[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Hasan Khan vs State Of Rajasthan (2026:Rj-Jd:4206) on 22 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:4206]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
    S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                             No. 36/2026
                                         in
                    S.B. Criminal Appeal No.46/2026

1. Hasan Khan S/o Mithu Khan, Aged About 50 Years, R/o
Lalasar, P.s. Gadra Road, District Barmer (Presently Are In
Judicial Custody At District Jail, Barmer)
2. Malar Khan S/o Mithu Khan, Aged About 39 Years, R/o Lalasar,
P.s. Gadra Road, District Barmer (Presently Are In Judicial
Custody At District Jail, Barmer)
3. Bahadur Khan S/o Mithu Khan, Aged About 41 Years, R/o
Lalasar, P.s. Gadra Road, District Barmer (Presently Are In
Judicial Custody At District Jail, Barmer)
4. Hamir Khan S/o Mithu Khan, Aged About 29 Years, R/o
Lalasar, P.s. Gadra Road, District Barmer (Presently Are In
Judicial Custody At District Jail, Barmer)
                                                                    ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Siddharth Karwasara
For Respondent(s)          :     Mr. SR Choudhary, PP
                                 Mr. Javed Hussain



                HON'BLE MR. JUSTICE FARJAND ALI

Order

22/01/2026

Appellant Nos.1, 3 & 4:-

1 The instant application for suspension of sentence has been

moved on behalf of the applicants in the matter of judgment dated

16.12.2025 passed by the learned Addl. District & Session Judge

No.2, District Barmer in Sessions Case No.142/2015 whereby they

were convicted and sentenced to suffer maximum imprisonment of

10 years' R.I. (along with a fine of Rs.20,000/- and in default to

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underto 6 months' R.I.) under Section 307/34 of IPC and lesser

punishment for the other offences under Sections 341/34, 323/34,

325/34 of 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

appreciated 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 Cr.P.C.

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 Cr.P.C, 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

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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 substance and force, for the simple

reason that if the appeal ultimately succeeds, the period of

incarceration already undergone cannot be undone or restituted.

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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 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

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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. In the present case, the appellant Nos.1, 3 & 4 are not

responsible and author of the injury on frontal region underneath

which fracture was observed by the medical officer. Others have

been attributed for causing grievous injuries. 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 appellant.

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 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

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address to the trial Court as well as to the counsel in the High Court.

3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

15. The learned trial Court shall keep the record of attendance of

the accused-applicants in a separate file. Such file be registered as

Criminal Misc. Case related to original case in which the accused-

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not be taken into account for statistical purpose relating to

pendency and disposal of cases in the trial court. In case the said

accused applicants do not appear before the trial court, the

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

Appellant No.2 - Malar Khan S/o Mithu Khan :-

1. Learned counsel for the petitioner does not want to press the

instant suspension of sentence application.

2. Accordingly, the instant application is dismissed as not pressed

with liberty to petitioner to move a fresh bail if the appeal is not

heard in near future.

(FARJAND ALI),J 77-chhavi/-

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