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
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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
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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
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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
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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
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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
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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
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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 byPage | 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
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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/-
N.A.F.R.
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