State of H.P. Cr. Appeal No.57 of 2025 Reserved on: 26.05.2025 19.06.2025 Present: Mr. N.S. Chandel, Sr. Advocate, with Mr. Rajesh Verma, Advocate, for the applicants/appellants. Mr. Lokender Kutlehria, Additional Advocate General, for the respondent/State. Cr. MP No.324 of 2025 The applicants/appellants have filed the present application for suspending the sentence imposed by the learned Sessions Judge-cum-Principal Judge, Family Court Kangra at Dharamshala, District Kangra, H.P. (learned Trial Court). It has been asserted that the applicants/appellants were convicted by the learned Trial Court routinely without any application of mind. There is no direct evidence against the applicants. The statements of witnesses are full of improvements and contradictions, which makes the prosecution's case highly suspect. The applicants are innocent and they were falsely implicated, therefore, it has been prayed that the present application be allowed and the sentence imposed by the learned Trial Court upon the applicants be suspended during the pendency of the appeal before this Court. 2. The application is opposed by filing a reply making preliminary submissions that the offences proved against the applicants are heinous. There is no infirmity in the findings recorded by the learned Trial Court. The suspension of the sentence would compromise public safety. The prosecution had succeeded in proving its case beyond a reasonable doubt, and the learned Trial Court had rightly convicted and sentenced the applicants; therefore, it was prayed that the present application be dismissed. 3. I have heard Mr. N.S. Chandel learned Senior Counsel, assisted by Mr. Rajesh Verma, learned counsel for the applicants and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 4. Mr. N.S. Chandel, learned Senior Counsel for the applicants/appellants, submitted that the prosecution's case is inherently improbable. The incident had taken place inside the house, as per the prosecution, however, no blood was found inside the house. The spot map does not show the place where the beatings were given. There were various contradictions in the statements of prosecution witnesses, which makes the prosecution case highly suspect, therefore, he prayed that the present application be allowed and the applicants be ordered to be released on bail. 5. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the learned Trial Court has discussed the evidence led before it thoroughly. There is no requirement of the law to mention the place where the injuries were inflicted, and in fact, any such depiction in the site plan is inadmissible being hit by Section 162 of Cr.P.C., therefore, he prayed that the present application be dismissed. 6. I have given considerable thought to the submissions made given at the bar and have gone through the records carefully. 7. It was submitted that the applicants were on bail during the trial and they had not misused the liberty extended to them, therefore, they are entitled to bail as a matter of right. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in State of Haryana v. Hasmat, (2004) 6 SCC 175: 2004 SCC (Cri) 1757: 2004 SCC OnLine SC 741  that the mere fact that the accused was on bail during the trial and he had not misused his liberty is no reason to suspend the sentence. It was observed at page 177: “8. The learned Sessions Judge, Gurgaon, by a judgment dated 24-10-2001, had found the accused-respondent guilty. Criminal Appeal No. 100-DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused-respondent was on parole goes to show that initially the accused- respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole, the accused has not misused the liberties does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court was whether reasons existed to suspend the execution of the sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view. 8. It was held in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123: 2023 SCC OnLine SC 551 that the Court should consider the gravity of the offence while considering an application for bail under Section 389 of Cr.P.C. It was observed: “21. Suspension conveys postponement or temporarily prevents a state of affairs from continuing. According to Black's Law Dictionary (Seventh Edition), the word “suspend” means, inter alia, to interrupt; postpone; or defer. Black's Law Dictionary (Seventh Edition) describes the word “suspension” to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word “suspend” as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given effect or deferring or delay an action, event or judgment. 22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders. 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 competent jurisdiction. Once the accused is found 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 a perusal of Section 389 CrPC, 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 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) CrPC. 9. It was further held that while deciding the application for suspension of the sentence, the Court should consider whether the applicant has a fair chance of acquittal. It was observed: 33. Bearing in mind the aforementioned principles of law, the endeavour on the part of the court, therefore, should be to see 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 abovesaid 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 takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has a fair chance 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, based on 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 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 10. Similarly, it was held in (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC 724: (2021) 2 SCC (Cri) 704: 2021 SCC OnLine SC 178, that while granting bail under Section 439 of Cr.P.C., the Courts are liberal and apply the principle that bail is a rule and jail is an exception; however, in case of post-conviction bail, there is a finding of guilt and the question of presumption of innocence does not arise. It was observed: “10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645: (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35) “35. There is a difference between the grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and the grant of bail, post-conviction. In the earlier case there may be a presumption of 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. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] 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, once there is a conviction upon 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 the 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.” 11. The principles which must guide the grant of bail in a case under the NDPS Act have been reiterated in several decisions of this Court and we may refer to the decision in State of Kerala v. Rajesh [State of Kerala v. Rajesh, (2020) 12 SCC 122 : (2020) 4 SCC (Cri) 147]. The High Court, unfortunately, in the present case, has not applied its mind to the governing provisions of the NDPS Act. On the basis of the material which emerged before the learned Special Judge and which forms the basis of the order of conviction, we are of the view that no case for suspension of sentence under Section 389(1) CrPC was established. The order granting suspension of sentence under Section 389(1) CrPC is unsustainable and would accordingly have to be set aside.” 11. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842, wherein it was observed: 3. Section 389 of the Code of Criminal Procedure (for short the “Cr. PC”) deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. The said provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. The said requirement thus indicates the legislative intention that the appellate Court, invoking the power under Section 389, Cr. P.C. should assess the matter objectively, and such assessment should reflect in the order. 4. We will briefly refer to some of the relevant decisions dealing with Section 389, Cr. P.C. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule, and its rejection is the exception. (See the decision in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421). However, we are of the considered view that the position should be vice- versa in the case of conviction for serious offences when the invocation of power under Section 389 is invited. This Court, in the decision in Kishori Lal v. Rupa (2004) 7 SCC 638, held in paragraphs 4 and 5 thus:— “4. Section 389 of 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 the 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 his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects, and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. 5. The appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of an allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.” 5. In the decision in Anwari Begum v. Sher Mohammad (2005) 7 SCC 326, this Court in paragraphs 7 and 8 held thus: — “7. Even on a cursory perusal, the High Court's order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but an exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 8. There is a need to indicate in the order the reasons for prima facie concluding why bail was being granted, particularly where an accused was charged with having committed a serious offence. It is necessary for the Courts dealing with applications for bail to consider, among other circumstances, the following factors before granting bail, they are: 1. The nature of the accusation and the severity of punishment in case of conviction, and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of a threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Rama Govind Upadhyay. Sudarshan Singh(2002) 3 SCC 598, Puran v.Rambilas(2001) 6 SCC 33 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528.” 12. It was further held that the suspension is to be granted by recording the reasons, and it is impermissible to release the accused simply because the appeal was not likely to be heard soon. It was observed: “9. We have already referred to the mandate under Section 389 Cr. P.C. that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. In the decision in State of Haryana v. Hasmat (2019) 5 SCC 373: 2019 INSC 377, this Court held that in an appeal against conviction involving a serious offence like murder punishable under Section 302, IPC the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like the nature of the offence held to have been committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed under Section 389, Cr. P.C. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr. P.C. without referring to the relevant factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction (especially in cases where life imprisonment is imposed for serious offences), within a short span of time, may not be possible in view of the number of pending cases. In such circumstances, if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. P.C., the likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention, as can be seen from the phraseology in Section 389 Cr. P.C. Such an interpretation would also go against public interest and social security. In such cases, giving preference over appeals where the sentence is suspended, in the matter of hearing or adopting such other methods, making an early hearing possible could be resorted to. We shall not be understood to have held that, irrespective of inordinate delay in consideration of the appeal and long incarceration undergone, the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the appellant(s) concerned should be suspended during the pendency of the appeal and the appellant(s) should be released on bail.” 13. Therefore, the applicants can be released on bail if it is shown that their appeal is likely to succeed on merits. 14. As per the judgment of the learned Trial Court, the applicants/accused were sentenced as under: - Sections Sentence Awarded Fine imposed Sentence in default of payment of the fine amount Section 304(II) read with Section 149 of IPC Simple imprisonment for 7 years ₹40,000/- each 2 months' simple imprisonment Section 452 read with Section 149 of Simple imprisonment ₹5,000/- each 2 months' simple imprisonment the IPC for 5 years Section 323 read with Section 149 of the IPC Simple imprisonment for 1 year --- --- Section 325 read with Section 149 of the IPC Simple imprisonment for 3 years ₹5,000/- each 2 months' simple imprisonment 15. It is apparent from the judgment that the applicants were found guilty of the commission of an offence punishable under Section 304(2) of IPC, which is a heinous offence. They were sentenced to undergo simple imprisonment for seven years, therefore, in view of the gravity of the offence, they can claim bail only if they satisfy the Court that they have a fair chance of acquittal. 16. It was submitted that the learned Trial Court had sentenced applicants for the commission of an offence punishable under Section 149 of the IPC, which could not have been invoked in a case of fewer than five persons. It is correct that Section 149 requires the presence of five persons and two persons could not have been convicted with the aid of Section 149 of IPC, however, it was laid down by the Hon’ble Supreme Court in Dhaneswar Mahakud & Ors Versus State of Orissa (2006) 9 SCC 307, that an accused, charged with the commission of offence punishable under Section 302 read with Section 149 of IPC, can be convicted for the commission of offence punishable under Section 302 read with Section 34 of IPC even though no charge was framed against the accused with the aid of Section 34 of IPC. 17. 17. The learned Trial Court had recorded a categorical finding that the accused were acting in concert, therefore, prima facie, the provisions of Section 34 of IPC would be attracted to the present case and the judgment passed by the learned Trial Court will not be bad simply because learned Trial Court had used Section 149 instead of Section 34 of IPC. 18. It was submitted that the site plan did not show the place where the injuries were inflicted. It was rightly submitted on behalf of the State that the statement made by a witness to the Investigating Officer during an investigation is inadmissible regarding the spot position. This position was recognised in Jagdish Narayan versus State of U.P., 1998 (8) SCC 199; therefore, prima facie, the prosecution case cannot be doubted because the Investigating Officer has not shown the place where the beatings were given to the deceased. 19. It was submitted that, as per the prosecution's case, the incident had taken place inside the house and no blood of any injured person, except the deceased, was found inside the house, which makes the prosecution's case highly suspect. This submission will not help the applicants. Statement of the witnesses show that only two persons, namely, Sudarshan and Kishori Lal, had sustained bleeding injuries. The report of FSL (Ext. PW38/PW22) shows that human blood of Group ‘A’ was detected from the blood lifted from room No.1, blood lifted on cotton from the floor of Room No.1, pillow cover, bed sheet, blood lifted on cotton from the floor of Room No.2, pants of Sudarshan Kumar. Thus, the blood of human group ‘A’ was found in Room No.1, Room No.2, the blood sample of Kishori Lal and the pants of Sudarshan Kumar and the plea that no blood of the injured was found in the rooms is not correct. 20. It was submitted that there are various contradictions in the statements of prosecution witnesses, which make the prosecution's case highly suspect. Learned Trial Court had noticed in its judgment that the contradictions were not material and could not have been used to discard the prosecution's case. Prima facie, there is no reason to discard this finding recorded by the learned Trial Court. 21. It was submitted that there was litigation between the parties, and the possibility of false implication cannot be ruled out. Prima facie, the civil litigation cannot be used to discard the prosecution case because the enmity is a double-edged weapon - while it furnishes the motive for false implication, it also furnishes a motive for the commission of the crime, therefore, not much advantage can be derived from the civil litigation pending between the parties. 22. It was submitted that independent witnesses were not associated, even though the incident had taken place in the village. Learned Trial Court held that the non- examination of the independent witnesses is not material when there is no evidence that the incident was witnessed by any person. Prima facie, there is no reason to disbelieve this finding of the learned Trial Court. 23. Therefore, the applicants have, prima facie, failed to show any fair chance of acquittal at this stage. Hence, the sentence imposed by the learned Trial Court cannot be suspended. 24. It was submitted that the appeal is not likely to be heard soon, and the applicants cannot be kept behind the bars indefinitely. This submission is not acceptable. This Court has the Roster to hear the criminal appeals of undertrial prisoners up to the year 2024, which means that the appeals of the undertrial prisoners filed in the year 2024 are being taken up for hearing. There is no reason to believe that the appeals filed in the year 2025 are not likely to be taken up for hearing soon. In case the instant appeal is not taken up for hearing, the applicants/appellants are at liberty to approach this Court for seeking the suspension on the ground that their appeal is not being heard, however, it is difficult to hold at this stage that the applicants’ appeal is not likely to be taken up for hearing. 25. No other point was urged. 26. In view of the above, the present application fails, and the same is dismissed. 27. The observation made hereinabove shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case. Cr. Appeal No. 57 of 2025 28. List the matter for hearing in due course. (Rakesh Kainthla) Judge 19th June 2025 (saurav pathania)