SOSA/1047/2026 of MUKESH S/O SHRI BARDHI LAL Vs STATE OF RAJASTHAN on 18 August 2026

Order

18/08/2026

1. The instant application for suspension of sentence is preferred in pending appeal which was admitted on 09.03.2023 and aggrieved from order of conviction and sentence dated 19.09.2019 in Sessions Case No. 169/2018 passed by learned Special Judge (POCSO Act Cases) No.2, Bundi whereby appellant- Mukesh S/o Shri Bardhi Lal was convicted for offence under Sections 363 and 376D of IPC and appellant-Kailash S/o Shri Ram Prasad was convicted for offence under Sections 363/120B and 376D of IPC and sentenced accordingly.

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2. Learned counsel for the appellants while relying upon grounds of appeal submitted that without observing principle of law learned trial court has arrived at a conclusion of conviction. He further submitted that learned trial court has overlooked material contradictions and discrepancies, which goes to root of the matter. He further submitted that the entire case of prosecution rests on testimony of interested witness and no independent witness was examined to corroborate the story of prosecution.

3. Learned counsel for appellants submits that the appellants have undergone more than 10 years and 9 months against awarded sentence of 20 years, and the appeal of present appellants have not been considered for hearing by this Hon’ble Court. He also submitted that there is one case registered against the petitioners, and the petitioners were acquitted from the said case.

4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant has placed reliance upon judgment in case of Omprakash Sahni Vs. Jai Shankar Chaudhary, Criminal Appeal No. 1331-1332/2023, and submitted that Hon’ble Supreme Court has held that period of custody is not a ground to release appellants accused on bail.

5. First SOS of these appellants were dismissed by this Court on 14-07-2023, wherein we have observed as under: On the basis of Ex.P-1, report filed by PW- 1, FIR was registered, wherein alleged that both appellants forcibly kidnapped victim and took victim to the field thereafter, both of them committed rape with her. As per this report, two girls were with victim at

(3 of 6) [SOSA-1047/2026] the time of kidnapping and one of them was examined as PW3 but other was not examined by prosecution. Victim was firstly examined under Section 164 Cr.P.C. and the statement was exhibited as Ex.P-4 wherein also victim corroborated the version of Ex.P-1. The medical which was conducted by PW-4 (Dr. Chandresh Meena) and PW-9 (Dr. D.D. Meena) were exhibited as Ex.P-5 and deposition indicated that there was no sign of injury to conclude about rape. According to PW-3, she was intimidated by accused but she informed about kidnapping to brother of victim. According to PW-1, there is animosity between appellants and family of victim. During investigation, no site plan from where kidnapping took place was said to prepared by IO. As per Ex.D3 a charge-sheet in FIR No. 135/2016 filed under Sections 143, 323 and 341 IPC against five persons and one of them was father of victim wherein appellant Mukesh was witness. After considering the entirety of matter and particularly discrepancies and material contradictions as pointed out by learned counsel for appellant, I am of considered view that these discrepancies and material contradictions can only be considered on merits. In this case, as per custody certificate, appellants had undergone more than 6 years in custody though victim was minor and appellants were convicted under Section 376D IPC for a period of 20 years. In entirety of facts and circumstances, this is not a fit case wherein appellants can be released on bail.

6. The custody certificate as submitted by learned Public Prosecutor indicate that the appellant accused Mukesh Bairwa has undergone more than 10 years, 9 months and 19 days on 09-08-2026, whereas accused Kailash Bairwa has undergone 10 years, 8 months and 27 days on 12-8-2026. In any case, both the appellants have undergone more than

(4 of 6) [SOSA-1047/2026] 10 years against the maximum awarded sentence of 20 years under Section 376 of IPC.

7. In case of Sonadhar Vs. State of Chhattisgarh, SLP (Criminal) No. 529/2021, (order dated 15-9-2022), Hon’ble Supreme Court has considered non-hearing of appeals and further continued incarceration of appellants and observed that those who have been in custody for more than 10 years or more than 14 years be considered for grant of bail pending appeal, if there is no chance of hearing of the appeal in near future unless there are reasons for denial of bail.

8. Earlier in case of Saudan Singh Vs. State of UP, SLP (Criminal) No. 4633/2021, (order dated 5-10-2021), Hon’ble Supreme Court has made observation regarding grant of bail in the appeal at High Court stage except for certain exceptions.

9. Having considered the fact that present appellants are in custody for last more than 10 years, therefore we are considering the SOS application only on the ground of custody. In case of Omprakash Sahni Vs. Jai Shankar Chaudhary (supra), Hon’ble Supreme Court has considered a situation and observed that considering the prayer for bail involving serious offenses, the court should consider relevant factors.

10. Having considered the entirety of facts and circumstances of the case and also the material as placed on record, we are of the considered view that the appellants have already undergone more than 10 years and the criminal appeal as

(5 of 6) [SOSA-1047/2026] preferred by the appellants has not been considered. Therefore, it is appropriate to allow SOS application of these appellants.

11. At this stage, it is not possible for us to express any opinion on merits of the case, but looking to the facts and circumstances of the case, it is a fit case to enlarge appellants on bail.

12. Therefore, without expressing any opinion on merits, I am of considered view that it is a fit case wherein appellants can be enlarged on bail. The application under Section 430(1) B.N.S.S. is allowed and sentence of appellants accused- Mukesh S/o Shri Bardhi Lal, Kailash S/o Shri Ram Prasad is suspended till disposal of appeal with the condition that they would executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for their appearance in this court on 15.10.2026 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

1. After release of appellants on bail, they will not indulge in any criminal activity and if it is found that they are involved in any criminal activity, the order shall be recalled.

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

3. That if the applicant(s) changes the place of residence, they will give in writing his/her/their

(6 of 6) [SOSA-1047/2026] changed address to the trial Court as well as to the counsel in the High Court.

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

5. In case, the applicants has violated any condition, then the order of SOS shall be recalled and cancelled.

13. Misc. Application stands disposed of.

14. A copy of this order be sent to learned trial court through E- mail. (ASHOK KUMAR JAIN),J 59/CHETNA BEHRANI