Himachal Pradesh High Court
Raju vs . State Of Hp on 20 May, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Raju Vs. State of HP Cr. Appeal No.168 of 2025 20.05.2025 Present: Mr. Arjun Lall, Advocate as Legal Aid Counsel, for the appellant Mr.Yashwardhan Chauhan, Senior Additional Advocate General with Mr. Ramakant Sharma, Ms. Sharmila Patial, Mr. Sushant Kaprate,Additional Advocates General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocates General, for the respondent/State.
Cr. MP No.1462 of 2025 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, Kullu, Himachal Pradesh, vide judgment of conviction and order of sentence dated 21.10.2024, in Sessions Trial No.15 of 2020/18, whereby the applicant/appellant was convicted under Section 376 (2) (J) of the Indian Penal (IPC) and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/- for the commission of the offence punishable under Section 376(2)(J), IPC.
2. The learned counsel for the applicant-appellant contended that the applicant has already undergone more than half of the sentence, i.e. seven years and three months against the total awarded sentence of ten 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-appellant may be released on bail during the pendency -2- of the appeal. He also pointed out various inconsistencies and discrepancies in the prosecution case.
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 prosecutrix (PW-1), in her cross-examination, admitted that there family was having an enmity with the applicant-appellant. While appearing in the witness box she nodded her head by saying 'yes' to the question that Chet Ram, Thakur Dass, Keshav Ram and Subhash had beaten the applicant-appellant on the date of incident. Mother-in-law of the prosecutrix (PW-4) deposed that on 11.02.2018, the prosecutrix, who was deaf and dumb, told her and her son by gestures and signs that someone from the village had committed rape upon her, thereafter, they kept on searching the suspect in the village and tried to get him identified from her daughter-in-law, but she failed to identify any person at that time. Prima facie, it appears that the learned Trial Court has failed to appreciate the medical evidence of the victim in its right perspective as PW-8 Dr. Dechen Wangmo has -3- categorically stated that the prosecutrix had taken bath and changed her clothes twice since the incident and the clothes allegedly worn by her at the time of incident were not brought. She further deposed that in her opinion, there was exposure to coitus and after receipt of forensic report from RSFL Mandi, she gave opinion on MLC Ext. PW8/B that 'human semen was detected on cloth and vaginal swabs of victim, hence, there is evidence of exposure of recent coitus'. However, in her cross- examination, she admitted that the prosecutrix was married and the coitus was recent means that it was up to a week. She also admitted that coitus may have been with the husband of the victim and she could not say with whom coitus was there. Thus, the medical opinion, prima facie, does not point to the guilt of the applicant-appellant as the victim was a married woman and habitual to sexual intercourse. Admittedly, no DNA test was conducted in order to connect the accused with human semen detected on the cloths and vaginal swabs of the victim The medical opinion further reveals that old healed hymen tags were present and no local injury was seen near genitalia and no injury marks were seen anywhere on the body of the victim.
6. Admittedly, the applicant/appellant has already undergone more than half of the sentence, i.e. 7 years, 03 months and 28 days as against the total awarded sentence of ten years. The instant appeal is of the year 2025 and the same is not -4- 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.
7. Therefore, in view of the entire evidence on record, 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 21.10.2024 deserves to be suspended. Accordingly, the substantive sentence imposed upon the applicant/appellant, vide judgment of conviction and order of sentence dated 21.10.2024, passed by learned Additional Sessions Judge, Kullu, 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.
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The application stands disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge May 20, 2025 (VH)