2026:HHC:30462 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMP No.239 of 2026 in Cr. Appeal (C-DB) No.11 of 2026 Reserved on: 17.07.2026 Date of decision: 23.07.2026 Uploaded on: 23.07.2026 Pawan Kumar. ...Applicant/Appellant. Versus State of Himachal Pradesh. …Respondent. Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 For the applicants/ appellant : Mr. Aditya Kaushal, Advocate For the respondent(s) : Mr. J.S. Guleria, Deputy Advocate General. Vivek Singh Thakur, Judge This application has been filed for suspending the substantive sentence imposed upon the applicant/appellant, who has been convicted and sentenced vide judgment and order dated 11.11.2025 passed by Additional Sessions Judge, Sarkaghat, District Mandi, Himachal Pradesh, in Sessions Trial No.15/21 of 2018 titled as ‘State of Himachal Pradesh vs. Pawan Kumar’, arising out of FIR No.20/2018 dated 20.02.2018 registered in Police 1Whether the reporters of the local papers may be allowed to see the Judgment? Yes -2- 2026:HHC:30462 Station Padhar, for commission of offences punishable under Sections 376 and 506 of the Indian Penal Code, 1860 (for short, "IPC"), whereby the applicant/appellant has been sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of ₹5,00,000/- for the offence punishable under Section 376 of IPC and in default of payment of fine, to further undergo simple imprisonment for one year and, to undergo simple imprisonment for one year and to pay a fine of ₹1,000/- for the offence punishable under Section 506 of IPC and, in default of payment of fine, to further undergo imprisonment for 7 days. 2. This application has been filed for suspending the substantive sentence imposed upon the applicant/appellant on the grounds that there is fair chance of acquittal, as evident from the material on record, especially from the statements of PW-2 Victim, PW-9 Ghan Shyam (husband of the victim) and PW-11 Sher Singh as well as the application (Exhibit PW2/A) submitted by PW-2 Victim given to the SHO, Police Station Padhar, on the basis of which FIR was registered and deposition of victim (Exhibit PW2/B) recorded under Section 164 Criminal Procedure Code, 1973 (in short ‘Cr.P.C.’) before Additional Sessions Judge, Mandi. 3. Learned counsel for applicant/appellant has also taken plea, as also taken in defense during the trial by and on behalf of the -3- 2026:HHC:30462 applicant/appellant, that the incident complained was a consensual act and as alleged in the complaint and deposition of the witnesses, it was not possible for applicant/appellant to commit an offence/act unless there was consent of the victim. 4. It has been further submitted by referring to the photographs, placed on record as Exhibit CX that the applicant- appellant is not having his right hand after the wrist and he is having only one hand, i.e. the left hand. Therefore, it has been contended that the claim of the victim that the applicant-appellant gagged her mouth with one hand to prevent her from raising alarm and, with the other hand, facilitated the commission of the offence, is not sustainable. 5. Photographs (Ex. D1) have also been referred by learned counsel for the applicant/appellant, wherein the applicant/appellant is standing with the victim and her small daughter like a family/friend. Though the victim has denied having snapped any such photograph at any point in time with the applicant/appellant, however, she has identified herself, the accused, as well as her minor daughter in the photo. 6. It has been submitted by learned counsel for the applicant/appellant that the incident allegedly occurred between -4- 2026:HHC:30462 11:30 PM to 12:00 AM during the intervening night of 11th and 12th February 2018. It has been submitted that it has come in the evidence of PW-2 (victim), PW-9 Ghan Shyam (husband of victim), and PW-11 Sher Singh that the residence of the applicant/accused was about 1.5 to 2 kilometers distance from the house of the victim, and the house of the victim is situated in a thickly populated village, where there are numerous houses, including the houses of the brother and other relatives of the husband of the victim, including PW-11 Sher Singh, around the house of the victim. Therefore, unless there was a consent or prior fixing of meeting at 11:30 PM, it was not possible for the applicant/appellant to appear and remain present in the courtyard or near the toilet of the victim's house at an odd hour of midnight, as without prior information, he would never have had any knowledge of the victim coming out of her house at 11:30 PM. 7. It has been further submitted by learned counsel for the applicant/appellant that in her deposition in the Court, the victim has stated that at about 11:30 PM, the offence was committed by Pawan Kumar (applicant/appellant) forcibly after laying her on the ground, and to save herself, she hit the nose of the applicant/appellant which led to the oozing of blood from his nose, and thereafter he ran away. According to her, her husband came at 12:00 AM, and the applicant/appellant had threatened her with dire consequences to -5- 2026:HHC:30462 cut her body into pieces. She reported the incident to Pradhan Sher Singh (PW-11) in the morning. 8. It has been submitted that contrary to the aforesaid, PW- 9 Ghan Shyam (husband of victim) has stated that he had noticed the applicant/appellant under a mango tree, and when PW-9 Ghan Shyam tried to catch him, he ran away, and despite chasing, because of darkness, the applicant/appellant could not be apprehended. According to PW-9 Ghan Shyam, he had not informed anyone during the night. 9. PW-11 Sher Singh, who is admittedly a relative of the victim's family, has stated that he had reached the spot at 11:30 PM on the night of the occurrence, and no other person except him and Ghan Shyam (PW-9) had come on the spot. He (PW-11) and Ghan Shyam (PW-9) were having mobile phones, perhaps victim was also having a mobile phone and Ghan Shyam (PW-9) had called him on his mobile phone. 10. PW-11 Sher Singh in his examination-in-chief has submitted that he had seen the applicant/appellant running from the spot at 11:30 PM on 11.02.2018, when he came to the house of the victim, on the call of the husband of the victim (PW-9 Ghan Shyam), and according to him, PW-9 Ghan Shyam had also chased -6- 2026:HHC:30462 applicant/appellant Pawan Kumar to apprehend him, but he fled away. 11. In her application submitted by her to the police, the victim had alleged the commission of offence, but without any averment therein regarding raising a hue and cry or alarm, but stating only that after commission of the offence, the applicant/appellant had threatened her to kill her and her family by cutting them into pieces, if she would open her mouth. According to her, she tried her best to save herself, but the applicant/appellant gagged her mouth and overpowered her, and also tore her clothes, and she hit his nose, causing blood to ooze out from his nose. 12. In her statement (Exhibit PW2/B) before the Additional Sessions Judge recorded under Section 164 Cr.P.C., the victim stated that she was alone at home on 11.02.2018 at 11:30 PM and went out to attend the call of nature. Applicant/appellant-Pawan Kumar came on the path, saw her, gagged her mouth, and violated her forcibly. She hit him and tried to save herself. Her husband was not at home, and after ravishing her, applicant-appellant ran away from the spot. In her cross-examination in Court, she has stated that she made a hue and cry for a long time, but nobody came on the spot, and she also gave teeth bites and nail scratches to save herself. -7- 2026:HHC:30462 13. According to victim, she had informed Sher Singh (PW- 11) on the same night, but according to Ghan Shyam (PW-9), they informed Sher Singh (PW-11) the next morning. In her examination- in-chief also, she has stated that the next morning, the incident was informed to Pradhan Sher Singh (PW-11), whereas Sher Singh has claimed his presence during the night on the spot and claimed that he had also seen applicant/appellant-Pawan Kumar running from the spot. 14. PW-10 Dr. Suchi Sharma has stated that there were no struggle marks on the person of the victim. 15. PW-9 Ghan Shyam has stated that nobody heard while his wife was weeping, as there was total darkness, and when he inquired from his wife, why she had not made noise, the victim disclosed that she decided to wait for PW-9 Ghan Shyam (husband of the victim) to reach home as she was afraid. PW-9 Ghan Shyam has admitted that his wife was healthy, and PW-11 Sher Singh also admitted that the victim was a healthy lady. PW-9 also stated that there was no injury on the person of his wife. 16. According to prosecution case, Sher Singh (PW-11) came on the spot next morning, contrary to Sher Singh's claim that he was on the spot at 11:30 PM. -8- 2026:HHC:30462 17. From the aforesaid narration of the witnesses, though DNA profiling of the semen found on the vaginal swab and clothes of the victim has matched with the applicant/appellant, there is a possibility of acquittal of the applicant/appellant as a prima facie case for suspension of sentence on the balance of convenience is made out. 18. Applicant/appellant was on bail during the trial, and after conviction, he has surrendered before the Court for serving the sentence. It has been submitted that there is no chance of the applicant/appellant fleeing from justice, and he is ready to furnish bail bonds as directed by the Court for enlarging him on bail after suspension of sentence. 19. Considering the entire material on record and the peculiar facts and circumstances, the substantive sentence imposed upon the applicant/appellant is suspended during the pendency of the appeal, subject to furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of Trial Court with 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 to serve the sentence. -9- 2026:HHC:30462 20. Bail bonds so furnished shall be transmitted by the Trial Court to the Registry of this Court for placing the same on record. 21. Needless to say, the aforesaid observations made in the application, shall not have any bearing on the final adjudication of the appeal, as these observations are preliminary in nature by considering the material on record, prima facie, for purpose of suspension of sentence of the applicant. 22. Parties are permitted to produce a copy of this order downloaded from the web-page of the High Court of Himachal Pradesh before the Court below and the Court below shall not insist for production of a certified copy of order, rather, the Court below shall verify passing of this order from the web-page of the High Court. 23. Application is allowed and disposed of in aforesaid terms. (Vivek Singh Thakur) Judge (Ranjan Sharma) Judge 23rd July, 2026 (Pardeep) Digitally signed by PARDEEP KUMAR DN: C=IN, CN=PARDEEP KUMAR, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, ST=Himachal Pradesh, postalCode=171001, serialNumber= c97a367898ac22c23fc30ab6a3591256b7a4ad2c ad030e92979c2555c8a5f938, telephoneNumber= d05130667f821f5daf82f10daa1e8f881d1b27c3b7 89f3f1d997a5e07adfe4ef Reason: I am the author of this document Location: Date: 2026.07.23 12:04:20+05'30' Foxit PDF Reader Version: 2026.1.2 PARDEE P KUMAR