[Cites 16, Cited by 0]
Jharkhand High Court
Amarjeet Singh @ Chhotu vs State Of Jharkhand on 5 February, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 258 of 2020
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1.Amarjeet Singh @ Chhotu
2.Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju
@ Sukhu Paun
... ... Appellants
Versus
State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
Mr. Rohan Mazumdar, Advocate
For the Respondent : Mr. Bhola Nath Ojha, Spl. P.P.
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C.A.V. On 02.02.2026 Pronounced on 05/02/2026
Per Sujit Narayan Prasad, J:
I.A. No. 1294 of 2026
Prayer:
1. The instant interlocutory application has been filed by
the appellant no. 1 namely Amarjeet Singh @ Chhotu under
Section 430(1) of BNSS, 2023 for suspension of sentence
dated 25.01.2020 passed by the learned Additional Sessions
Judge - I, West Singhbum at Chaibasa in connection Special
POCSO Case No. 01 of 2019 arising out of Noamundi P. S.
Case No. 01 of 2019, whereby and whereunder, the
appellants has been sentenced to imprisonment for life which
shall mean imprisonment for the remainder of their natural
life and fine of Rs. 50,000/- for the offence punishable under
Section 376DA of the Indian Penal Code. In default of
payment of fine, the convict will have to further undergo
rigorous imprisonment of one year. In default of payment of
fine, the culprit shall have to undergo an additional RI of one
year. No separate sentence has been awarded to the appellant
u/s 376(2) (n) of the Indian Penal Code. In view of Section 42
of the POCSO Act, no separate sentence was inflicted upon
the appellants u/s 6 of the Protection of Children from Sexual
Offences (POCSO) Act also.
Prosecution Story:
2. The prosecution case lodged on the basis of written
report submitted by the victim/ prosecutrix, before the
Officer-in-Charge of Noamundi P.S., in brief, is that the
prosecutrix is a 15 years old girl and she is resident of
District Singhbhum West at Chaibasa and since last six years
she was residing in the quarter of her maternal grandmother
(Nani) at Tisco Camp the Balijharan.
3. On 19.12.2018, prosecutrix had left the house of her
maternal grandmother (Nani) and came to her house at
Kumhartoli. Thereafter, the maternal grandmother (Nani) of
the prosecutrix came to her house and asked from her about
the reason of leaving her house whereupon it was disclosed
by the prosecutrix that the above named accused persons
had made her naked video and they were committing rape on
her repeatedly by threatening her on the ground of her said
naked video and being harassed by the said acts of the
accused persons, she had come to her house at Kumhartoli.
4. It has been further alleged that the present appellant
Amarjeet Singh @ Chhotu used to sell milk and in course of
her stay in the house of her maternal grandmother (Nani), the
prosecutrix used to go to the house of said accused Chhotu
daily in the morning for bringing milk from there. One day,
when there was no one in his house, the accused Chhotu @
Amarjet Singh called the prosecutrix inside his house for
decanting rice and when the prosecutrix went inside the
house of said accused, he bolted from door the inside and
thereafter, both the Chottu @ Amarjeet and his friend Vikash
@ Raju @ Shuru @Bhakt Bandhu Paun forcibly disrobed her
and committed rape on her and when the prosecutrix started
to cry, the said accused persons pressed her mouth.
5. The accused persons threatened the prosecutrix with
dire consequences in case of disclosing about the incident by
her to her family members. Thereafter when the prosecutrix
went the next day, for bringing milk the accused Chhotu @
Amarjeet Singh showed the naked photo and video recording
of the prosecutrix to her on a mobile and he threatened her
that whenever they shall call, she will have to come there
otherwise they shall post her naked photo and video
recording on face book.
6. On the basis of said threatening and naked photos and
videos the above-named accused persons committed rape on
the prosecutrix repeatedly since the month of April, 2018 to
the month of September, 2018 and they were threatening the
prosecutrix that if she discloses about it to anyone, she will
have to face dire consequences.
7. It has been further alleged that the prosecutrix was too
afraid and hence the matter could not be reported to the
police earlier and on being consoled by her maternal
grandmother (Nani), the prosecutrix came to police station on
04.01.2019 and gave a written application to the Officer-in-
Charge of the Noamundi Police Station.
Submission on behalf of appellant no. 1
8. Learned senior counsel for the appellant no.1, has
submitted that earlier this Court has dismissed one
interlocutory application filed by the present appellant no.1
being I.A. (Cr.) No. 1518 of 2024 vide order dated 13th March,
2024 whereby the prayer for suspension of sentence of the
appellant no.1 has been rejected.
9. Submission has been made that reason for filing the
instant interlocutory application on behalf of the appellant
no.1 is that after the rejection of the earlier interlocutory
application of the appellant no.1, one of the co-convicts
namely Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @
Raju @ Sukhu Paun has been allowed to be released on bail
after suspension of sentence by the Co-ordinate Bench of this
Court vide order dated 08.12.2025 passed in I.A. (Cr.) No.
15933 of 2025 (in Cr. Appeal (DB) No. 258 of 2020).
10. The learned Senior Counsel on the basis of the aforesaid
fact has raised the issue of parity and has submitted that
since the prayer for suspension of sentence of similarly
placed co-convict namely Bhakt Bandhu Paun @ Bhakta
Bandhu Pan Vikash @ Raju @ Sukhu Paun has been allowed,
therefore the prayer for suspension of sentence of appellant
no.1 is fit to be allowed.
11. The learned senior counsel has further submitted that
from perusal of order dated 08.12.2025 passed in I.A. (Cr.)
No. 15933 of 2025 by which co-convict namely Bhakt
Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paun has been ordered to release on bail, it would be
evident that learned co-ordinate Bench has taken into
consideration the medical report as well as absence of the
nude video purportedly of the victim and based upon that
consideration the prayer for suspension of the sentence of the
said co-convict has been allowed, therefore, the prayer for
suspension of the sentence of the appellant no.1 may be
allowed on the basis of the aforesaid finding of the co-
ordinate Bench.
12. It has further been submitted that the appellant no. 1 is
languishing in judicial custody since the month of January,
2019 and based upon the same the prayer has been made for
suspension of sentence in connection with the present case.
Submission of learned Spl.P.P for state
13. The learned Spl. Public Prosecutor appearing for the
respondent-State has vehemently opposed the prayer so
made in the present interlocutory application.
14. It has been submitted that earlier the co-convict namely
Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paunb has filed an Inter-locutory Application being
I.A. No.2073 of 2022 before the co-ordinate Bench of this
Court and the said interlocutory application of the co-convict
had been dismissed vide order dated 6.6.2022 after due
appreciation on merit of the case. But the same co-ordinate
Bench of this Court vide order dated 08.12.2025 passed in
I.A. (Cr.) No. 15933 of 2025 has allowed the prayer of the
suspension of sentence of the said co-convict after taking into
consideration the custody of the said co-convict as well as
merit of the case.
15. The learned Special Public Prosecutor by referring the
aforesaid fact has submitted that order dated 6.6.2022
passed in I.A. No.2073 of 2022 by which prayer for
suspension of sentence of the said co-convict 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 which was allowed vide order 08.12.2025,
therefore the benefit should not be granted to the appellant
no.1.
16. The ground has also been taken that from perusal of
order dated 08.12.2025 passed in I.A. (Cr.) No. 15933 of 2025
by which co-convict namely Bhakt Bandhu Paun @ Bhakta
Bandhu Pan Vikash @ Raju @ Sukhu Paun has been ordered
to release on bail, it would be evident that the earlier order of
rejection of bail of the appellant no.1 has not been placed
before the co-ordinate Bench which is nothing but
suppression of material fact which led the co-ordinate Bench
passing the order allowing the interlocutory application filed
by the co-convict, namely, Babli Singh @ Babla Singh @ Ritlal
Singh Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @
Raju @ Sukhu Paun.
17. Learned Additional Public Prosecutor, based upon the
aforesaid ground, has seriously opposed the prayer so made
in the instant interlocutory application and has submitted
that since earlier the prayer for suspension of sentence of the
appellant no.1 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
18. We have heard the learned counsel for the parties, gone
across the finding recorded by the learned trial court in the
impugned judgment.
19. The ground has been taken on behalf of the appellant
no. 1 regarding parity from the co-convict, namely, Bhakt
Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paun.
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 13th March,
2024 passed in interlocutory application being I.A. (Cr.) No.
1518 of 2024 the same has been rejected on merit.
21. This Court, on perusal of the order dated 13 th March,
2024, passed in I.A. (Cr.) No. 1518 of 2024 has found the
ground taken on behalf of the appellant no. 1 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 paragraphs-05 to 09 of the
aforesaid order, for ready reference the said paragraphs are
being quoted as under:
"5. Heard learned counsel for the parties, gone through
the findings recorded by the learned trial court in the
impugned judgment as also testimony as available in
the record.
6. This Court in order to appreciate the argument
advanced on behalf of the parties has considered the
testimony of P.W. - 4, victim and found therefrom that
she has fully supported the prosecution version and
remained consistent in her cross-examination. It has
been deposed by her that she was subjected to rape by
both the accused persons. The medical report also
corroborates the aforesaid version.
7. The case of the appellant no. 2 namely Bhakt
Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paun has already been dealt with by the Co-
ordinate Bench of this Court and as would appear from
the order dated 06.06.2022 passed in I.A. No. 2073 of
2022, the prayer for suspension of sentence of the
appellant no. 2 has already been rejected.
8. This Court, taking into consideration the testimony of
P.W. - 4, victim, as also considering the fact that the
allegation against the appellant no. 2 whose prayer for
suspension of sentence has already been rejected by
the Co-ordinate Bench of this Court vide order dated
06.06.2022 passed in I.A. No. 2073 of 2022 on the
ground that P.W. - 4 has deposed about the commission
of offence by taking the name of the appellant no. 1
also along with the appellant no. 2, is of the view that
there is no reason to take different view so far as the
appellant no. 1 is concerned.
9. Accordingly, Interlocutory Application being, I.A. (Cr.)
No. 1518 of 2024 stands dismissed."
22. It is evident from the aforesaid order that this Court
while considering the issue of suspension of sentence of the
present appellant (appellant no.1) has taken into
consideration the testimony of the victim girl P.W. - 4, and
found therefrom that she has fully supported the prosecution
version and remained consistent in her cross-examination. It
has been deposed by her that she was subjected to rape by
both the accused persons.
23. It is further evident from paragraph -7 of the aforesaid
order that while rejecting the prayer for suspension of
sentence of the appellant no.1, the Co-ordinate Bench had
taken note of the order dated 06.06.2022 passed in I.A. No.
2073 of 2022 by which prayer for suspension of sentenced of
the co-convict namely Bhakt Bandhu Paun @ Bhakta
Bandhu Pan Vikash @ Raju @ Sukhu Paun has been
rejected.
24. For ready reference the relevant paragraph of the order
dated 06.06.2022 passed in I.A. No. 2073 of 2022 by which
prayer for suspension of sentenced of the co-convict namely
Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paun has been rejected is being referred herein which
reads as under:
It appears from the evidence of P.W-4 who is the
victim that she is consistent with respect to the
commission of rape upon her repeatedly by both the
accused persons including the appellant no. 2. The
medical report also indicates that sexual intercourse
had taken place.
In view of the aforesaid facts, we are not inclined to
admit the appellant no. 2 on bail. His prayer for bail is,
accordingly, rejected.
25. From the perusal of the aforesaid order it is evident that
the co-ordinate Bench of this Court while rejecting the prayer
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for suspension of sentence of said the co-convict namely
Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @ Raju @
Sukhu Paun on merit, has taken into consideration the fact
that P.W-4 who is the victim is consistent with respect to the
commission of rape upon her repeatedly by both the accused
persons including the co-convict and the medical report also
indicates that sexual intercourse had taken place.
26. It is pertinent to mention herein that the said co-convict
namely Bhakt Bandhu Paun @ Bhakta Bandhu Pan Vikash @
Raju @ Sukhu Paun has again moved an application being
I.A. (Cr.) No. 15933 of 2025 for suspension of sentence and
vide order dated 08.1.2025, the said application was allowed
by the same Co-ordinate Bench after again going into merit of
the case, for ready reference the relevant paragraph of the
said order is being quoted as under:
"Submission has been advanced by the learned senior
counsel for the appellant no.2 that the basis for
committing rape upon the victim appears to be a nude
video but the said video has not been produced by the
prosecution. It has been submitted that the appellant
no.2 is in custody since 05.01.2019 and the evidence of
the Doctor, who has been examined as PW-1, does not
suggest that the victim was subjected to rape.
The learned Spl.P.P. has opposed the prayer for bail
of the appellant no.2.
Regard being had to the period of custody undergone
by the appellant no. 2, the medical report as well as
absence of the nude video purportedly of the victim, we
are inclined to admit the appellant no.2 on bail.
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Accordingly, during the pendency of this appeal, the
appellant no.2 is directed to be released on bail on
furnishing bail bond of Rs. 10,000/- (Rs. Ten Thousand)
with two sureties of the like amount each to the
satisfaction of learned Additional Sessions Judge-I,
West Singhbhum at Chaibasa in Spl. (POCSO) Case No.
01 of 2019.
27. 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 has taken into consideration the
different factual aspect of the case and has observed that in
absence of the nude video purportedly of the victim, we are
inclined to admit the appellant no.2 on bail.
28. 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 06.06.2022 passed in
I.A. No. 2073 of 2022 by which prayer for suspension of
sentenced of the co-convict appellant no,.2 has been rejected.
29. Thus, from the aforesaid it is evident that the same co-
ordinate 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 appellant no.1.
30. 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
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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."
31. 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
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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.
32. 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
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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 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
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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."
33. 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 being
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weighed, 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 the sheer size of the gathering, with
another who attempted to hack away at the opposer‟s
limbs with a weapon."
34. Thus, from the aforesaid it is evident that while
appreciating issue of parity, the Court should emphasize on
the role played by the accused and not the thread of the same
offence being the only common factor between the accused
persons.
35. In the backdrop of the aforesaid settled position of law,
we proceed to delve further.
36. Admittedly, from perusal of the order dated 08.12.2025
passed by the Co-ordinate Bench, it is evident that the order
dated 13.03.2024 by which the prayer of suspension of the
sentence of the present appellant (appellant no.1) has been
declined, has not been referred in the order passed by the co-
ordinate Bench, meaning thereby, it is apparent that the
order dated 13.03.2024 by which prayer for suspension of
sentence of the appellant no.1 was rejected, has not been
taken note by the co-ordinate Bench at the time of
consideration of prayer for suspension sentence of the co-
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convict namely Bhakt Bandhu Paun @ Bhakta Bandhu Pan
Vikash @ Raju @ Sukhu Paun and has gone into merit of the
case and allowed the prayer of co-convict against whom
parity is now claimed.
37. Further it is admitted fact that earlier vide order dated
06.06.2022 by which the prayer for suspension of sentence of
the said co-convict has been rejected by the same co-ordinate
Bench by taking note of the consistent statement/deposition
of the prosecutrix/victim (P.W.4), but on 08.12.2025 the
same co-ordinate Bench after taking into consideration the
different aspect/fact, has allowed the prayer for suspension
of said co-convict.
38. 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 the applicant.
39. From perusal of impugned order it is evident that there
is allegation against the present appellant (appellant no.1)
that he had committed gang rape on the prosecutrix/ victim,
a minor girl under the age of 16 years, by constituting a
group and acting in furtherance of a common intention, when
she (prosecutrix) had gone to bring milk from the house of
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the present appellant (appellant no.1) and thereafter the
present appellant and co-convict continued to ravish the
prosecutrix repeatedly by calling her at different places by
blackmailing her on the ground of making her nude pictures
and videos viral on social media like facebook and whatsapp
etc.
40. P.W.4 the Victim has deposed in her testimony that she
used to go to the house of the accused Chhotu @ Amarjeet
(appellant no.1) for bringing milk from there and one day
when she had gone to bring milk from his house, the
Amarjeet told her to decant food in his house and when she
went inside his house, he bolted the doors from inside.
Thereafter, when she tried to cry, the accused persons
Chhotu @ Amarjeet Singh (appellant no.1) and the Vikash
Munda (co-convict) shut her mouth and they disrobed her
and thereafter they committed rape on her.
41. Thus, it is evident from impugned order 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.
42. On the basis of discussion made hereinabove this Court,
therefore, is of the view that since we are dealing with the
heinous offence like rape against the minor, therefore, the
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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.
43. 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 and
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circumstances 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."
44. Thus, it is evident from the aforesaid judgment that
during consideration of suspension of sentence which is the
post-conviction 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.
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45. 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.
46. 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.
47. So far as 7 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 sentence can be a ground coupled
with the attributability as has been found and substantiated
in course of trial.
48. 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 for
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suspension of sentence if the nature of offence having been
proved in course of trial is serious.
49. 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 without referring to
the relevant factors and each case has to be examined on its
own merits and based on the given parameters.
50. 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.
51. 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 Appeal
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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.
52. Since in the instant case there is grave allegation
against the present appellant that he has committed gang
rape with the minor under the age of 16 years, when she
(prosecutrix) had gone to bring milk from the house of the
present appellant (appellant no.1), 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 (appellant no.1) is not fit to be allowed.
53. Herein, it is the specific attributability against the
present appellant(appellant no.1) as would be evident from
testimony of the prosecutrix/victim P.W.4 having been
corroborated by the witnesses which having been taken note
by this Court on earlier occasion also, while rejecting the
prayer for suspension of sentence, therefore, is of the view
that merely on the ground of custody having been undergone
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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.
54. 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.
55. Accordingly, I.A. No. 1294 of 2026 stands dismissed.
56. 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.
I Agree (Sujit Narayan Prasad, J.)
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
05/02/2026
N.A.F.R.
Alankar/-
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