[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Ajay vs State Of Rajasthan (2026:Rj-Jd:7500) on 10 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:7500]

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                         No. 210/2024
                                         In
                    S.B. Criminal Appeal No.997/2023

Ajay S/o Prakash, Aged About 20 Years, R/o Chitri, Police Station
Chitri, District Dungarpur (Raj.) (At Present Lodged In Central
Jail, Udaipur).
                                                   ----Petitioner
                             Versus
1. State Of Rajasthan, Through Pp
2. 'S' D/o Mukesh through guardians her mother's Rekha W/o
Muesh R/o Navgarh, galiyakot Harijan Basti PS Chitri District
Dungarpur
                                                 ----Respondent


For Petitioner(s)          :     Mr. Amardeep Lamba
For Respondent(s)          :     Mr. Surendra Bishnoi, AGA
                                 Mr. JVS Deora



                HON'BLE MR. JUSTICE FARJAND ALI

Order

10/02/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 19.10.2022 passed by the learned Special Court,

POCSO Act Cases, Dungarpur in Sessions Case No.03/2022

whereby he was convicted and sentenced to suffer maximum

imprisonment of 20 years RI along with a fine of Rs.50,000/-

under Section 376(2) of the IPC r.w. Section 5/6 of the

POCSO Act.

2. 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

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Court. He prayed that 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. 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

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,

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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

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

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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

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

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

may be.

12. 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

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placing paramount importance on human dignity and

personal liberty.

13. In the case at hand, a holistic and cumulative examination of

the material presently available on record discloses

circumstances of considerable persuasive force that lend

prima facie credence to the defence contention that the

relationship between the victim and the appellant-applicant

was consensual in character. The appellant, himself an

adolescent at the relevant time, is shown by the record to

have travelled with the victim to multiple destinations,

resided with her at different places, and utilized public

modes of conveyance throughout such movement. Of

particular significance is the victim's own admission that she

did not raise any alarm or protest at any juncture.

14. Without venturing into a conclusive determination on merits,

these attendant circumstances, at least at this interlocutory

stage, attenuate the allegation of coercion and assume

material relevance while considering the prayer for

suspension of sentence. With regard to the age of the victim,

the evidentiary substratum, including parental testimony and

documentary records, reveals aspects that necessitate

rigorous and nuanced scrutiny in appellate jurisdiction. The

determination of age being foundational to the attribution of

criminal liability, this Court considers it neither appropriate

nor permissible to render any definitive pronouncement

thereon at this stage, the issue being reserved for

comprehensive evaluation at the final hearing.

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15. In this backdrop, and confining the present observations

strictly to the adjudication of the application for suspension

of sentence, the Court is persuaded that the constellation of

circumstances emerging from the record, when viewed in

conjunction with the appellant's age and the apparent nature

of the association between the parties, constitute weighty

and germane considerations warranting the grant of

indulgence.

16. The questions raised in the appeal are neither trivial nor

illusory; rather, they possess substantial legal vitality. Should

they ultimately be resolved in favour of the appellant, the

prospect of acquittal cannot be excluded. Their adjudication

would necessarily entail meticulous reappraisal of the

evidentiary record, and there exists a reasonable and

tangible possibility that such re-evaluation may operate to

the appellant's advantage. These observations are purely

provisional and shall not influence the final determination of

the appeal, which shall be adjudicated independently and

uninfluenced by any prima facie view expressed herein.

17. 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

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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.