Judicature For Rajasthan Bench High Court · 2026

: Mr. Govind Prasad Rawat For Respondent(s) : Mr. Vinay Singh Yadav, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN 06/03/2026 Order

1. Heard learned counsel for the appellant-applicant and learned State counsel on the second suspension of sentence application.

2. The applicant-appellant herein has been convicted for offences punishable under Sections 363, 366 & 344 of IPC and Section 5(l)/6 of POCSO Act vide judgment dated 04.08.2022 passed by the learned Special Judge, POCSO Act, Tonk (Rajasthan) in Sessions Case No.82/2020 and has been sentenced to maximum punishment of twenty years.

3. The first application for suspension of execution of sentence filed by the appellant-applicant was dismissed as withdrawn by this Court vide order dated 10.10.2024 while giving liberty to [2026:RJ-JP:9756] (2 of 5) [SOSA-120/2026] renew the prayer for suspension of sentence if appeal is not heard finally within a period of one year. Now, this second application for suspension of execution of sentence has been filed on behalf of the appellant-applicant.

4. Learned counsel appearing on behalf of the appellant- applicant submits that appellant-applicant has wrongly been convicted by the learned trial Court. Counsel submits that learned trial Court has failed to appreciate the evidence available on record in correct perspective. It is submitted that as per school record of the victim, she was about 15 years old at the time of the alleged incident. Counsel submits that testimony of the victim would reveal that victim left her parental home on her own and went with the appellant-applicant in public conveyance. The record indicates that the victim was aware, while residing with her parents, that the appellant-applicant had rented a room in Bhopal where they stayed for approximately eight months. During this period, she developed physical relations with the appellant- applicant on her own and did not make any complaint to anyone despite opportunity. It is submitted that the age of the victim in her school record is not a reliable piece of evidence as same was entered by stranger and her mother has admitted the fact that she did not fill-up any admission form of the victim. Counsel submits that at any point of time, age was not disclosed by the victim to the appellant-applicant and she always presented herself as major. Counsel contends that medical evidence would show that at the time of alleged incident, victim was fully grown-up girl which is evident from her medical examination report wherein it has been [2026:RJ-JP:9756] (3 of 5) [SOSA-120/2026] mentioned that the general appearance of the victim is well build and her axillary hair are well developed. Counsel submits that at initial stage when victim was recovered, she refused to go with her parents, therefore, she was sent to the child care home/Nari Niketan and this fact has been admitted by the victim herself during her cross-examination. It is contended that appellant- applicant has already suffered incarceration of about six years and four months including remission. Counsel submits that there is no immediate prospect of this appeal being heard and disposed of in near future. Looking to the large pendency of criminal appeals before this Court, appellant will serve the entire sentence till the time appeal will come for hearing. Counsel relies upon judgment passed by the Hon’ble Supreme Court of India in Special Leave to Appeal (Crl.) No.5636/2024 titled as Zameer versus The State of Karnataka wherein after considering the period of incarceration, benefit of suspension of execution of sentence was granted to the accused.

5. Learned State counsel opposes the submissions made by counsel for the appellant-applicant and submits that at the time of alleged incident, victim was below 18 years of age, therefore, her consent, if any, is immaterial. It is submitted that there is allegation against the appellant-applicant of making physical relations with the victim on several occasions against her wish.

6. Upon a consideration of the arguments advanced on behalf of the appellant-applicant as well as learned State Counsel and having regard to the facts and circumstances as available on the record including judgment passed by learned trial Court and [2026:RJ-JP:9756] (4 of 5) [SOSA-120/2026] testimony of victim as well as her mother, so also considering the medical evidence, especially the fact that appellant-applicant has already suffered incarceration of about six years and four months including remission, as also looking to the large pendency of criminal appeals before this Court and there is no immediate prospect of this appeal being heard and disposed of in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the appellant-applicant during pendency of the appeal.

7. Accordingly, this second application for suspension of sentence filed under Section 430 BNSS is allowed and it is ordered that the sentences passed by the learned Special Judge, POCSO Act, Tonk (Rajasthan) vide judgment dated 04.08.2022 in Sessions Case No.82/2020 against the appellant-applicant Mukesh Kumar S/o Shri Mewaram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in the Court on 06.04.2026 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. That he will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, he will give in writing his changed [2026:RJ-JP:9756] (5 of 5) [SOSA-120/2026] address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

8. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial Court. In case the said accused-applicant does not appear before the trial Court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. GAUTAM JAIN /32 (ANIL KUMAR UPMAN),J