Jharkhand High Court
Sanoj Munda vs The State Of Jharkhand on 23 March, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1127 of 2022
With
I.A. No. 1770 of 2026
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Sanoj Munda, aged about 25 years, son of Lalku Munda, resident of
Gobersela, Areya Tangra Toli, P.O. and P.S.- Senha, District
Lohardaga, Jharkhand ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr.Rajiv Ranjan, Advocate
For the Respondent : Mr.Saket Kumar, A.P.P.
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rd
06/Dated: 23 March, 2026
Per Sujit Narayan Prasad, J.
I.A. No. 1770 of 2026:
1. The instant interlocutory application has been filed on behalf of applicant under section 389(1) of Cr.P.C.for suspension of sentence in connection with the judgment of conviction and order of sentence dated 17.06.2022 passed by the learned Additional Sessions Judge-I-
cum- Special Judge (POCSO), Lohardaga in Special POCSO Case No. 33 of 2021, whereby and whereunder,the appellant / applicant namely Sanoj Munda has been convicted for the offences under Section 376 (DA) of the Indian Penal Code and also under Section 6 of the POCSO Act and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.20,000/- for committing the offence punishable u/s 376(DA) IPC and in default of payment of fine amount, the applicant has been ordered to further undergo RI for three months. In view of Section 42 of POCSO Act, no separate sentence has been passed under section 6 of POCSO Act.
Factual Matrix
2. The prosecution story in nut shell is that informant along with her minor daughter (victim) was working in brick manufacturing unit at Naudi. When Informant noticed change in physical structure of her daughter (victim) then Informant enquired the matter from her daughter (victim) then victim narrated that in January 2021 at 9.00 Page | 1 PM Gyanchandra Oraon, Naresh Oraon and Sanoj Munda (present applicant/appellant) who were also working in bricks manufacturing unit visited victim's house and they caught her legs and hands. They also gagged her mouth by dupatta. Thereafter accused persons namely Gyanchandra Oraon, Naresh Oraon and Sanoj Munda raped her one by one. They also threatened victim for dire consequences if she narrated the story to someone.
3. Thereafter, informant had reported the entire matter to the concerned Police Station and thereafter FIR was lodged vide Mahila PS Case no. 26/2021 for the offences u/s 376D, 506 IPC and section 6 POCSO Act.
4. During investigation, Police got the statement of victim recorded u/s 164 Cr.P.C. during which victim substantiated the prosecution story and after investigation Police submitted charge-sheet against accused persons, namely, Gyanchandra Oraon, Naresh Oraon and Sanoj Munda for the offences U/s 376D, 506 IPC and Section 6 POCSO Act.
5. Accordingly, cognizance was taken u/s 376DA of the I.P.C. and Section 6 of the POCSO Act against the accused persons including the present appellant and consequent thereto trial was commenced wherein the accused persons pleaded not guilty and claimed to be tried.
6. The learned trial Court after appreciation of the evidence had convicted all the accused persons including present applicant for the offences under Section 376 (DA) of the Indian Penal Code and also under Section 6 of the POCSO Act and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.20,000/- for committing the offence punishable u/s 376(DA) IPC and in default of payment of fine amount, the applicant has been ordered to further undergo RI for three months and in view of Section 42 of POCSO Act, no separate sentence has been passed under section 6 of POCSO Act.
7. The present appellant aggrieved with the impugned judgment of conviction and sentence has preferred the appeal before this Court Page | 2 and during pendency of the appeal the applicant/appellant had preferred an interlocutory application being I.A.N0. 1464 of 2023 for suspension of sentence.
8. The aforesaid interlocutory application was dismissed vide order dated 17.10.2023 on merit by this Court, thereafter the instant interlocutory has been preferred for suspension of sentence during pendency of the instant appeal.
Submission of the learned counsel for the appellant/applicant
9. Mr. Rajiv Ranjan, learned counsel for the applicant has submitted that earlier IA No. 1464 of 2023 had been filed by the applicant for grant of suspension of sentence but the same was dismissed by this court vide order dated 17.10.2023.
10. The learned counsel for the applicant has reiterated the grounds which he had taken on the earlier occasion while arguing for suspension of sentence in IA No. 1464 of 2023.
11. Further the learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case merely because he was acquainted with the co-accused persons, who had enmity with the informant and her family.
12. It has further been submitted that the appellant/applicant ever since his detention has remained in Judicial custody throughout the trial and continue to be in custody till date i.e. for about approx., 5 years, and based upon the same the prayer has been made for suspension of sentence in connection with the present case.
13. It is further stated that co-accused persons, namely, Gyanchandra Oraon and Naresh Oraon have been granted bail vide order dated 18.11.2025 passed by the co-ordinate Bench of this Court in I.A. No. 10415 of 2025 [Cr. Appeal (DB) No. 1107 of 2022] and the case of the applicant is on similar footing, hence, the prayer for suspension of sentence of the applicant, during pendency of the appeal, may be allowed.
Submission of the learned APP for respondent-state Page | 3
14. While, on the other hand, Mr. Saket Kumar, learned Additional Public Prosecutor appearing for the respondent-State has vehemently opposed the prayer for suspension of sentence.
15. It has been submitted that earlier the co-convict namely Gyanchandra Oraon and Naresh Oraon against whom parity has been claimed had filed an Interlocutory Application being I.A. No. 9201 of 2022(Cr. Appeal (DB) No. 1107 of 2022) before the co-ordinate Bench of this Court and the said interlocutory application of the co-convicts had been dismissed vide order dated 06.03.2024 after due appreciation of merit of the case. Thereafter the said co-convicts had again preferred an interlocutory application being I.A. (Cr.) No. 10415 of 2025 [Cr. Appeal (DB) No. 1107 of 2022] for suspension of the sentence and the co-ordinate Bench of this Court again delved into merit of the case and has allowed the prayer of the suspension of sentence of the said co-convicts.
16. The learned Special Public Prosecutor by referring the aforesaid fact has submitted that order dated 06.03.2024 passed in I.A. No.9201 of 2022 by which prayer for suspension of sentence of the said co- convicts was dismissed on merit has not been assailed before the higher forum i.e. Hon'ble supreme court and thereafter again I.A was filed for the same relief before the co-ordinate Bench and the co- ordinate Bench again delving into merit of the case has allowed the same vide order 18.11.2025, therefore, the benefit of parity should not be granted to the present applicant/appellant.
17. It has further been contended by the learned counsel for the State that merely because the co-accused persons have been granted privilege of suspension of sentence, the suspension of sentence of the applicant may not be suspended taking into consideration the nature of crime committed by him. He has further stated that the victim in her statement under section 164 Cr.P.C has fully corroborated the prosecution version as has been stated in the First Information Report.
18. Learned Additional Public Prosecutor, based upon the aforesaid grounds, has seriously opposed the prayer so made in the instant Page | 4 interlocutory application and has submitted that since earlier the prayer for suspension of sentence of the appellant/applicant has already been dismissed on merit and further there is no change in the circumstances or fact of the case, as such, the prayer for suspension of sentence of the appellant no.1 is fit to be dismissed.
Analysis:
19. We have heard the learned counsel for the parties and gone through the impugned judgment as also the learned trial court record.
20. It needs to refer herein that the prayer for suspension of sentence of the present appellant no. 1 has already been considered by this Court and vide order dated 17.10.2023 passed in interlocutory application being IA No. 1464 of 2023 the same has been rejected on merit.
21. This Court, on perusal of the order dated 17.10.2023 passed in IA No. 1464 of 2023 has found the ground taken on behalf of the appellant as also the objection raised on behalf of the learned State counsel, thereafter, the Court has considered the issue on merit as would be evident from relevant paragraphsof the aforesaid order, for ready reference the said paragraphs are being quoted as under:
3. It has been contended that although the PW-1, victim girl has supported the prosecution version and remained consistent, what she has stated while recording her statement under Section 164 of Cr.P.C., but the victim, after giving birth of a child, who was subjected to DNA analysis / test, wherein the report has come of not founding the appellant to be a biological father of the said newly born baby, hence, it is incorrect on the part of the prosecution to say that the victim was subjected to the physical relationship, said to have been committed by the appellant herein. The Learned counsel appearing for the appellant, based on the aforesaid premise has submitted that it is a fit case, where the sentence is to be suspended.
4. Mr. Saket Kumar, learned Additional Public Prosecutor appearing for the State has vehemently opposed the prayer for suspension of sentence on the ground that the victim has fully corroborated the prosecution version, who was having the age of 14 years at the time of commission of crime.
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5. It has been submitted that she has supported the prosecution case while recording the statement under Section 164 of Cr.P.C. Submission has also been made that since the prosecution version has fully been supported by the victim, mainly the DNA test found to be in-corroboration, so far as the biological father of the newly born baby is concerned, the prosecution version cannot be disbelieved.
6. Learned Additional Public Prosecutor, based on the aforesaid premises has submitted that the prosecution has fully been able to substantiate the charge as alleged as per the FIR, based upon the testimony of PW-1 and remained consistent in the cross-examination as also while recording her statement under Section 164 of the Cr.P.C., it is not a fit case for suspension of sentence.
7. We have heard learned counsel for the parties and have gone through the impugned order and also the testimony of the victim.
8. From the testimony of the victim, who has been examined as PW-1 and she has fully corroborated the prosecution version, it isevident that the appellant along with one Gyanchand and Naresh had committed gang rape. She had not disclosed the said fact to her mother. She has further deposed that due to the aforesaid physical relationship, she conceived and when there was some fundamental change on her body, then on being asked by her mother, she has disclosed the entire story of commission of rape by Gyanchand, Naresh and Sanoj, the appellant herein and thereafter the case was instituted.
9. It is also evident that the statement of the victim was recorded under Section 164 of the Cr.P.C., which has been marked as Ext.-1/1. We have gone through the statement recorded under Section 164 of the Cr.P.C., wherein she has supported the prosecution version as has been stated in the First Information Report.
10. The ground, which has been taken by the appellant that such statement of the PW-1 cannot be said to be corroborative piece of evidence, based upon the DNA repot.
We are not in agreement with such submission, since, even if going the DNA test, the testimony of the PW-1, who remained consistent, what she has deposed in the First Information Page | 6 Report and the statement recorded under Section 164 of the Cr.P.C.
11. Therefore, we are of the view that it is not a fit case for suspension of sentence.
12. Accordingly, the instant interlocutory application being I.A. No. I.A. No.1464 of 2023 is hereby rejected and disposed of, however, any observation made will not prejudice, since the appeal is pending for final hearing before this Court.
22. It is evident from aforesaid paragraphs that the PW-1 the victim in her testimony has fully corroborated the prosecution versions. She has disclosed the entire story of commission of gang rape by the applicant and other co-accused.
23. From the testimony of the victim, who has been examined as PW-1 and she has fully corroborated the prosecution version, it is evident that the appellant along with one Gyanchand and Naresh had committed gang rape. She had not disclosed the said fact to her mother. She has further deposed that due to the aforesaid physical relationship, she conceived and when there was some fundamental change on her body, then on being asked by her mother, she has disclosed the entire story of commission of rape by Gyanchand, Naresh and Sanoj, the appellant herein and thereafter the case was instituted.
24. It is also evident that the victim in her statement recorded under section 164 Cr.P.C. has fully supported the prosecution version. The applicant has been alleged to be involved in the commission of crime.
25. Since earlier the prayer for suspension of sentence of the present applicant has already been rejected by this Court, therefore The learned counsel for the applicant has emphatically raised the issue of parity by stating that the co-accused persons, namely, Gyanchandra Oraon and Naresh Oraon have been granted bail vide order dated 18.11.2025 passed by the co-ordinate Bench of this Court in I.A. No. 10415 of 2025 [Cr. Appeal (DB) No. 1107 of 2022] and the case of the applicant is on similar footing, hence, the prayer for Page | 7 suspension of sentence of the applicant, during pendency of the appeal, may be allowed.
26. Per contra the learned APP has submitted that earlier the co-convict namely Gyanchandra Oraon and Naresh Oraon against whom parity has been claimed had filed an Inter-locutory Application being I.A. No. 9201 of 2022 (Cr. Appeal (DB) No. 1107 of 2022) before the co- ordinate Bench of this Court and the said interlocutory application of the co-convicts had been dismissed vide order dated 06.03.2024 after due appreciation of merit of the case. Thereafter the said co-convicts had again preferred an interlocutory application being I.A. (Cr.) No. 10415 of 2025 [Cr. Appeal (DB) No. 1107 of 2022] for suspension of the sentence and theco-ordinate Bench of this Court again delved into merit of the caseand has allowed the prayer of the suspension of sentence of the said co-convicts.
27. Referring the aforesaid fact the learned counsel for state has submitted that since the earlier order of rejection of suspension of sentence of the co-convicts has not been assailed before higher forum and even then the co-ordinate Bench again delving into merit of the case has allowed the subsequent prayer for suspension of sentence of the said co-convicts by taking different view which is not permissible in the eye of law, therefore the benefit of parity cannot be extended to the present applicant
28. In the aforesaid context this Court has gone through the order dated 06.03.2024 passed in I.A. No. 9201 of 2022 (Cr. Appeal (DB) No. 1107 of 2022) by which prayer for suspension of the sentence of the co-convicts has been rejected by the co-ordinate Bench of this Court.For ready reference the relevant paragraph of the order dated 06.03.2024 passed in I.A. No. 9201 of 2022 by which prayer for suspension of sentenced of the co-convicts namely Gyanchandra Oraon and Naresh Oraon has been rejected is being referred herein which reads as under:
3. Heard the learned counsel for the appellants and learned A.P.P for the State and have gone through the impugned judgment, the evidence and the Trial Court Records.
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4. Learned counsel for the appellants submits that the First Information Report was lodged after seven months. He further submits that the victim has stated that because the accused were shown to the victim in the Police Station, she could identify them in the Court.
5. Opportunity was given to the State to oppose the bail, which the State availed and opposed.
6. Be that as it may and after going through the statement of the victim, we find that the victim is aged about 14 years at the time of occurrence; there is direct allegation against the appellants and the Doctor's report also suggests that the victim is pregnant. Thus we are not inclined to allow this interlocutory application. Accordingly, the prayer for bail of the appellants, named above, during pendency of this appeal is rejected.
7. This interlocutory application is dismissed.
29. From the perusal of the aforesaid order, it is evident that the co-
ordinate Bench of this Court while rejecting the prayer for suspension of sentence of said the co-convicts namely Gyanchandra Oraon and Naresh Oraonon merit, has taken into consideration the fact that P.W-1 who is the victim is consistent with respect to the commission of rape upon her repeatedly by the said co-convicts and the present applicant. The co-ordinate Bench has further observed that the Doctor's report also suggests due to the said crime the victim is pregnant.
30. It is pertinent to mention herein that after rejection of prayer for suspension of sentence the said co-convicts has again moved an application being I.A. (Cr.) No. 10415 of 2025 [Cr. Appeal (DB) No. 1107 of 2022]for suspension of sentence and vide order dated 18.11.2025, the said application was allowed by the Co-ordinate Bench after again going into merit of the case, for ready reference the relevant paragraphs of the said order are being quoted as under:
3. Heard, the learned counsel for the appellants and learned A.P.P. for the State and have gone through the impugned judgment, the evidence and the Trial Court Records.
4. Opportunity was given to the State to oppose the bail, which the State availed and opposed.
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5. From the evidence and the material on record, we find that the victim and the appellants are related to each other and they are niece and the uncles. Surprisingly in the evidence, the victim stated that she does not know these appellants neither she has any relationship with them, but the I.O. also stated that there is relationship between them and they are niece and uncles.
Further, it is apparent that the FSL report does not suggest that there was any rape committed by these appellants upon the victim.
6. Considering the aforesaid fact, the period of custody and the fact that in near future there is no likelihood of this appeal to be taken up, appellants, named above are directed to be released on bail during the pendency of this appeal, on furnishing bail bonds of Rs.10,000/- (Rs. Ten Thousand) each with two sureties of the like amount each to the satisfaction of the learned Special Judge (POCSO), Lohardaga, in connection with Special POCSO Case No. 33 of 2021 with a condition that one of the bailers must be a close relative of the appellants and with a further condition that the appellants shall appear and mark their attendance before the Registrar, Civil Court, Lohardaga once in every six months till the disposal of this appeal.
7. Accordingly, the instant interlocutory application being I.A. No.10415 of 2025 stands allowed.
31. It is evident from perusal of the aforesaid order that the co-ordinate Bench of this Court while allowing the prayer for suspension of sentence of the said co-convicts has taken into consideration the different factual aspect of the case and has observed that the victim and the appellants are related to each other and they are niece and the uncles. Surprisingly in the evidence, the victim stated that she does not know these appellants neither she has any relationship with them, but the I.O. also stated that there is relationship between them and they are niece and uncles. Further, it is apparent that the FSL report does not suggest that there was any rape committed by these appellants upon the victim.
32. It needs to refer herein that from perusal of the aforesaid order it is also evident that the co-ordinate Bench has also taken note of the order dated 06.03.2024 passed in I.A. No. 2073 of 2022 by which Page | 10 prayer for suspension of sentenced of the co-convicts has been rejected.
33. Thus, from the aforesaid it is evident that the coordinate Bench had taken the different view on different date, even in the case where after post-conviction there is no change in the circumstances and the factual aspect of the case, then question arises herein that in the said circumstances whether benefit of parity can be extended to the present appellant.
34. It needs to refer herein that the law is well settled that it is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, 2023 SCC OnLine SC 1486.
35. It is further settled connotation of law that Court cannot exercise its power in a capricious manner and has to consider the totality of circumstances before granting bail and by only simply saying that another accused has been granted bail is not sufficient to determine whether a case for grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are Page | 11 oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail.---- "
36. Recently, the Hon'ble Apex Court in the case of Sagar Vs. State of UP &Anr., 2025 INSC 1370 has categorically observed that while utilizing parity as a ground for bail, the same must focus on the role of the accused and cannot be utilized solely because another accused person was granted bail in connection with the same offence, and neither can this ground be claimed as a matter of right, the relevant paragraphs are being quoted as under:
"12. The High Court appears, plainly, to have erroneously granted bail to the accused-respondent on the sole ground of parity which it has misunderstood as a tool of direct application as opposed to parity being focused on the role played by the accused and not the thread of the same offence being the only common factor between the accused persons. On this count alone we can set aside the impugned judgment and order. However, we propose not to do so and proceed to delve further.
14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law. The word "parity‟ is defined by the Cambridge Dictionary as "equality, especially of pay or position." When weighing an application on parity, it is "position‟ that is the clincher. The requirement of "position‟ is not met only by involvement in the same offence. Position means what the person whose application is beingweighed, his position in crime, i.e., his role etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and not with someone who was part of the group to intimidate the other by Page | 12 the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon."
37. In the backdrop of the aforesaid settled position of law, we proceed to delve further.
38. It is admitted fact that earlier vide order dated 06.03.2024 by which the prayer for suspension of sentence of the said co-convicts have been rejected by the co-ordinate Bench by taking note of the consistent statement/deposition of the prosecutrix/victim (P.W.1), but on 18.11.2025 the co-ordinate Bench after taking into consideration the different aspect/facts, has allowed the prayer for suspension of said co-convicts.
39. We are not making any comment on the order passed by the learned Co-ordinate Bench, since we are not sitting in appeal. But since the issue of parity has been raised, as such, the aforesaid observation is required to be made for appreciation of the arguments advanced by the learned counsel for parties.
40. Earlier, this Court while rejecting the prayer for suspension of sentence vide order dated 17.10.2023 has already expressed its view on merit. It is evident that this Court has specifically taken into consideration the culpability of the present appellant in the alleged crime which has been fully been substantiated by the prosecutrix (P.W.1). This Court has also taken into consideration from the testimony of the victim, who has been examined as PW-1 and she has fully corroborated the prosecution version and her testimony she had deposed that she was raped by the present appellant along with co-convicts but she had not disclosed the said fact to her mother. She has further deposed that due to the aforesaid act(gang rape), she conceived and when there was some fundamental change on her body, then on being asked by her mother, she has disclosed the entire story of commission of rape.
41. On the basis of discussion made hereinabove this Court, therefore, is of the view that theprinciple of parity cannot be made applicable herein.
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42. Further at this juncture it needs to refer herein that the Court while considering the application for suspension of sentence and grant of bail, is to consider only the prima facie merits of the appeal. Further it is settled position of law that there is difference between grant of bail in case of pre-trial arrest and suspension of sentence, post- conviction. In the earlier case, there may be presumption of innocence, 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 and the principle of bail being the rule and jail an exception is not attracted, if there is conviction upon trial, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of Preet Pal Singh vs. State of U.P., (2020) 8 SCC 645.For ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post-conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts andcircumstances 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."
43. Thus, it is evident from the aforesaid judgment that during consideration of suspension of sentence which is the post-conviction Page | 14 stage, the presumption of innocence in favour of the accused cannot be available and at this stage, the Court's only duty is to see that the prima- facie case is made out or not, as such, the detailed appreciation of evidence is not required at this stage. It has further been observed by the Hon'ble Apex Court that 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.
44. Further, it is settled connotation of law that the appellate court should not reappreciate the evidence at the stage of consideration of suspension of sentence 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 and at this stage Court is only to see the prima facie case for its satisfaction.
45. So far, the other contention is concerned that the appellant has remained in custody for seven years out of maximum imposed sentence of life-imprisonment, as such on this ground alone the prayer for suspension of sentence may be allowed.
46. So far as about 5 years of custody against the sentence of life imprisonment is concerned, it is settled position of law that merely on the ground of custody, the sentence is not to be suspended, rather, the custody can be one of the ground coupled with the attributability of accused as has been found and substantiated in course of trial.
47. It is the settled position of law that the period of custody cannot be the sole ground for suspension of sentence, rather, the nature of crime as has been found to be proved against one or the other, the appellant herein, is to be taken into consideration and even if the convict has completed substantive sentence, that cannot be a sole ground forsuspension of sentence if the nature of offence having been proved in course of trial is serious.
48. The Hon'ble Apex Court in the case of Shivani Tyagi v. State of U.P. & Anr. 2024 INSC 343 has categorically observed that mere factum of sufferance of incarceration for a particular period and Page | 15 likelihood of delay in disposal of cases, in a case where life imprisonment is imposed, cannot be a reason for invocation of power u/s. 389 without referring to the relevant factors and each case has to be examined on its own merits and based on the given parameters.
49. It has further been observed by the Hon'ble Apex Court that the factors like nature of the offence held to have committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed under Section 389, Cr.PC. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr.PC without referring to the relevant factors.
50. Further, it needs to refer herein that recently, the Hon'ble Apex Court in the case of Chhotelal Yadav versus State of Jharkhand &Anr. (Criminal Appealno.4804/2025) has specifically observed that while considering the plea for suspension of sentence of life imprisonment is that the convict should be in a position to point out something very palpable or a very gross error in the judgment of the Trial Court on the basis of which he is able to make good his case that on this ground alone, his appeal deserves to be allowed.
51. Since in the instant case there is grave allegation against the present appellant/applicant that he has committed gang rape with the minor, therefore this Court is of the view that the alleged crime comes under the purview of heinous crime, hence as per the ratio laid down by the Hon'ble Apex Court in the case of Shivani Tyagi v. State of U.P. &Anr.(supra), the prayer for suspension of the present appellant is not fit to be allowed.
52. Herein, it is the specific attributability against the present appellantas would be evident from testimony of the prosecutrix/victim P.W.1 having been corroborated by the prosecutrix victim and witnesses which having been taken note by this Court on earlier occasion also, while rejecting the prayer for suspension of sentence, therefore, is of Page | 16 the view that merely on the ground of custody having been undergoneby the present appellant of about five years against the sentence of life imprisonment cannot be a ground for suspending the sentence leaving aside the attributability found to be substantiated in course of trial.
53. This Court, taking into consideration the nature of crime i.e.gang rape against the minor as per the reference made by the victim and the other witnesses, is of the view that it is not a case where the sentence is to be suspended on the ground that co-accused persons have been granted bail and the applicant is in custody since long.
54. Accordingly, the instant interlocutory application stands dismissed.
55. It is made clear that any observation made hereinabove will not prejudice the case of the parties on merit since the appeal is lying pending for its consideration.
(Sujit Narayan Prasad, J.) (Deepak Roshan, J.) 23rd March, 2026 KNR/-
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