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Rajasthan High Court - Jodhpur

Ganesh vs State Of Rajasthan (2026:Rj-Jd:694) on 7 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:694]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 2206/2025

                                          In

                    S.B. Criminal Appeal No.2644/2025

Ganesh S/o Hajari Ram, Aged About 19 Years, R/o Chak 17-A,
Anopgarh, District Sri Ganganagar, Rajasthan. (At Present
Lodged In Central Jail Sri Ganganagar.)
                                                                      ----Petitioner
                                      Versus
1.       State Of Rajasthan, Through Pp
2.       Sugna Bai D/o Shri Vijay Kumar, R/o Ward No. 25, Vijay
         Nagar, Police Station Vijaynagar, District Sri Ganganagar.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Deepak Menaria
                                  Ms. Shivangi Pathak
                                  Mr. Viveek Agarwal
For Respondent(s)           :     Mr. Sri Ram Choudhary, AGA



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

07/01/2026

1. Despite service of notice, no one appeared on behalf of the

victim.

2. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 15.11.2025 passed by the learned Special Judge,

POCSO Act Cases, No.2, Sri Gananagar, in Sessions Case

No.70/2025 whereby he was convicted and sentenced to

suffer maximum imprisonment of twenty years along with a

fine of Rs.50,000/- under Section 5(l)/6 of the POCSO Act

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and lesser punishment for the other offences under Sections

137 (2) and 87 of the BNS.

3. 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. The appellant was on bail during trial and did not

misuse the liberty so granted to him; hearing of the appeal

is likely to take long time, therefore, the application for

suspension of sentence may be granted.

4. 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.

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

necessarily be whether the judgment of conviction and the

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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

substance and force, for the simple reason that if the appeal

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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

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

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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. A meticulous and circumspect examination of the

prosecutrix's statement recorded under Section 161 of the

CrPC reveals a series of material inconsistencies and

progressive embellishments that cast doubt on the veracity

and reliability of the prosecution case. At the first instance,

the prosecutrix did not allege either kidnapping or sexual

assault. When her statement was subsequently recorded

before the learned Magistrate after a brief interval,

allegations of kidnapping were introduced, yet even at that

stage, there was no reference to sexual assault. It was only

in a later supplementary statement recorded by the police

that substantial and material improvements were

incorporated, wherein allegations of both kidnapping and

rape were asserted. The evolution of these statements,

therefore, calls for a careful and critical re-appraisal,

particularly in assessing the weight to be accorded to the

prosecution narrative.

15. It is further evident from the record that the prosecutrix

remained in the company of the accused for approximately

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fifteen days, during which period they travelled together on

public transport and frequented public places without raising

any alarm or seeking assistance. Such conduct, when

juxtaposed with the allegations, lends prima facie credence

to the defence plea that the relationship between the parties

was consensual, thereby introducing a serious question

regarding the voluntariness and nature of the interaction.

16. The prosecutrix has been represented to be approximately

seventeen and a half years of age at the time of the alleged

incident. However, the documentary and testimonial material

placed on record to substantiate her age does not appear to

be free from doubt and requires fresh and careful scrutiny by

this Court in its capacity as the first appellate forum. The

question of age being a determinative factor under the

relevant statutes, the evidentiary basis for its determination

assumes critical significance and demands detailed judicial

evaluation.

17. In the totality of these circumstances, the inconsistencies in

statements, the conduct of the prosecutrix, and the

uncertainties surrounding age, the evidentiary value of the

prosecution case is rendered debatable and warrants

thorough reassessment. The issues raised are of

considerable importance and carry substantial force; if

ultimately adjudicated in favour of the appellant, there exists

a realistic and tangible possibility that the outcome may

result in acquittal. The grounds advanced are appreciable,

necessitating exhaustive, meticulous, and methodical re-

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examination and re-appreciation of the evidence. There

exists, therefore, a reasonable likelihood that such judicial

exercise may ultimately redound to the benefit of the

appellant, and accordingly, these circumstances merit careful

consideration in the first appellate adjudication by allowing

the instant application for suspension of sentence.

18. 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.