[Cites 4, Cited by 0]

Rajasthan High Court - Jodhpur

Babu vs State Of Rajasthan on 2 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
     S.B. Criminal Misc. Suspension of Sentence Application
                          No.206/2026
                                       in
             S.B. Criminal Appeal (Sb) No. 227/2026

1.     Babu S/o Kishan Alias Keshan Tabiyad, Aged About 24
       Years, Modar Fala Handli Police Station Bichhiwara District
       Dungarpur. (Presently Lodged At Central Jail, Udaipur)
2.     Ashvini Alias Ashvin S/o Rupa Tabiyad Meena, Aged About
       19 Years, Modar Fala Handli Police Station Bichhiwara
       District Dungarpur. (Presently Lodged At Central Jail,
       Udaipur)
3.     Kiran Alias Girish S/o Narsi Tabiyad, Aged About 22 Years,
       Modar Fala Handli Police Station Bichhiwara District
       Dungarpur. (Presently Lodged At Central Jail, Udaipur)
4.     Kava Alias Rajesh S/o Kishan Tabiyad Meena, Aged About
       19 Years, Modar Fala Handli Police Station Bichhiwara
       District Dungarpur. (Presently Lodged At Central Jail,
       Udaipur)
5.     Rupa S/o Hakra Tabiyad Meena, Aged About 55 Years,
       Modar Fala Handli Police Station Bichhiwara District
       Dungarpur. (Presently Lodged At Central Jail, Udaipur)
6.     Kishan Alias Kesav S/o Hakra Tabiyad Meena, Aged About
       48 Years, Modar Fala Handli Police Station Bichhiwara
       District Dungarpur. (Presently Lodged At Central Jail,
       Udaipur)
                                                                 ----Appellants
                                   Versus
State Of Rajasthan, Through Pp
                                                                ----Respondent


For Appellant(s)         :     Mr. S.S. Shaktawat
For Respondent(s)        :     Mr. N.S. Chandawat, DyGA



            HON'BLE MR. JUSTICE FARJAND ALI

Order

02/02/2026

1. At the outset learned counsel for the appellant does not

press the instant application seeking suspension of sentence

to the extent of the appellant No.1 Babu. Accordingly, the

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instant application is dismissed as not pressed to the extent

of the appellant No.1 Babu with liberty to the said appellant

to moe a fresh application for suspension of sentence after

some time. In the remaining order, wherever word

appellants is mentioned, it would be excluding the appellant

No.1 Babu.

2. The instant application for suspension of sentence has been

moved on behalf of the appellant-applicants in the matter of

judgment dated 27.01.2026 passed by the learned

Additioanl Sessions Judge, Dungarpur in Sessions Case

No.36/2019 whereby they have been convicted for the

offences under Sectionss 147, 341 and 307/149 of the IPC

and awarded the maximum sentence of 7 years' simple

imprisonment.

3. It is contended by the learned counsel for the appellants 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.

4. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the

accused-applicants for releasing the appellant on application

for suspension of sentence.

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

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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

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

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appellant may be acquitted, the appellate court ought to

suspend the sentence pending disposal of the appeal.

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

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reconsideration, particularly whether an adequate and

proportionate sentence was imposed after due hearing on

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, the main allegation is against the

appellant Babu, whose application for suspension of

sentence has not been pressed by the learned counse for the

appellant. Learned counsel for the appellant has raised

number of defects in the prosecution case, which are worth

consideration by this court. All the issues raised are vital in

nature and carry sufficient force and substance, such that if

they are adjudicated in favour of the appellants, the

possibility of acquittal cannot be ruled out. The grounds

raised are appreciable and necessitate definitive

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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-applicants named above (Except the appellant

No.1 Babu) shall remain suspended till final disposal of the

aforesaid appeal and they shall be released on bail provided

each of them 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.