[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Kishan vs State Of Rajasthan (2026:Rj-Jd:5918) on 2 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:5918]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
      S.B. Criminal Misc Suspension of Sentence Application
                          No.517/2025
                                        IN

                S.B. Criminal Appeal (Sb) No. 538/2025

Kishan S/o Bhairulal, Aged About 21 Years, R/o Keero Ki
Jhopadiya P.s. Bigod Dist. Bhilwara (Lodged In Dist. Jail,
Bhilwara)
                                                                      ----Appellant
                                    Versus
1.       State Of Rajasthan, Through Pp
2.       Hemraj S/o Nanda, R/o Keero Ki Jhopdiya P.s. Bigod Dist.
         Bhilwara,raj.
                                                                  ----Respondents


For Appellant(s)          :     Mr. Deepesh Gurjar
                                Mr. Bharat Gurjar
For Respondent(s)         :     Mr. Shriram Choudhary, AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

02/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 19.02.2025 passed by the learned Special Session

Judge, Protection of Children from Sexual Offences Act, 212

and Commission of Protection of Child Rights Act 2005,

No.01, Bhilwara in Sessions Case No.115/2023 whereby he

was convicted and sentenced to suffer maximum

imprisonment of 20 years' R.I. along with a fine of

Rs.20,000/- under Section 3/4(ii) of the POCSO Act and

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lesser punishment for the other offences under Sections 366

& 363 of the IPC.

2. Learned counsel for the applicant submits that, as per the

statement of PW-1 "G", sufficient reasons exist to presume

that the relations were consensual. It is contended by the

learned counsel for the appellant that the learned trial Judge

has not appreciated the correct, legal and factual aspects of

the matter and thus, reached at an erroneous conclusion of

guilt, therefore, the same is required to be appreciated again

by this court being the first appellate Court. The appellant

was on bail during trial and did not misuse the liberty so

granted to him; hearing of the appeal is likely to take long

time, therefore, the application for suspension of sentence

may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the

accused-applicant for releasing the appellant on application

for suspension of sentence.

4. As per the report furnished by learned counsel for the State,

service upon the victim/complainant has been effected;

however, no one is present on her behalf.

5. Heard learned counsel for the parties and perused the

material available on record.

6. There exists a fine yet significant distinction between the

grant of bail under Section 439 of the Code of Criminal

Procedure, 1973, and the suspension of sentence under

Section 389 CrPC. While the power exercised under Section

439 CrPC is essentially discretionary in nature and operates

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at the pre-conviction stage, the jurisdiction under Section

389 CrPC, though also discretionary, is qualitatively different

and operates post-conviction. Under Section 389 CrPC, the

appellate court is vested with a distinct authority; however,

the core consideration before the appellate forum must

necessarily be whether the judgment of conviction and the

consequent order of sentence are sustainable in the eyes of

law.

7. It is trite that the presumption of innocence, which enures in

favour of an accused, comes to an end upon conviction.

Consequently, while considering an application under Section

389 CrPC, the appellate court is required to examine the

grounds raised in the appeal, and for such purpose, the oral

and documentary evidence must be looked into. Where,

upon appreciation of evidence, it appears that the

conclusions drawn by the trial court may be erroneous, and

where logical, legal and sustainable arguments are advanced

assailing the findings, disclosing a strong and arguable case,

the appellate court is duty-bound to consider such

contentions.

8. Where the sustainability of the conviction itself becomes

debatable, and where the grounds raised in appeal, if

adjudicated in favour of the appellant, disclose a real and

substantial possibility of success, and where, prima facie, it

appears that the conviction may be reversed and the

appellant may be acquitted, the appellate court ought to

suspend the sentence pending disposal of the appeal.

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9. Such discretion deserves to be exercised with greater

circumspection in cases where the appellate forum has

sufficient reason to believe that the appeal is not likely to be

taken up for hearing in the near future. In such

circumstances, the court is required to assess whether the

grounds raised are not merely ornamental but possess real

substance and force, for the simple reason that if the appeal

ultimately succeeds, the period of incarceration already

undergone cannot be undone or restituted. In such a

situation, the court should incline towards suspending the

sentence.

10. At the same time, it is well settled that the appellate court is

not required to record any definitive or conclusive finding, as

doing so would amount to forming a pre-determined opinion

on the merits of the appeal at an initial stage, without

affording a full hearing on the appeal itself. It is sufficient if

the court merely indicates that the grounds raised are prima

facie appreciable, logical and legally tenable, that they are

founded upon settled principles of law, and that there

appears to be improper evaluation or assessment of

evidence, or non-consideration / disregard of relevant

statutory provisions.

11. It is also to be borne in mind that in several cases, the

conviction may ultimately be converted to a lesser offence,

or the propriety of the sentence imposed by the trial court,

being within its discretionary domain may also require

reconsideration, particularly whether an adequate and

proportionate sentence was imposed after due hearing on

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the point of sentence. These aspects, too, are open to re-

examination at the appellate stage.

12. An appeal, in its true sense, is an extension of the trial, for

the reason that additional evidence may be taken, and the

entire body of evidence is subject to re-appreciation on both

factual and legal parameters. At this stage, the appellate

court is empowered to set aside the conviction, modify it,

remand the matter, or maintain the judgment, as the case

may be.

13. In this High Court, thousands of criminal appeals have

remained pending for the last 20-30 years, including jail

appeals, where even the likelihood of early hearing does not

appear forthcoming. In such matters, instead of taking an

irreversible risk, the court must proceed on the safer side by

placing paramount importance on human dignity and

personal liberty.

14. In the present case, from a careful and holistic appreciation

of the material on record, it clearly emerges that the

relationship between the victim and the accused, Kishan,

was consensual in nature. PW-1, namely 'G', has

categorically deposed in her statement that at no point of

time did the accused commit any act against her will or

exercise force upon her. The testimony of the prosecutrix,

being unequivocal and free from ambiguity, does not disclose

any element of coercion or compulsion attributable to the

accused. The oral and documentary evidence relating to age

shall be scrutinized afresh by this Court in light of the checks

and balances available. All the issues raised are vital in

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nature and carry sufficient force and substance, such that if

they are adjudicated in favour of the appellant, the

possibility of acquittal cannot be ruled out. The grounds

raised are appreciable and necessitate definitive

adjudication, which would require meticulous examination

and re-appreciation of evidence, and there exists a

reasonable possibility that such exercise may ultimately

ensure to the benefit of the appellant.

15. Accordingly, the application for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that

the sentence passed by learned trial court, the details of

which are provided in the first para of this order, against the

appellant-applicant named above 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.50,000/-with two sureties of Rs.25,000/- each to

the satisfaction of the learned trial Judge 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 address to the trial Court as well as to the counsel in the High Court.