Allowed¶54

Nikhil v. State of Hp

Himachal Pradesh HC7 May 2025CRMP/951/2025

Case brief

AI extract

What is this about?

Suspension of sentence and bail — S. 430 BNSS 2023 — conviction under S. 302 IPC r/w S. 120-B IPC, life sentence — applicant admittedly not present on spot, only keeping watch — no prima facie conspiracy — custody approx. 9 years 5 months — appeal of 2024 not likely to be heard soon — Kishori Lal, Madhukar Wamanrao Smarth, Vasant Tukaram Pawar, Om Prakash Sahni applied — personal bond Rs. 50,000 with one surety — deposit of fine Rs. 20,000 — no comment on merits.

What did the court decide?

Suspension of the substantive sentence of imprisonment imposed on the applicant/appellant till final disposal of Cr. Appeal No. 556 of 2024 and release on bail, subject to furnishing a personal bond of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court and deposit of the fine amount of Rs. 20,000/-. ¶54

Nikhil Vs State of Hp — Murder and Culpable Homicide | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the substantive sentence of imprisonment for life awarded to the applicant/appellant Nikhil should be suspended and he released on bail pending disposal of his appeal (Cr. Appeal No. 556 of 2024).

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Court's answer

On the prosecution's own evidence (PW-31, the investigating DSP, admitting in cross-examination that the applicant was not present on the spot and was standing on the way keeping a watch), the applicant had prima facie not entered into any conspiracy with the co-accused to commit the murders of Abhi Ram and Ablu Devi, and the fact that the co-accused would commit the offence of murder was not within his knowledge.

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Ratio / Principle

Applying the tests enunciated by the Supreme Court in Kishori Lal, State of Maharashtra v. Madhukar Wamanrao Smarth, Vasant Tukaram Pawar and Om Prakash Sahni, and weighing the nature of the offence and its social implications vis-a-vis the applicant's liberty, his incarceration of approximately nine years and five months, and that the 2024 appeal is not likely to be heard in the near future, the present case is not one of the exceptional cases in which the prayer for suspension of sentence should be refused.

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Key takeaways

The substantive sentence imposed on the applicant shall remain suspended till final disposal of the appeal, subject to furnishing a personal bond of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court and deposit of the fine amount of Rs. 20,000/-; on furnishing the requisite bail bonds he is to be released forthwith, with an undertaking to appear before the Court as directed and to surrender if the appeal is dismissed.ratio¶54
Any expression of opinion in this order does not constitute an expression of opinion on the merits of the case; the observations were made only for the purpose of deciding the present application.obiter¶55

Detailed headnote1 paragraphs

Application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by Nikhil, convicted under Section 302 IPC read with Section 120-B IPC and sentenced to imprisonment for life with fine of Rs. 20,000/- (judgment dated 16.09.2024, Additional Sessions Judge, Rohru, Camp at Theog, in Sessions Trial RBT No. 25-T/7 of 2024/2016), seeking suspension of sentence and bail pending Cr. Appeal No. 556 of 2024. Held: (i) PW-31 Gauri Dutt Sharma, DSP (IO), admitted in cross-examination that the applicant was not present on the spot at the time of the occurrence and was standing on the way keeping a watch while the co-accused went to the deceased's house to purchase charas; prima facie, therefore, he had not entered into any conspiracy to murder Abhi Ram and Ablu Devi and the murderous design was not within his knowledge; (ii) applying Kishori Lal (2004) 7 SCC 638, State of Maharashtra v. Madhukar Wamanrao Smarth (2008) 5 SCC 721, Vasant Tukaram Pawar (2005) 5 SCC 281 and Om Prakash Sahni (2023) 6 SCC 123, and considering that the applicant had undergone approximately nine years and five months and the 2024 appeal was unlikely to be heard soon, the case was not exceptional so as to refuse suspension; (iii) sentence suspended till final disposal of the appeal on personal bond of Rs. 50,000/- with one surety in the like amount and deposit of the fine of Rs. 20,000/-, without expressing any opinion on the merits.

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1 Neutral Citation No. ( 2025:HHC:13637 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. MP No. 951 of 2025 in Cr. Appeal No. 556 of 2024 Decided on: 07.05.2025

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_____________________________________________________ Nikhil …..Appellant/applicant. Versus State of Himachal Pradesh ……Respondent/non-applicant. ____________________________________________________ Coram_

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The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? No.

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_____________________________________________________ For the applicant: Mr. N.S. Chandel, Senior Advocate, with Mr. Narender Singh Thakur & Mr. Vinod Gupta, Advocates. For the non-applicant/State: Mr. I.N. Mehta, Senior Additional Advocate General, Mr. Navlesh Verma and Ms. Sharmila Patial, Additional Advocates General, Mr. J.S. Guleria and Mr. Raj Negi, Deputy Advocate General.

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Sushil Kukreja, Judge.

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This order shall dispose of application, filed by the applicant/appellant Nikhil, under Section 430 of The Bharatiya Nagarik Suraksha Sanhita , 2023, seeking suspension of sentence awarded by the learned Additional Sessions Judge, Rohru, Camp at Theog, District Shimla, H.P., dated 16.09.2024, in Sessions Trial RBT No. 25-T/7 of 2024/2016, for the commission of offence punishable under Section 302 of Indian Penal Code (for short

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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:13637 )

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‘IPC’) read with Section 120-B IPC, and releasing him on bail.

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The learned Senior Counsel for the appellant/applicant contended that the appellant/applicant has got a very good arguable case on merits, as the evidence relied upon by the learned Trial Court is shaky, thus not tenable in the eyes of law. He also contended that there are material contradictions in the statements of the prosecution witnesses, which the learned Trial Court has lightly brushed aside. He also contended that the applicant has undergone sentence of nine years four months and twelve days, as against the total awarded sentence of imprisonment for life and the appeal is not likely to be decided in near future, therefore, in view of the peculiar facts and circumstances of the case, the sentence imposed upon the appellant/application by the learned Trial Court be suspended in the interest of justice and fair play.

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Per contra the learned Senior Additional Advocate General contended that the appellant/applicant is not entitled for suspension of sentence, as the learned Trial Court found him guilty and convicted him in a heinous crime of committing murder. It is further contended that after the judgment of conviction, there is no presumption of innocence in favour of the appellant/applicant and the instant application, being devoid of merits, deserves to be

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3 Neutral Citation No. ( 2025:HHC:13637 )

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dismissed.

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We have heard the learned Senior counsel for the applicant/appellant as well as learned Senior Additional Advocate General and have also gone through the material available on record.

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The perusal of the record reveals that learned Additional Sessions Judge, Rohru, Camp at Theog, District Shimla, H.P., vide judgment of conviction and order of sentence, dated 16.09.2024, convicted the applicant/appellant Nikhil along with Rakshak Khachi and Nitin under Section 302 IPC read with Section 120-B IPC and sentenced all of them to undergo imprisonment for life and to pay fine of Rs.20,000/- each and in default of payment of fine to further undergo imprisonment for six months.

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The case of the prosecution is that on 24.01.2016 accused persons, i.e., Rakshak Khachi, Nikhil (applicant herein) and Nitin committed murder of Abhi Ram and Ablu Devi after conspiring with each other.

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The learned Senior Counsel for the applicant contended that the case of the prosecution is based on circumstantial evidence and there was no direct evidence against the accused. He further contended that the presence of

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4 Neutral Citation No. ( 2025:HHC:13637 )

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applicant/appellant Nikhil on the given date, time and place was not proved by the prosecution.

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It is the admitted case of the prosecution that the applicant/appellant Nikhil was not present on the spot at the time of occurrence. The case of the prosecution itself is that accused persons had called the deceased Abhi Ram for purchasing charas from him. PW-31 Gauri Dutt Sharma, Deputy Superintendent of Police, who investigated the case, admitted in his crossexamination that during the interrogation of the accused persons, it was unearthed that while moving towards the place of occurrence on 24.01.2016, accused Rakshak Khachi made a call to deceased Abhi Ram, through mobile number of accused Nikhil Chandel and the accused persons called Abhi Ram (deceased) for purchasing charas from him. He further admitted in his cross-examination that as per his investigation, when the alleged incident occurred with Abhi Ram and Ablu Devi, accused Nikhil Chandel was not present on the spot and he was standing on a way towards the spot for keeping a watch.

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Thus, the aforesaid evidence on record, prima facie, makes it clear that the applicant/appellant Nikhil Chandel had not entered into any conspiracy with other co-accused persons to commit the murder of Abhi Ram and Ablu Devi on 24.01.2016

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5 Neutral Citation No. ( 2025:HHC:13637 )

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rather he was keeping a watch by standing on the way to check, if anybody came to the spot and to alert his co-accused Rakshak Khachi and Nitin Verma while they had gone to the house of Abhi Ram to purchase charas . The learned Trial Court has also noticed in its judgment that accused Nikhil Chand kept a watch by standing on the way to check, if anybody came to the spot and to alert his co-accused Rakshak Khachi and Nitin Verma. Thus, prima facie, it appears that the fact that his co-accused persons would commit the offence of murder of Abhi Ram and Ablu Devi was not within the knowledge of applicant/appellant Nikhil Chandel as the coaccused persons had gone to the house of Abhi Ram to purchase charas from him and they had told the accused Nikhil Chand to keep a watch by standing on the way and to alert them if anybody came to the spot. As observed earlier, as per the case of prosecution itself, the applicant/appellant Nikhil was not present on the spot at the time of occurrence.

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In case titled Kishori Lal Vs. Rupa & Ors., reported as 2004 (7) SCC 638, it has been held that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted, after taking into consideration relevant factors like nature of accusation, manner in which the crime is alleged to have been committed,

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6 Neutral Citation No. ( 2025:HHC:13637 )

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gravity of the offence and the desirability of releasing the accused

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on bail after they have been convicted for committing the serious offence of murder. The relevant observations, which find place in

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Para 6, run as under:

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"6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of 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 is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view."

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In State of Maharashtra vs. Madhukar Wamanrao

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Smarth, (2008) 5 SCC 721 , the Hon'ble apex Court referred to the parameters delineated in Kishori Lal vs. Rupa & others, (2004) 7

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SCC 638 to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail and reiterated the view taken in Vasant Tukaram Pawar vs. State of

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Maharashtra, (2005) 5 SCC 281 . The relevant part runs as under:

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“10. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail have been highlighted by this Court in many cases. In Kishori Lal v. Rupa it was observed as follows:

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"4. Section 389 of the Code of Criminal Procedure, 1973 (in short “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 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 on his own bond. The requirement of recording reasons in writing clearly indicates that

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7 Neutral Citation No. ( 2025:HHC:13637 )

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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.

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The above position was reiterated in Vasant Tukaram Pawar v. State of Maharashtra (2005 (5) SCC 281)"

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In a recent judgment by the Hon’ble Apex Court in

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Om Prakash Sahni vs. Jai Shankar Chaudhary and another,

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(2023) 6 Supreme Court Cases 123 , it has been held that a case in which, ultimately the convict appears to be entitled to have an acquittal at the hands of the Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. The

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relevant portion of the aforesaid judgment reads as under:

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24. From perusal of Section 389 of the Cr. PC, 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 the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the preconviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the Cr. PC.

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25 to 32 xxx xxx xxx xxx xxx xxx xxx

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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 above said 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 take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be

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8 Neutral Citation No. ( 2025:HHC:13637 )

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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………..”

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We have applied the test of the principles

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enunciated by the Hon’ble Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the appellant/applicant. In the background of the evidence available on record, the present case cannot be said to be one of the exceptional cases in which prayer for suspension of sentence should be refused as the applicant/appellant Nikhil was admittedly not present on the spot at the time of occurrence. The sentence imposed upon the applicant is imprisonment for life and he has already undergone incarceration approximately for a period of nine years and five months and thus cannot be made to suffer further incarceration on such evidence as the appeal which pertains to the year, 2024 is not likely to be taken up for hearing in near future.

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Hence, keeping in view the aforesaid background of the present case, we are of the opinion that it is a fit case for bail and suspension of sentence of imprisonment. Therefore, while refraining to make any comment on merits of the case, the

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9 Neutral Citation No. ( 2025:HHC:13637 )

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substantive sentence imposed upon the applicant/appellant by learned Additional Sessions Judge, Rohru, Camp at Theog, district Shimla, H.P., in Session Trial RBT No. 25-T of 2024/2016, vide judgment of conviction and order of sentence, dated 16.09.2024, shall remain suspended till final disposal of the appeal, however, subject to the applicants’ 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 deposit of fine amount of Rs.20,000/-. On furnishing the requisite bail bonds, 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.

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Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of.

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( Tarlok Singh Chauhan ) Judge

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( Sushil Kukreja ) Judge

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7^th May, 2025 (virender)

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VIRENDER BAHADUR Digitally signed by VIRENDER BAHADURDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa738990a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9bb134, CN=VIRENDER BAHADURReason: I am the author of this documentLocation: Date: 2025.05.13 15:29:31+05'30'Foxit PDF Reader Version: 2023.2.0

Nikhil v. State of Hp

Case brief

What is this about?

What did the court decide?

Nikhil v. State of Hp

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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