[2026:RJ-JP:1217] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc 2nd Suspension Of Sentence Application No. 2329/2025 in S.B. Criminal Appeal No. 2140/2022 Munesh S/o Nand Kanwra Bairwa, Aged About 24 Years, Resident Of Bhajana Police Station Sapotra District Karauli (Raj) Presently At Readymade Choth Shop Batoda Police Station Batoda, District Sawai-Madhopur (Raj.) (At Present Accused Confined In District Jail Bundi) ----Petitioner Versus State Of Rajasthan, Through P.p. ----Respondent For Petitioner(s) : Mr. Rajendra Singh Tanwar For Respondent(s) : Mr. Onkar Singh Rajpurohit, PP HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 12/01/2026 1. The second application for suspension of sentence is preferred by present appellant- Munesh S/o Nand Kanwra Bairwa in pending appeal arising out of order of conviction and sentence dated 10.10.2022 in Sessions Case No.60/2020 (48/2020) passed by learned Special Judge (POCSO Act, Cases) No.2, Bundi whereby accused-Lalaram and Munesh were convicted and sentence under Section 376(D) IPC. 2. Learned counsel for the appellant 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 [2026:RJ-JP:1217] (2 of 4) [SOSA-2329/2025] 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 petitioner submits that first SOS application was dismissed by this Hon’ble Court on 04.04.2023 and since then the petitioner has undergone more than 4 years and 11 months. He further submitted that the main accused Lalaram was enlarged on bail by a Co-ordinate Bench on 06.11.2025 in SOS application no. 1657/2024 in S.B. Criminal Appeal No. 2231/2022. He also submitted that the case of present petitioner is on better footing than Lalaram. He also referred merits of the case and submitted that as per medical report, the hymen of victim was intact thus, offence of rape was not committed. 4. Aforesaid contentions were opposed by learned Public Prosecutor. He submitted custody certificate and same is taken on record. 5. Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 6. First SOS application of present petitioner was considered by this Court on 04.04.2023 and while dismissing the application we have observed as under: “A perusal of record clearly indicated that the present appellant was released on bail during trial on 20.04.2021 in S.B. Criminal Misc. 2nd Bail Application No.4794/2021 and was on bail till order of sentence. Herein, the fact of the matter is that the victim was mentally challenged individual and not able to understand anything so she can’t take care of herself. Herein, when we [2026:RJ-JP:1217] (3 of 4) [SOSA-2329/2025] perused the statement of PW-1 along with PW-4 and PW-5, it clearly indicated that victim was mentally ill person and she has clearly stated that two persons have taken her and thereafter harassed her. The harassment according to PW-1 was only molestation whereas according to PW-5 and other witnesses, it was rape when this PW-16 victim was examined before the trial court then she has clearly indicated that she was put down and she was harassed on her private parts by two persons. On the day of examination of victim, one of the accused-Lalaram was not present but present appellant was present before trial court and learned trial court surprisingly has conducted the test identification parade wherein victim has identified two other individuals (other than present appellant) in the matter, when one of them was not present. Looking to medical condition of this victim such manoeuvre should not be adopted by the trial court which was thoroughly unwarranted while recording the statement of mentally challenged person. Herein, though the medical examination has not corroborated exact rape with victim but when we look at statement of PW-2 and PW-3 and also the report Ex.P2 then, it is clearly indicated that there were bruises on lower part of victim and according to PW-3 there is presence of tears on vaginal wall. This is a genital injury and such type of recto vaginal tears in a young woman can only happen during insertion of any object or rape. Herein, the question is with regard to discrepancy between PW-2 and PW-3 is concerned, this can be seen during course of argument of present appeal but as regard to identity of present appellant is concerned, the qualification of victim is very well known to everyone. Hence, looking to all facts and circumstances, I am not inclined to release appellant-accused on bail on the ground that he was not identified and was released on bail during trial in totality of circumstances and evidence available on record. The present application for suspension of sentence is liable to be dismissed and the same is accordingly dismissed.” 7. The first SOS application was considered on merits, and we have considered the medical examination of the victim, who is a mentally retarded person. A Co-ordinate Bench, while considering the SOS application of Lalaram on 06.11.2025, has allowed [2026:RJ-JP:1217] (4 of 4) [SOSA-2329/2025] primarily on basis of arguments advanced on behalf of Lalaram including medical of victim. 8. We have taken note of the arguments advanced in the case of Lalaram and also taken note of the statement of PW-2 Dr. D.D. Meena. The petitioner has served more than 4 years, 10 months, and 24 days till date. The petitioner was on bail during trial, but the fact is very important that the victim was a physically challenged person. 9. Considering the totality of facts and circumstances of the case, the petitioner is not entitled to the benefit of the principle of parity on the basis of the SOS application of Lalaram. 10. Hence, the second SOS application filed by the present petitioner is hereby dismissed. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /7