Sumit vs State Of Himachal Pradesh

Vivek Singh Thakur, Judge

High Court of H.P.^{This application has been preferred by applicant-appellant} for suspension of his sentence awarded to him, vide judgment of conviction and order of sentence dated 26.09.2025, passed by Additional Sessions Judge, Fast Track Special Court (Rape/POCSO), Sirmaur, District at Nahan, H.P. in Sessions Trial No. 14-ST/7 of 2020, titled State of Himachal Pradesh vs. Sumit, arising from FIR No. 40/2020, dated 17.05.2020, registered at Police Station Pachhad, whereby he has been sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs. 20,000/- for offence punishable under Section 6 of the POCSO Act and in default of payment of fine to further undergo simple imprisonment for a period of two years and also to undergo rigorous imprisonment for 5 years and also to pay fine of Rs. 10,000/- for commission of offence under Section 363 of IPC and in default of payment of fine, to further undergo simple imprisonment for one year.

Learned counsel for the applicant-appellant has argued that keeping in view statement of victim recorded in the Court as PW-1 and statement recorded under 164 Cr.P.C., as well as contents of the application submitted by her at the time of seeking permission for abortion, clearly indicate that it was not a case of kidnapping or alluring the victim by the applicant-appellant and she has clearly stated role on her part, which has been considered as an offence by considering her minor, whereas from her statement, it is apparent that she had disclosed her date of birth as 25.03.2000 and as such, on the date of alleged commission of offence, i.e., in the year 2020, she was about 20 years old. Therefore, sentence awarded to the applicant-appellant deserves to be suspended during pendency of the appeal.

It has been submitted that applicant-appellant was on bail during pendency of trial and he did not abscond, rather he surrendered himself to serve the sentence on his conviction by the Trial Court.

Learned counsel for the applicant-appellant submits that applicant-appellant was compelled by the victim to accompany her by giving threat to commit suicide for not marrying with her, when her marriage was being proposed by one Deepak and the applicant-appellant was compelled by the victim to marry her.

It has been further submitted that there are discrepancies with regard to the evidence related to age of the victim and, therefore, by considering the statements of the victim as well as discrepancy in date of birth, there is a fair chance of acquittal of the applicant-appellant and, thus, sentence imposed/awarded to him deserves to be suspended.

Learned counsel for the applicant-appellant has referred examination-in-chief of PW-1 (victim), wherein she has stated that in the year 2020, she developed friendship with applicant-appellant Sumit who was running mobile repair shop at Narag, who also visited her house and had been expressing his intention to solemnize marriage with her. During that period, they developed physical relation with each other and in the meantime a sister of her village brought a proposal for her marriage with one Deepak, whereupon she disclosed this fact to applicant-appellant Sumit and asked him to solemnize marriage with threat that otherwise she would commit suicide.

Thereafter, on 10.05.2020, at 8:00 P.M., applicant-appellant reached her home and then both of them went to Solan and various places and stayed in the house of friend of victim, house of friend of applicant-appellant, Massi (aunt) and maternal grandmother of the applicant-appellant, and thereafter, she was recovered by the police.

Learned counsel for the applicant-appellant has also referred cross-examination of the victim, wherein she has admitted that she had a Facebook ID in her name and in the said ID, she had displayed her photograph along with date of birth as 25.03.2000.

Learned counsel for the applicant-appellant has submitted that victim has also admitted the statement made by her before Magistrate under Section 164, Cr.P.C. at the first instance, which has been exhibited as Ext. P-3/PW-1.

Referring the aforesaid statement, learned counsel for the applicant-appellant has submitted that it was stated by the victim that she had left her home on 10.05.2020 at about 8:00 P.M. by telling that she was going to her maternal uncle's house, living nearby to her home. Further, that both of them, Sumit and victim liked each other and she left the house by telling lie and went to Solan with Sumit and, thereafter, they stayed in the house of friend of victim. Thereafter, they stayed in the house of friend of applicant-appellant and, thereafter, they stayed in the house of maternal grandmother and aunt (Massi). She stayed along with Sumit in different places and she had accompanied Sumit with her will without telling her family members and applicant-appellant had not kidnapped her or allured her. She had further stated that no physical relation was developed between them. Lastly, she had expressed her desire not to take any action in the matter. The statement was duly verified by Judicial Magistrate.

Learned counsel for the applicant-appellant has submitted that at the time of medical examination on 08.06.2020, as recorded by Doctor in MLC (Ext. P4/PW-8), the victim had disclosed that she left house and stayed with her husband and moved to various places and sexual intercourse was done by her after marriage by her own will.

Learned counsel for the applicant-appellant has also referred photograph (Ext. P15/PW-24), wherein victim is wearing red suit along with bangles (marriage chooda), in her arms, indicating that she had solemnized marriage with the applicant-appellant. He has stated that this photograph is also corroborating the version of the victim that she compelled the applicant-appellant to accompany her and to solemnize marriage with her.

It has been further submitted that at the time of filing an application seeking permission for abortion, victim, on 08.06.2020, had written to President of Child Welfare Committee, Solan by stating that she had solemnized marriage according to her desire on 10.05.2020 with Sumit after fleeing from home and she was pregnant since last two months and as she was not able to bear responsibility of upbringing child, she had intended to seek permission for abortion.

Learned counsel for the applicant-appellant has submitted that in this application also, victim had clearly stated that she had married according to her desire with applicant-appellant.

Learned counsel for the applicant-appellant has also submitted that in examination-in-chief in the first line, the victim stated that her date of birth is 30.11.2003, whereas in cross-examination, she had admitted that she had displayed her date of birth along with her ID and photograph in the Facebook in her name, as 25.03.2000.

It has been submitted that in the Certificate (Ext. P-2/PW3), date of birth recorded in the school is stated to be 30.11.2004 and in Pariwar Register (Ext. P-1/PW22) also, date of birth of the victim has been recorded 30.11.2004.

Learned counsel for the applicant-appellant has submitted that from the display of date of birth as 25.03.2000, there was no occasion for the applicant-appellant to consider the victim as minor, and therefore, he acceded to the requests and threats of the victim to accompany her and to solemnize marriage with her, but for the date of birth recorded in the school, the victim has been considered as minor, and as consent of minor is immaterial, the applicant-appellant has been convicted for no fault on his part.

Learned counsel for the applicant-appellant has also referred statement of mother of victim recorded as PW-2, wherein she has stated that initially victim had refused for her medical examination, but later became ready and her medical examination was conducted. He has also submitted that it has come in evidence of prosecution that during the period when she eloped with Sumit, she had been continuously talking with her sister, but was not picking up call of her parents.

Learned Deputy Advocate General has submitted that it has proved on record by producing the Certificate of date of birth from the school (Ext. P-2/PW3) that at the time of incident, victim was minor and she became pregnant due to her violation by the applicant-appellant during the period when she was accompanying him, and being a minor, consent of victim is immaterial, and therefore, Trial Court has rightly convicted the applicant-appellant for commission of offense under Section 363 & 376, IPC and Section 6 of POCSO Act and for evidence on record, the applicant-appellant is not entitled for suspension of sentence, as there is no likelihood of his acquittal in the light of evidence on record.

Considering the rival contentions of parties, in the given set of evidence on record, we are of the opinion that sentence imposed upon applicant-appellant may be suspended during pendency of the appeal.

Accordingly, substantive sentence awarded to the applicant-appellant Sumit is ordered to be suspended during pendency of the appeal, subject to furnishing personal bond in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of Trial Court, with undertaking therein to appear before this Court as and when directed and in the event of dismissal of the appeal, to surrender before the Court, to serve the remaining sentence.

During suspension of sentence, applicant-appellant Sumit shall not involve in commission of illegal and/or unlawful act, much less in commission of similar offence and such involvement shall result cancellation of suspension of sentence.

Bail bonds so furnished shall be transmitted by the Trial Court to the Registry of this Court for placing the same on record.

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 present application.

Parties are permitted to produce a copy of this order downloaded from the web-page of the High Court of Himachal Pradesh, before the Trial Court, and the Trial Court shall not insist for production of certified copy of order, rather Trial Court shall verify passing of this order from the Web-page of the High Court.

Application is allowed and disposed of in aforesaid terms.