Raj Kumar vs. State of H.P. Cr. Appeal (C-SB) No. 182 of 2026 Reserved on: 10.9.2026 22.9.2026 Present: M/s Dushyant Dhadwal and Sashwat Dhadwal, Advocates, for the appellant. Mr Ajit Sharma, Additional Advocate General, for the respondent-State. CrMP No. 3321 of 2026 The applicant has filed the present application for suspension of sentence awarded by the learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur District at Nahan, H.P. (learned Trial Court) on 24.7.2026. 2. It has been asserted that the applicant is a permanent resident of Village Konthro, Post Office Vikram Bag, Tehsil Nahan, District Sirmaur. The applicant has undergone a substantial part of incarceration after conviction. His appeal is not likely to be taken up for hearing soon. He has an arguable case in his favour, and his appeal is likely to be allowed in all probabilities. Therefore, it was prayed that the present application be allowed and the sentence of imprisonment awarded by the learned Trial Court be suspended. 3. The application is opposed by filing a reply asserting that the learned Trial Court had convicted the applicant after a full-fledged trial. There is no infirmity in the judgment of conviction and order of sentence passed by the learned Trial Court, and the appeal is likely to be dismissed. The applicant used to supply milk to the victim, and he had inappropriately touched her. The prosecution has proved its case beyond reasonable doubt, and the learned Trial Court had rightly convicted the applicant. He has no arguable case in his favour. Therefore, it was prayed that the present application be dismissed. 4. I have heard M/s Dushyant Dadwal and Shashwat Dadwal, learned counsel for the applicant, and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 5. Mr Dushyant Dadwal, learned counsel for the applicant, submitted that there are various contradictions in the statements of the witnesses. There was a delay in reporting the matter to the police, which makes the prosecution’s case suspect. The learned Trial Court had ignored all these considerations. Therefore, he prayed that the present application be allowed and the sentence awarded by the learned Trial Court be suspended. 6. Mr Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that there is no infirmity in the judgment and order passed by the learned Trial Court. Therefore, he prayed that the present application be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It was laid down by the Hon’ble Supreme Court 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. The courts should not release a person on bail merely because he was on bail throughout the trial and had not misused the concession of liberty granted to him. It was observed: “21. Suspension conveys postponement or temporarily preventing 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 held 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. xxxxxxxx 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to 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, on the basis of 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.” 9. 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 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 attracted, once there is 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 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.” 10. 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 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 that 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 reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with applications for bail to consider, among other circumstances, the following factors also 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 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 Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Puran v. Rambilas (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528.” 6. After referring to the aforesaid paragraphs in the decisions in Kishori Las's case (supra) and Anwari Begum's case (supra), this Court, in the decision in Khilari v. State of Uttar Pradesh (2009) 4 SCC 23, interfered with an order suspending the sentence and granting bail for non-application of mind and non- consideration of the relevant aspects. 11. It was held in Atul v. State of M.P., (2024) 3 SCC 663: 2024 SCC OnLine SC 113 that in a fixed-term sentence and where the appeal was not likely to be heard before completing the entire sentence, normally suspension of sentence should be granted. It was observed: “2. Out of a fixed-term sentence of five years, the appellant-accused has already undergone half of the sentence. The appeal against conviction of the year 2022 is not likely to reach before he completes the entire sentence. Hence, a case is made out for a grant of suspension of sentence pending the appeal and grant of bail. For that purpose, the appellant shall be produced before the trial court within a period of one week from today. xxxxx 4. Before parting with the order, we must note here that notwithstanding several decisions of this Court holding that when there is a fixed-term sentence and especially when the appeal is not likely to be heard before completing an entire period of sentence, normally suspension of sentence and bail should be granted, we find that in several deserving cases, bail is being denied. Such cases should never be required to be brought before this Court. 12. Therefore, in the case of a short-term sentence of three years provided in the statute, bail is the rule and jail is the exception. However, in serious offences, the Court has to consider the circumstances of the case and the likelihood of early disposal of the case. Where the case is not taken up expeditiously, and the person has spent more than half of the sentence, the person is entitled to be released on bail. 13. The present application has to be disposed of as per the parameters laid down by the Hon’ble Supreme Court. 14. The incident had taken place on 26.6.2021 and was narrated by the victim to her mother on the same day at about 11:00 AM. She narrated the incident to her husband on 29.6.2021. As per the statement of the victim’s father (PW-9), the matter was reported to the police on 30.6.2021. The victim was residing with her father at the time of the incident, and prima facie, there is a delay in reporting the matter to the police. 15. The victim admitted in her cross-examination that a CCTV camera was installed in the building and police had taken the CCTV footage into possession. However, ASI Babita Kumari, Investigating Officer (PW-11), has not produced any CCTV footage. The non-production of CCTV footage will prima facie make the prosecution’s case doubtful1. 16. Prima facie, these points raise an arguable case in favour of the applicant, and the applicant’s submissions are required to be thoroughly considered. The appeal was filed in the year 2026 and is not likely to be taken up for hearing soon. The applicant would have undergone a substantial part of the imprisonment awarded to him by the time the appeal comes up for hearing. Therefore, the applicant is entitled to suspension of the sentence awarded to him. 17. In view of the above, the present petition is allowed, and the substantive sentence of imprisonment awarded by the learned Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur District at Nahan, H.P., in Sessions Trial No. 36-ST/7 of 2021, dated 24.7.2026 is ordered to be suspended till the disposal of the appeal subject to deposit of fine amount, if not deposited earlier, and furnishing of personal and surety bonds in the 1 Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 sum of ₹1,00,000/- each, undertaking therein to appear before this Court as and when directed to do so and surrender before the learned Trial Court in case of dismissal of the appeal. 18. The bail bonds so furnished by the applicant/petitioner be transmitted to this Court for record. 19. The present application stands disposed of. Cr. Appeal (C-SB) No. 182 of 2026 20. Records be called for. (Rakesh Kainthla) Judge 22nd September, 2026 (Chander)