[Cites 9, Cited by 0]

Rajasthan High Court - Jodhpur

Manish Kumar vs State Of Rajasthan (2026:Rj-Jd:4190) on 22 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:4190]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                               No. 1352/2025

Manish Kumar S/o Dhuleshwar @ Dhula, Aged About 21 Years,
R/o Garnala Kotada Fla Chowki Police Station Rishabdev, District
Udaipur (Presently Lodged At Central Jail, Udaipur)
                                                                    ----Petitioner
                                   Versus
1.     State Of Rajasthan
2.     Ms. "T" through her natural guardian father Mukesh S/o
       Ramlal, Age 48 Years, R/o Oadwas, Tehsil Rishabhdev,
       District Udaipur.
                                                                  ----Respondent


For Petitioner(s)          :   Mr. Nishant Bora
                               Mr. Vikas Siddhawat
                               Mr. Digvijay Singh
                               Mr. Piyush
For Respondent(s)          :   Mr. Surendra Bishnoi, AGA


                HON'BLE MR. JUSTICE FARJAND ALI

Order

22/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 29.05.2024 passed by the learned Special Court,

Protection of Children from Sexual Offences Act, 2012 and

Protection of Right of Children Commission Act, 2005 No.2

District Udaipur in Sessions Case No.47/2023 whereby he

was convicted and sentenced to suffer maximum

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

Rs.1,000/- under Sections 376(3) of the IPC and Section 3/4

of the POCSO Act and lesser punishment for the other

offences under Sections 366 & 342 of the IPC.

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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

Court. 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 sent by the SHO, Rishabhdev, District

Udaipur, service upon the victim has been duly effected.

However, despite service, no one appeared on behalf of the

victim.

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

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.

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.

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

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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.

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

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

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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.

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 consensual nature of the

relationship between the victim and the appellant does not

appear to be a debatable issue in view of the facts and

circumstances emerging on record. The fact that the victim

had earlier eloped with the appellant, for which no complaint

was lodged, further fortifies the defence version. The fact

that the victim, along with her brother-in-law and the

appellant, travelled by motorcycle to the residence of a

relative of the appellant, coupled with the further fact that

on the following day the appellant himself took the victim to

the police station, are circumstances consistent with the

innocence of the appellant.Suffice it to say that consent is

writ large in the present matter. As regards the question of

the age of the victim, this Court has minutely examined the

statements of the victim (PW-1), her mother Savita Devi

(PW-2), her father Mukesh (PW-4), and the Headmistress

Jeena (PW-5). Upon such examination, this Court finds

material incongruities with respect to the age of the victim.

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In case of Vishnu @ Undrya v. State of Maharashtra,

reported in 2006 (1) SCC 283, the Hon'ble Supreme Court

has propounded that in cases of a similar nature, where the

question of the age of the victim arises, greater preference

should be accorded to oral evidence adduced by the

prosecution witnesses, particularly the parents, rather than

to other documentary material, unless such evidence is

shown to be unreliable. In the present case, it transpires

that the victim has three siblings. The eldest is a daughter

named Kalpana, who, as per the statement of the victim's

father, was about 25 years of age at the time of the incident.

Younger to her is Sanjay, who was approximately 23 years of

age at the relevant point of time. The victim is younger to

Dilip, a male sibling, who is elder to the victim. At one point,

the mother of the victim (PW-3) stated that the victim was

four years younger than Kalpana. If Kalpana was 25 years

old at the relevant time, then, presumably, the victim would

have been over 20 years of age at that point. In cases

pertaining to penal provisions of POCSO Act, it is imperative

for the prosecution to lead evidence of impeccable quality

which could not be impeached but to say with utmost

certainty that the victim was below the age of 18 years when

the offence was committed. The argument that the

prosecution utterly and miserably failed to discharge its

burden has merit. It is also evident that the appellant was

21 years old at the time of the incident. 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,

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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.