Jharkhand High Court
Suken Singh Sardar @ Sukhen Singh Sardar vs The State Of Jharkhand on 14 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.1827 of 2023
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Suken Singh Sardar @ Sukhen Singh Sardar, Aged about 26 years,
Son of Jogeshwar Singh Sardar, Resident of Pure Silli, P.O. & P.S.
Chandil (Kapali), District-Seraikella-Kharsawan
…. …. Appellant
Versus
The State of Jharkhand …. …. Respondent
CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE SANJAY PRASAD
——
For the Appellant : Mrs. Rashmi Kumar, Advocate
For the State : Mr. Vishwanath Roy, Spl. P.P.
——
th
Order No.09/ Dated: 14 July, 2026
Oral Order
I.A. No.6546 of 2026
Prayer
1. The instant interlocutory application has been filed under
Section 430(1) of the B.N.S.S., 2023 for suspension of
sentence dated 10.06.2022 passed by the learned Special
Judge, POCSO Act, Seraikella-Kharsawan, in connection with
POCSO Case No.52 of 2019, arising out of Chandil P.S. Case
No.106 of 2019, whereby and whereunder, the appellant has
been convicted for the offence under Sections 323, 341, 342,
354, 354A, 354B read with Section 34 of the IPC, Sections
376-D, 395, 504/34 & 506/34 of the IPC and Section 6 and 10
of the POCSO Act and sentenced to undergo R.I. for life along
with fine of Rs.20,000/- for the offence under Section 6 of the
POCSO Act, and in default of payment of fine, he has further
been directed to undergo S.I. for two years, R.I. for six years
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along with fine of Rs.8,000/- for the offence under Section 10
of the POCSO Act and in default of payment of fine, he has
further been sentenced to undergo S.I. for one year, R.I. for
one year along with fine of Rs.800/- for the offence U/S 323/34
IPC and in default of payment of fine, he has been directed to
undergo S.I. for ten days. He has further been sentenced to
undergo S.I. for one month along with fine of Rs.300/-/- for the
offence U/S 341/34 IPC and in default of payment of fine, he
has to undergo S.I. for three days.
2. He has further been sentenced to undergo R.I. for one year
along with fine of Rs.800/- for the offence under Section 342/34
IPC and in default of payment of fine, he has to undergo S.I. for
ten days. He has further been sentenced to undergo R.I. for
four years along with fine of Rs.5000/- for the offence U/S
354/34 IPC and in default of payment of fine, he has to
undergo S.I. for six months and he has further been sentenced
to undergo R.I. for ten years along with fine of Rs.10,000/- for
the offence under Section 395 IPC and in default, he has to
undergo S.I. for one year and all the sentences have been
directed to run concurrently.
Submission of the learned counsel for the appellant
3. Learned counsel for the appellant has submitted that the
prayer for suspension of sentence of the present appellant has
already been dealt with by this Court while passing the order
dated 19.02.2025 in I.A. No.9748 of 2023 on merit but the
prayer for suspension of sentence is being renewed on the
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ground of parity as also on the ground that the appellant has
remained in custody for almost seven years.
4. It has further been contended by the learned counsel for the
appellant that the other co-accused persons, namely Ramesh
Kumar Singh @ Pintu, and Maheshwar Singh Sardar have
already been granted bail by the Coordinate Bench of this
Court vide orders dated 02.02.2026 and 17.04.2026 passed in
Cr. Appeal (DB) Nos. 722 of 2022 and 814 of 2022
respectively.
5. It has also been submitted that the case of the present
appellant is identical to that of aforesaid accused persons, who
have been directed to be released on bail by the Coordinate
Bench of this Court.
6. It has further been submitted that the appellant is languishing
in judicial custody since 02.09.2019.
7. Learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that it is a fit case where the prayer for
suspension of sentence may be allowed.
Submission of the learned Spl. P.P. for the Respondent-State
8. Mr. Vishwanath Roy, learned Spl. P.P. appearing for the
respondent-State has vehemently opposed the prayer for
suspension of sentence.
9. It has been submitted that the victim herself has identified the
accused in course of TIP and have clearly disclosed the act of
the present appellant during the commission of the offence.
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10. It has been contended by him that the prayer for suspension of
sentence has already been dealt with by this Court on merit
and on consideration of testimony of witness, the said prayer
has been rejected, vide order dated 19.02.2025 passed in I.A.
No.9748 of 2023.
11. It has been contended that so far as the prayer for suspension
of sentence on the ground of parity is also not applicable if the
order passed by the Coordinate Bench of this Court will be
taken into consideration.
12. From perusal of orders dated 02.02.2026 and 17.04.2026
passed in Cr. Appeal (DB) Nos. 722 of 2022 and 814 of 2022,
by which, the said co-accused have been granted bail by
allowing the prayer for suspension of sentence, wherefrom, it
would be evident that the learned co-ordinate Bench has taken
into consideration the individual culpability of the said co-
accused persons.
13. It is evident from record that the instant case pertains to gang
rape, wherein the appellant along with other co-accused
persons has been convicted for the offence under Section 376
D IPC. In such circumstances, the culpability of the accused
persons cannot be assessed in isolation or on an individual
basis.
14. The settled position of law is that in cases of gang rape, the
liability of all accused must be viewed in its entirety and
collectively, having regard to the doctrine of common intention.
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15. It is further apparent that this settled principle was not taken into
consideration by the Co-ordinate Bench while allowing
suspension of sentence in favour of certain co-accused, against
whom, parity has now been claimed. Therefore, the ground of
parity is not applicable in the present case, as the conviction
under Section 376D IPC necessarily entails joint liability of all
accused persons.
16. Further, it has been contended that prayer for suspension of
sentence of the other two co-accused persons, namely,
Gunadhar Mahali and Ramesh Kumar have already been
rejected by the same co-ordinate Bench, vide orders dated
16.03.2026 and 29.01.2026 passed in Cr. Appeal (DB) Nos.
806 of 2022 (I.A.No.419 of 2026) and 687 of 2022 (I.A. No.
897 of 2026) respectively. The prayer for suspension of
sentence of the aforesaid co-accused persons has been
rejected by taking into consideration the fact that victim has
identified them as the persons who committed rape upon her.
17. It has been contended that further, it is settled connotation of
law that Court cannot exercise its power in a capricious
manner and has to consider the totality of circumstances
before allowing the prayer for suspension of sentence and by
only simply saying that another accused has been granted bail
by suspending the sentence is not sufficient to determine
whether a case of prayer for suspension of sentence on the
basis of parity has been established.
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18. It has also been contended that merely on the ground of period
of custody of seven years, the sentence is not fit to be
suspended.
19. Learned State Counsel, based upon the aforesaid grounds,
has seriously opposed the prayer so made in the instant
interlocutory application and has submitted that earlier the
prayer for suspension of sentence of the appellant 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 is fit to be dismissed.
Analysis
20. We have heard the learned counsel for the parties and gone
through the findings recorded by the learned trial court in the
impugned judgment, as also, the order passed by the
Coordinate Bench of this Court, vide orders dated 02.02.2026
and 17.04.2026 passed in Cr. Appeal (DB) Nos. 722 of 2022
and 814 of 2022 respectively and this Court has also gone
through the order dated 19.02.2025 passed in I.A. No.9748 of
2023.
21. It is pertinent to mention herein that the prayer for suspension
of sentence of the present appellant has already been
considered by this Court on merit and vide order dated
19.02.2025 passed in interlocutory application being I.A.
No.9748 of 2023, the prayer for suspension of sentence of the
present appellant/applicant has been rejected.
22. This Court, on perusal of the order dated 19.02.2025 passed in
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I.A. No.9748 of 2023 has found that the ground taken on behalf
of the appellant as also the objection raised on behalf of the
learned State counsel has taken into consideration and
thereafter, the Court has considered the prayer for suspension
of sentence of the present appellant on merit, as would be
evident from relevant paragraphs, i.e., para 24 onwards of the
aforesaid order. For ready reference the relevant paragraphs of
the order dated 19.02.2025 are being quoted as under:
“06/ Dated: 19.02.2025
I.A. No. 9748 of 2023“….. ….. ….. ….. ……
24. Now, adverting to the facts of the instant case,
wherein, the appellant has also been convicted for the
offences under the POCSO Act, therefore, it is utmost duty
of this Court to go through the finding of the learned trial
court in order to find out that what type of the reliable
evidences have been considered by the trial court on the
point of implication of POCSO Act against the
petitioner/appellant.
25. The learned trial court has taken into consideration the
content of FIR, wherein, the victim girl who is informant of
the case has disclosed her age as 17 years and 10
months. Further, in her statement under Section 164
Cr.P.C. dated 31.08.2019, she has disclosed her age as
17 years. The prosecution has produced the certificate of
Central Board of Secondary Education, 2018 (Ext.-6) of
the victim girl wherein, her date of birth has been
mentioned as 07.10.2001 and based upon that, learned
trial court had determined the age of the victim below 18
years on the date of alleged occurrence.
26. The learned trial court has come to conclusive finding
that on the date of occurrence, victim was not a major,
rather, a minor/child in terms of Section 2(d) of the
POCSO Act. Further, it is evident from record that the
defence on the other hand has not been able to bring on
record any material to disprove or contradict the aforesaid
fact.
27. Now, in the back drop of the aforesaid facts, it would
be pertinent to discuss the evidence adduced by the
prosecution. From perusal of the impugned order, it is
apparent that the prosecutrix (P.W. 5) has given a
thorough account of the occurrence in her evidence. From
the testimony of the victim, it is evident that She has
categorically stated that there were altogether 12 accused
and three of them committed rape upon her and rest of
them assaulted, molested and outraged her modesty. Her
further statement is that at the time of rape some of the
miscreants had switched on the torch of their mobile
phones and she could able to see their faces.
28. It has come on record that shortly after the alleged
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occurrence statement of the victim has been recorded
under Section 164 Cr.P.C., wherein, she has narrated the
entire occurrence and by this statement also, the case of
prosecution has fully been corroborated.
29. Further, the P.W. 3 who is the friend of the victim, has
clearly supported the fact that miscreants arrived,
assaulted him and took out Rs. 2,000/- from his
possession as well as one I-phone and some of them
dragged the victim out from the vehicle and took her in the
dark.
30. Further, the doctor (P.W.7) who has examined the
victim after the occurrence has opined that bruise is
present below the vaginal orifice and Tenderness is
present in perennial region and vagina however, she has
opined that no definite opinion about rape can be given
and said that bruise is present below vaginal orifice at the
time of examination may be due to admitted rape and
further stated that all other injuries described above are of
within 24 hours.
31. Further, from paragraph-76 of the impugned order, it is
evident that victim has identified the present
applicant/appellant in the Test Identification Parade (TIP)
as the person who had molested and assaulted her.
32. Thus, on the basis of discussion made
hereinabove, this Court, is of the considered view that it is
not a fit case for suspension of sentence.
33. Accordingly, the interlocutory application being I.A.
No.9748 of 2023, is hereby, rejected.”
23. It is evident that this Court while rejecting the prayer for
suspension of sentence has taken into consideration, the
testimony of the prosecutrix (P.W.5) wherein she had
categorically stated that twelve accused persons were
involved, three of whom committed rape while others assaulted
and molested her. She further deposed that during the act,
some miscreants used mobile torches, enabling her to identify
their faces. It has further been observed that the prosecutrix
statement under Section 164 Cr.P.C. corroborates the
prosecution case in material particulars.
24. This Court has further taken note of the testimony of P.W.3, i.e.,
friend of the prosecutrix, wherein, he has supported the
prosecution version by testifying that the miscreants assaulted
him, robbed him of Rs. 2,000/- and an i-Phone and dragged the
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victim away.
25. Further, this Court has also taken note of the fact that from
paragraph-76 of the impugned order, it is evident that the victim
identified the present appellant in the Test Identification Parade
as one of the persons who molested and assaulted her.
26. This Court taking aforesaid cumulative evidence, has found no
ground to suspend the sentence. Accordingly, the interlocutory
application, I.A. No. 9748 of 2023, was rejected.
27. Since, this Court has already taken view on the issue of
suspension of sentence on merit by taking into consideration
the testimony of witnesses and as such, it will not be just and
proper to again consider the issue on merit as there is no
change in the facts and circumstances of the case.
28. However, this time prayer for suspension of sentence has
been renewed on the additional grounds i.e., the parity and the
period of custody.
Issue of parity
29. So far as the issue of parity is concerned, the ground has been
made out for the purpose of taking aid of release of the co-
convicts, whose sentence have been suspended by the order
passed by the Coordinate Bench of this Court, vide orders
02.02.2026 and 17.04.2026 passed in Cr. Appeal (DB) Nos.
722 of 2022 (In I.A. No.28 of 2026) and 814 of 2022 (In I.A.
No.5229 of 2026) respectively, therefore, we thought it proper
to go through the aforesaid orders passed by the Coordinate
Bench of this Court, which are being quoted as under:-
“08/02.02.2026
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I.A. No.28 of 2026
Heard Mr. J.N. Upadhyay, learned counsel for the
appellant no.3 and learned A.P.P.
This application has been preferred for grant of bail to the
appellant no.3.
The prayer for bail of the appellant no.3 was earlier
rejected twice in I.A. No.289 of 2023 and I.A. No.6813 of
2025.
It has been submitted by learned counsel for the appellant
no.3 that he is in custody since 02.09.2019. While
referring to the TI chart, learned counsel submits that the
appellant no.3 was identified by P.W.3 to be one of the
persons who had only misbehaved.
Learned A.P.P. has opposed the prayer for bail of the
appellant no.3.
Regard being had to the period of custody undergone by
the appellant no.3, we are inclined to admit him on bail.
Accordingly, the appellant no.3 above named is directed to
be released on bail during pendency of the appeal on
furnishing bail bond of Rs.10,000/- (Ten thousand) with
two sureties of the like amount each, to the satisfaction of
learned Special Judge, POCSO Act, Seraikella Kharsawan
in connection with POCSO Case No.52 of 2019. I.A. No.
28 of 2026 stands allowed and disposed of.”
xxxxxxxxxxxx
Order No.06/ Dated 17th April, 2026
I.A. No.5229 of 2026
1. Heard Mr. Arvind Kumar Choudhary, learned counsel for
the appellant No.1 and learned Spl.P.P.
2. This application has been preferred for grant of bail to
the appellant No.1
3. The appellant No.1 has been convicted for the offences
under Sections 323/34, 341/34, 342/34, 354/34, 354A/34,
354B/34, 376D, 395, 504/34 & 506/34 of the I.P.C. and
Section 6 of the POCSO Act and the maximum sentence
which has been imposed upon him is to undergo rigorous
imprisonment for life along with fine of Rs. 20,000/-.
4. It has been submitted by learned counsel for the
appellant No.1 that one of the co-convict Ramesh Kumar
Singh has been granted bail by this Court in Cr. A.(DB)
No. 722 of 2022. Learned counsel while referring to
paragraph No. 76 of the impugned judgment submits that
the role played by the co-convict Ramesh Kumar Singh @
Pintu and the present appellant are same and similar. It
has also been submitted that the appellant No.1 is in
custody since 02.09.2019.
5. Learned Spl.P.P. though has opposed the prayer for bail
of the appellant No.1 but does not dispute the fact that the
case of appellant No.1 is similar to that of Ramesh Kumar
Singh @ Pintu.
6. Regard being had to the above, we are inclined to admit
the appellant No.1 on bail. Accordingly, during the
pendency of this appeal, appellant No.1 above named, is
directed to be released on bail on furnishing bail bonds of
Rs. 10,000/- (Rupees Ten Thousand) with two sureties of
the like amount each, to the satisfaction of learned Special
Judge, POCSO Act, Seraikella-Kharsawan in POCSO
Case No. 52 of 2019.
7. The aforesaid I.A. stands allowed and disposed of.”
30. It is manifest from the aforesaid orders of the learned
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Co-ordinate Bench that while considering the prayer for
suspension of sentence, the Court took note of the individual
culpability of the co-accused. The Bench categorically
recorded that those co-accused were not the persons who had
committed rape upon the prosecutrix and the prosecutrix had
identified the said co-accused only as person who misbehaved
with her. Thus, the suspension of sentence was granted to the
said co-accused on the limited ground of their lesser role,
being confined to misbehave, and not participation in the
actual act of rape.
31. At this stage, learned counsel for the State has advanced the
submission that the accused persons, including the present
appellant, stand convicted by the learned Trial Court under
Section 376D IPC and P.W.5, prosecutrix has identified the
said co-accused including the present appellant in test
identification parade as Molester, and assaulter, which would
be evident from the paragraph-76 of the impugned order.
32. It has further been urged that in view of the conviction under
Section 376D IPC, the principle of common intention squarely
applies, thereby fastening joint liability upon all accused
persons for the acts committed in furtherance of their common
design. Consequently, the individual culpability of the
co-accused cannot be segregated or treated differently for the
purpose of suspension of sentence, therefore, the plea of
parity as taken by the learned counsel for the appellant, is not
acceptable in the present case.
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33. It needs to refer herein that the law is well settled so far as the
issue to be considered for the purpose of applying the principle
of parity that while applying the principle of parity, all
surrounding facts are to be taken into consideration, 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 wherein, it has held as under:
“18. The submission of learned Counsel Mr. Luthra to
grant bail to the appellant on the ground that the other co
accused who were similarly situated as the appellant,
have been granted bail, also cannot be accepted. It may
be noted that parity is not the law. While applying the
principle of parity, the Court is required to focus upon the
role attached to the accused whose application is under
consideration.”
34. The Hon’ble Apex Court has further observed in the aforesaid
judgment, i.e., Tarun Kumar vs. Assistant Director
Directorate of Enforcement (supra) 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
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the basis of such wrong decision.
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 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. This Court observed : (SCC p. 515,
para 17)
“17. Coming to the case at hand, it is found that when a
stand was taken that the second respondent was a history
sheeter, it was imperative on the part of the High Court to
scrutinise every aspect and not capriciously record that
the second respondent is entitled to be admitted to bail on
the ground of parity. It can be stated with absolute
certitude that it was not a case of parity and, therefore, the
impugned order [Mitthan Yadav v. State of U.P., 2014
SCC OnLine All 16031] clearly exposes the non-
application of mind. That apart, as a matter of fact it has
been brought on record that the second respondent has
been charge-sheeted in respect of number of other
heinous offences. The High Court has failed to take note
of the same. Therefore, the order has to pave the path of
extinction, for its approval by this Court would tantamount
to travesty of justice, and accordingly we set it aside.”
26. Another aspect of the case which needs emphasis is
the manner in which the High Court has applied the
principle of parity. By its two orders both dated 21-12-2020
[Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC
OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v.
State of Gujarat, 2020 SCC OnLine Guj 2988] , the High
Court granted bail to Pravin Koli (A-10) and Kheta Parbat
Koli (A-15). Parity was sought with Sidhdhrajsinh
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Bhagubha Vaghela (A-13) to whom bail was granted on
22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of
Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as
the High Court recorded) that he was “assigned similar
role of armed with stick (sic)”. Again, bail was granted to
Vanraj Koli (A16) on the ground that he was armed with a
wooden stick and on the ground that Pravin (A10), Kheta
(A-15) and Sidhdhrajsinh (A-13) who were armed with
sticks had been granted bail. The High Court has evidently
misunderstood the central aspect of what is meant by
parity. Parity while granting bail must focus upon the role
of the accused. Merely observing that another accused
who was granted bail was armed with a similar weapon is
not sufficient to determine whether a case for the grant of
bail on the basis of parity has been established. In
deciding the aspect of parity, the role attached to the
accused, their position in relation to the incident and to the
victims is of utmost importance. The High Court has
proceeded on the basis of parity on a simplistic
assessment as noted above, which again cannot pass
muster under the law.”
36. Further, 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 being weighed, his position in crime, i.e., his role etc.
There can be different roles played – someone part of a14
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 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, this
Court proceed to delve further.
38. Admittedly, from perusal of the orders dated 02.02.2026 and
17.04.2026 passed in Cr. Appeal (DB) Nos. 722 of 2022 and
814 of 2022 respectively by the Co-ordinate Bench, it is
evident that the learned Co-ordinate Bench while considering
the prayer for suspension of sentence, took note of the
individual culpability of the co-accused. The co-ordinate Bench
recorded that those co-accused were not the persons who had
committed rape upon the prosecutrix and the prosecutrix had
identified the said co-accused only as person who misbehaved
with her. Thus, the suspension of sentence was granted to the
said co-accused on the limited ground of their lesser role,
being confined to misbehave, and not participation in the
actual act of rape.
39. But, from 76 of the impugned judgment, it is evident that the
victim/prosecutrix has identified those co-accused as molester
and assaulter.
40. Further, it needs to refer herein that the present appellant
including the co-accused persons against whom parity is
claimed, stand convicted by the learned Trial Court under
Section 376D IPC. Further, P.W.5, prosecutrix has identified
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the said co-accused persons including the present appellant in
test identification parade as Molester and assaulter, which
would be evident from the paragraph 76 of the impugned
order. But, the learned co-ordinate while allowing the prayer for
suspension of the sentence of co-accused has observed that
prosecutrix had identified the said co-accused only as persons
who misbehaved with her.
41. It needs to refer herein that the Section 376D of the Indian
Penal Code and Section 70 of Bhartiya Nayay Sanhita (BNS)
embodies the legislative intent to combat the abhorrent crime
of gang rape and deliver justice to survivors. Section 376D of
the Indian Penal Code, stemming from the pre-2013 amended
section 376(2)(g) along with explanation 1, serves as a robust
legal framework for addressing the abhorrent crime of gang
rape. Section 376D of the amended IPC defines the crime of
Gang Rape, for ready reference Section 376D is being quoted
as under:
“where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with
rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to life”.
42. This implies rape of a woman by more than one person
forming a group of people acting in furtherance of their
common intention to commit rape on such woman. In cases of
gang rape, every person forming a part of the group having
common intention to commit rape would be held guilty
irrespective of whether he commits the sexual act individually
16
or not. In cases of gang rape the proof of completed act of
rape by each accused on the victim is not required.
43. The statutory intention in introducing Explanation (1) in relation
to Section 376(2)(g) appears to have been done with a view to
effectively deal with the growing menace of gang rape. In such
circumstances, it is not necessary that the prosecution should
adduce clinching proof of a completed act of rape by each one
of the accused on the victim or on each one of the victims
where there is more than one in order to find the accused
guilty of gang rape and convict them under Section 376 IPC.
44. It was held by the Supreme Court in Ashok Kumar v. State of
Haryana (AIR 2003 SC 777) that in order to establish an
offence under S.376(2)(g), IPC, read with Explanation I
thereto, the prosecution must adduce evidence to indicate that
more than one accused had acted in concert and in such an
event, if rape had been committed by even one, all the
accused will be guilty irrespective of the fact that she had been
raped by one or more of them and it is not necessary for the
prosecution to adduce evidence of a completed act of rape by
each one of the accused.
45. Thus, the essence of Section 376D and Section 70 of Bhartiya
Nayay Sanhita (BNS) lies in its clear articulation of the offense
of gang rape, ensuring that no ambiguity exists regarding the
scope and application of the law. By stipulating that when a
woman is raped by one or more individuals within a group,
each perpetrator must be deemed to have committed gang
17
rape, the provision leaves no room for legal loopholes or
escape routes for the perpetrators.
46. Thus, it is settled connotation of law that if more than one
accused had acted in concert and in such an event, if rape had
been committed by even one, all the accused will be guilty
irrespective of the fact that she had been raped by one or
more of them and it is not necessary for the prosecution to
adduce evidence of a completed act of rape by each one of
the accused.
47. Thus, in the instant case, since the accused persons including
the appellant have been convicted by the learned trial court
under Section 376D IPC, as such, the principle of common
intention squarely applies, thereby fastening joint liability upon
all accused persons for the acts committed in furtherance of
their common design.
48. It is pertinent to record that the present appellant, together with
the co-accused in whose favour parity has been claimed,
stands convicted under Section 6 and Section 10 of the
Protection of Children from Sexual Offences Act, 2012.
49. It is pertinent to note that Section 6 and Section 10 of the
Protection of Children from Sexual Offences Act, 2012, stipulate
the punishment for the aggravated offences defined
respectively under Section 5 and Section 9 of the said Act.
Further reference must be made to the Explanation appended
to clause (g) of Section 5 and clause (g) of Section 9, wherein, it
is categorically provided that when a child is subjected to
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penetrative sexual assault or sexual assault by one or more
persons acting as a group in furtherance of their common
intention, each such person shall be deemed, by operation of
law, to have committed gang penetrative sexual assault or gang
sexual assault within the meaning of the clause. The statutory
fiction thereby created mandates that every participant in such
group assault shall be individually liable for the act in the same
manner and to the same extent as if the offence had been
perpetrated by him alone.
50. Consequently, the individual culpability of the co-accused
cannot be segregated or treated differently for the purpose of
suspension of sentence, therefore, even then the co-ordinate
Bench has allowed the prayer for suspension of sentence of the
said co-accused against whom parity is claimed, the benefit of
parity cannot be extended to the present appellant.
51. This Court is 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 the appellant/applicant.
52. From perusal of impugned order, it is evident that there is
allegation against the present appellant that being a member of
a group of persons, he had molested and assaulted the
prosecutrix/victim, a minor girl in furtherance of common
intention and thereafter three members of the said group has
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committed rape upon the victim girl.
53. P.W.5, the Victim has identified this appellant as assaulter and
molester, which would be evident from paragraph 76 of the
impugned judgment of conviction. Further, it is evident from
impugned judgment that all the prosecution witnesses have
fully supported the prosecution story and the victim has
remained quite consistent on the date, time and place of
occurrence as well as the occurrence also.
54. On the basis of discussion made hereinabove this Court,
therefore, is of the view that since we are dealing with the
heinous offence like gang rape against the minor, therefore, the
principle of parity and the principle of judicial discipline on the
strength of order passed by the co-ordinate Bench claiming
parity of bail being granted to the co-convict, cannot be made
applicable herein.
Issue of custody
55. Insofar as the plea of prolonged custody, stated to be of about
seven years, is concerned, this Court is of the view that such
circumstance, standing alone, cannot furnish a valid ground for
suspension of sentence. The jurisprudence is clear that mere
duration of incarceration does not entitle an accused to
suspension of sentence. The consideration of custody must
necessarily be coupled with the element of attributability, as
established and substantiated during the course of trial.
56. It is the settled position of law that the period of custody cannot
be the sole ground for suspension of sentence, rather, the
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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 for suspension of sentence if the
nature of offence having been proved in course of trial is
serious.
57. 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 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 Cr.P.C./430 BNSS without
referring to the relevant factors and each case has to be
examined on its own merits and based on the given
parameters.
58. 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/430
BNSS. 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/430 BNSS
without referring to the relevant factors.
59. Further, it needs to refer herein that recently, the Hon’ble Apex
21
Court in the case of Chhotelal Yadav versus State of
Jharkhand & Anr. (Criminal Appeal no.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.
60. Thus, it is settled connotation of law that even if the convict has
completed substantive sentence, that cannot be a sole ground
for suspension of sentence if the nature of offence having
been proved in course of trial is serious.
61. Since, in the instant case there is grave allegation against the
present appellant that he, being member of group having the
common intention has facilitated the 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 on the ground of
custody of seven years against the sentence of life
imprisonment.
62. Herein, it is the specific attributability against the present
appellant, as would be evident from testimony of the
prosecutrix/victim, P.W.5 having been corroborated by the
witnesses, which having been taken note by this Court on
earlier occasion also, while rejecting the prayer for suspension
22
of sentence, therefore, is of the view that merely on the ground
of custody having been undergone by the present appellant of
about seven 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.
63. Therefore, on the basis of discussion made hereinabove, this
Court is of the view that it is not a fit case for suspension of
sentence of the present appellant.
64. Accordingly, I.A. No.6546 of 2026 stands dismissed.
65. It is made clear that any observation made herein will not
prejudice the issue on merit as the appeal is lying pending for
its consideration.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad J.)
14.07.2026
Rohit/-N.A.F.R.
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