[Cites 8, Cited by 0]

Rajasthan High Court - Jodhpur

Smt Kalchi Devi vs State Of Rajasthan on 3 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:6002]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
       S.B. Criminal Misc Suspension of Sentence Application
                            No.192/2026
                                 IN
              S.B. Criminal Appeal (Sb) No. 210/2026

1.       Smt Kalchi Devi W/o Gewar Ram, Aged About 60 Years,
         R/o Hansiyas, Tehsil Merta, District Nagaur. (Appellant
         Sentences Suspended For 30 Days)
2.       Hathiram S/o Gewar Ram, Aged About 34 Years, R/o
         Hansiyas,   Tehsil      Merta,       District      Nagaur.       (Appellant
         Sentences Suspended For 30 Days)
3.       Surendra S/o Gewar Ram, Aged About 40 Years, R/o
         Hansiyas,   Tehsil      Merta,       District      Nagaur.       (Appellant
         Sentences Suspended For 30 Days)
4.       Baldevram S/o Gewarram, Aged About 38 Years, R/o
         Hansiyas,   Tehsil      Merta,       District      Nagaur.       (Appellant
         Sentences Suspended For 30 Days)
                                                                    ----Appellants
                                     Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Appellant(s)           :    Mr. Ranjeet Joshi
                                Mr. Kapil Bissa
For Respondent(s)          :    Mr. NS Chandawat, Dy.G.A.



                HON'BLE MR. JUSTICE FARJAND ALI

Order

03/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicants in the matter of judgment

dated 07.01.2026 passed by the learned Additional Sessions

Judge, Merta in Criminal Case No.25/2019 whereby they

were convicted and sentenced to suffer maximum

imprisonment of 3 year's S.I. along with a fine of Rs.5,000/-

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under Section 367 of the IPC and lesser punishment for the

other offences under Sections 365, 325/34, 323 & 341 of the

IPC.

2. 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 apreciated again by this court being the first appellate

Court. The appellants were on bail during trial and did not

misuse the liberty so granted to them; 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-applicants for releasing the appellant on application

for suspension of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. 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

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

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necessarily be whether the judgment of conviction and the

consequent order of sentence are sustainable in the eyes of

law.

6. 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.

7. 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.

8. 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

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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.

9. 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.

10. 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

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

examination at the appellate stage.

11. 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

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

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

may be.

12. In the 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.

13. All the issues raised are vital in 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 appellants.

14. 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 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

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Judge and whenever ordered to do so till the disposal of the

appeal on the conditions indicated below:-

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

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.