Anil Kumar Vs State of Hp

1 Neutral Citation No. ( 2025:HHC:25671 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP No. 5387 of 2024 in Cr. Appeal No. 680 of 2024 Reserved on: 25.07.2025 Decided on: 01.08.2025

____________________________________________________ Anil Kumar …..Applicant/Appellant Versus State of Himachal Pradesh ……Non-applicant/Respondent ___________________________________________________ Coram_

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Hon'ble Mr. Justice Sushil Kukreja, Judge

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1 Whether approved for reporting?

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_______________________ For the applicant:	______________________________ Mr. Ajay Kochhar, Senior Advocate, with Ms. Swati Sharma, Advocate.
For the non-applicant/State:	Mr. J.S. Guleria and Mr. Ankush Thakur, Deputy Advocates General.
Sushil Kukreja, Judge

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This order shall dispose of an application filed by the applicant/appellant under Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) seeking suspension of sentence awarded by learned Additional Sessions Judge, Nahan, District Sirmour, H.P., vide judgment of conviction and order of sentence dated 21.11.2024, in Sessions Trial No. 6-N/7 of 2018, whereby he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/- for the offence punishable

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 Neutral Citation No. ( 2025:HHC:25671 )

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under Section 324 read with Section 34 of Indian Penal Code (for short “IPC”) and in default of payment of fine to further undergo simple imprisonment for three months, for the offence punishable under Section 307 read with Section 34 of IPC, he was sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.10,000/- for the offence punishable under Section 307 read with Section 34 of IPC and in default of payment of fine to further undergo simple imprisonment for one year and also to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/and in default of payment of fine to undergo simple imprisonment for three months for the offence punishable under Section 504 of IPC.

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The learned Senior Counsel for the applicant/appellant contended that the learned Trial Court convicted the applicant/ appellant without there being any evidence against him. He has further argued that the applicant has arguable case and has got a fair chance of acquittal. He has also contended that the applicant has a minor children and wife to support and there is no one in the family to support them, as such, the impugned judgment of conviction and order of sentence be suspended by allowing the instant application.

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3 Neutral Citation No. ( 2025:HHC:25671 )

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On the other hand, learned Deputy 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. It has been contended that in order to bring home the guilt of the applicant (appellant herein) prosecution examined 17 witnesses and the guilt of the applicant was proved beyond the reasonable doubt. It is further contended that the plea taken by the applicant that he has minor children and wife to support is not a justifiable ground to seek suspension of sentence. Lastly, it is prayed that the instant application, being devoid of merits, be dismissed.

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I have heard the learned Senior Counsel for the applicant/appellant as well as learned Deputy Advocate General for the non-applicant/State and have also gone through the material available on record.

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It is not in dispute that the applicant was on bail during trial and never misused the liberty so granted to him. In the case of

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Bhagwan Rama Shinde Gosai & others vs. State of Gujrat, (1999) 4 SCC 421, the Hon'ble Supreme Court was dealing with a case where the appellants before it were sentenced to rigorous imprisonment for ten years. Their application for suspension of

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4 Neutral Citation No. ( 2025:HHC:25671 )

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sentence was disallowed by the High Court and their motion for having their appeal expedited was also declined. In this factual background, the Hon'ble Supreme Court has held that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Relevant portion of the aforesaid judgment is reproduced as under:-

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“3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.”

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In Kiran Kumar v. State of M.P., (2001) 9 SCC 211 ,

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the Hon'ble Apex Court, while following its earlier decision in the

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case of Bhagwan Rama Shinde Gosai held as under:-

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"3. This Court has held in Bhagwanram Shinde v. State of

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5 Neutral Citation No. ( 2025:HHC:25671 )

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Gujarat, 1999 (4) SCC 421 that when a person is convicted and sentenced to a short term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the appellate Court should suspend the sentence, if its consequence would be danger to the society or any other similar difficulties.

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4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore deem it appropriate to interfere with the said order. We suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the trial Court."

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Thereafter, in the case of Suresh Kumar and Others

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Vs. State (NCT of Delhi), (2001) 10 SCC 338 , following the principle enunciated in the judgment of Bhagwan Rama Shinde

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Gosai , the Hon'ble Supreme Court held as below:-

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"5. This Court has stated in Bhagwan Rama Shinde Gosai v. State of Gujarat [(1999)4 SCC 421]: (SCC p.422, para 3)

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3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances."

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6. No exceptional circumstance has been highlighted by the learned Single Judge for deviating from the aforesaid course suggested by this Court. We, therefore, allow this appeal and order the suspension of the sentence of imprisonment passed on the appellants during the pendency of the appeal before the High Court. They shall be released on bail on each of them executing a bond with two solvent sureties to the satisfaction of the trial court."

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6 Neutral Citation No. ( 2025:HHC:25671 )

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8. In Omprakash Sahni v. Jai Shankar Chaudhary &

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another, (2023) 6 SCC 123 , the Hon'ble Supreme Court 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:-

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"33. Bearing in mind the aforementioned principles of law, the endeavor 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. To ascertain whether the convict has a fair chance of acquittal, what is to be looked into is something palpable. 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."

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In the case on hand, the maximum sentence of imprisonment awarded to the applicant-appellant is only five years. No exceptional circumstance has been pointed out by the learned Deputy Advocate General so as to decline the applicant’s prayer for suspension of the sentence. The appeal pertains to the year 2024 and the same is not likely to be taken up for hearing in the near future. The applicant/appellant, has already undergone

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7 Neutral Citation No. ( 2025:HHC:25671 )

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sentence of more than eight months and the sentence of imprisonment awarded to co-accused of the applicant has already been suspended. Hence, keeping in view the facts and circumstances of the case and the principles laid down by Hon'ble Supreme Court in the aforesaid decisions, it is ordered that the substantive sentence imposed upon the applicant/appellant, vide judgment of conviction/order of sentence, dated, 21.11.2024, passed by learned Additional Sessions Judge, Nahan, District Sirmaur, 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 depositing the fine amount, if not already deposited, within a period of two weeks from today, undertaking therein to appear in the Court as and when directed and in the event of the dismissal of the appeal, the applicant will surrender before the Court to undergo sentence, if any, imposed by the Court.

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The application stands disposed of.

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( Sushil Kukreja ) Judge

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August 01, 2025 (VH) VIRENDER Digitally signed by VIRENDERDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=18eda55445d72cca969ed3c0de8521667b971a178b11ea8f7a8dabfb5cebc1a2, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9bb134, CN=VIRENDERReason: I am approving this documentLocation: Date: 2025.08.01 15:29:36+05'30'Foxit PDF Reader Version: 2023.2.0

Anil Kumar v. State of Hp

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Anil Kumar v. State of Hp

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