1. Conviction for kidnapping, abduction, wrongful confinement, and POCSO offences based on alleged incident with minor. (Para 2 )
Back
Next 
2026 Supreme(Raj) 550
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
ANIL KUMAR UPMAN, J.
Mukesh Kumar, S/o. Shri Mewaram - Petitioner
Versus
State Of Rajasthan, Through PP - Respondent
S.B. Criminal Misc Second Suspension Of Sentence Application (Appeal) No. 120 of 2026 IN S.B. Criminal Appeal No.2103 of 2022
Decided On : 06-03-2026
Advocates Appeared:
For the Petitioner: Mr. Govind Prasad Rawat
For the Respondent: Mr. Vinay Singh Yadav, PP
For the Petitioner: Mr. Govind Prasad Rawat
For the Respondent: Mr. Vinay Singh Yadav, PP
Suspension of sentence pending appeal may be granted where the appellant has undergone significant incarceration and there is an unlikely prospect of an early hearing due to large case pendency, provided there are strong grounds to challenge the conviction.
Headnote:(A) Indian Penal Code - Sections 363, 366 and 344 - Protection of Children from Sexual Offences (POCSO) Act - Section 5(l)/6 - Bharatiya Nagarik Suraksha Sanhita (BNSS) - Section 430 - Suspension of sentence - Conviction for kidnapping and sexual offences - Application for suspension of sentence pending appeal - Consideration of period of incarceration and pendency of appeal - Where the accused has undergone a significant term of imprisonment and there is a large pendency of appeals with no immediate prospect of hearing, the sentence may be suspended if strong grounds to assail the conviction are available. (Para 6)
(B) Bail and Suspension of Sentence - Criteria for grant - Balance between the gravity of the offence and the delay in appellate hearing - Period of incarceration to be a relevant factor in determining the entitlement to suspension of sentence pending final disposal of the appeal. (Para 6)
Facts of the case:
The appellant was convicted under Sections 363, 366, 344 of the IPC and Section 5(l)/6 of the POCSO Act and sentenced to twenty years of imprisonment. A previous application for suspension of sentence was withdrawn with liberty to renew if the appeal was not heard within a year. The appellant contended that the victim was a major, citing medical evidence and discrepancies in school records, and that the victim had accompanied the appellant voluntarily and participated in physical relations of her own volition. The appellant had already undergone incarceration for approximately six years and four months.
Findings of Court:
The Court found that the appellant had presented strong grounds to challenge the conviction based on medical evidence and testimonies. Considering the significant period of incarceration and the lack of immediate prospects for the appeal to be heard due to a large pendency of criminal appeals, the Court deemed it a fit case for suspension of sentence.
Issues: Whether the appellant is entitled to the suspension of sentence during the pendency of the appeal, considering the period of incarceration, the evidence regarding the victim's age, and the judicial backlog.
Ratio Decidendi: The court held that when an appellant has served a substantial period of imprisonment and the appeal is unlikely to be heard in the near future due to systemic delays, and where there are plausible grounds to challenge the conviction, the suspension of sentence pending appeal is justified to prevent the appellant from serving the entire sentence before the appeal is heard.
Result: Application allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Defence: consent, victim's age unreliable, no immediate hearing. State: victim minor, consent immaterial. (Para 4 , 5 )
3. Incarceration of 6 years 4 months, large pendency, strong grounds to assail conviction justify sentence suspension. (Para 6 )
4. Long incarceration with no early hearing prospect constitutes strong ground for suspending sentence pending appeal. (Para 6 )
5. Second suspension application allowed; sentences suspended on bail with conditions until final appeal disposal. (Para 7 )
6. Can sentence suspension be granted based on long incarceration and large pendency of appeals?
Yes, when the accused has already served a significant portion of the sentence and there is no immediate hearing prospect, it is a fit case for suspension. (Para 6 )
7. Is the consent of a minor victim material in POCSO and IPC offences?
No, if the victim is below 18 years, her consent is immaterial for offences like kidnapping and POCSO. (Para 5 )
ORDER :
ANIL KUMAR UPMAN, J.
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 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 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 reco
