[Cites 9, Cited by 0]

Rajasthan High Court - Jodhpur

Ishaq Khan vs State Of Rajasthan (2026:Rj-Jd:544) on 7 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:544]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 26/2026

Ishaq Khan S/o Hanif Khan, Aged About 42 Years, R/o Magre Ki
Dhani, Tehsil Tauga, Police Station Sangad, District Jaisalmer. (At
Present Lodged In Central Jail Jaisalmer)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Deepak Menaria
For Respondent(s)           :     Mr. Shriram Choudhary, AGA



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

07/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 16.10.2025 passed by the learned Additional Sessions

Judge, District Jaisalmer in Sessions Case No.35/2017

whereby he was convicted and sentenced to suffer maximum

imprisonment of 10 years R.I. under Sections 326/34 &

307/34 of IPC and lesser punishment for the other offences

under Sections 325/34, 323/34, 341/34 of the IPC.

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. 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.

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

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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. 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

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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 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. The pivotal question which arises for consideration at this

stage is whether the circumstances of the case and the

nature of injuries allegedly sustained by the victim would

bring the case of the prosecution within the four corners of

Section 307 of the IPC, or not. Prima facie, the said issue

appears to be seriously debatable.

13.1 Before proceeding further, it would be apposite to

reiterate that for attracting the offence under Section 307

IPC, the prosecution is required to prima facie establish the

following essential ingredients:-

(i) that the act was done with such intention or

knowledge, and under such circumstances, that if

death had been caused by that act, the offence would

have amounted to murder within the meaning of

Section 300 IPC;

(ii) that there was an overt act committed by the

accused towards the commission of the offence;

(iii) that the nature of the weapon used, the part of the

body aimed at, the severity of the blow, and the nature

of injuries caused are such as to reasonably infer an

intention to cause death; and

(iv) that the offence hinges more upon the mens rea of

the accused rather than the actual consequence of the

act.

13.2 The nature of injuries, their situs, and the medical

opinion rendered, when considered in juxtaposition

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with the prosecution version, do raise a substantial and

arguable doubt as to whether the act was committed

with the intention or knowledge necessary to constitute

an offence under Section 307 IPC, indeed there is a

force in the appeal, thus, this court is of the opinion

that it is a fit case for suspending the sentence

awarded to the accused-appellants.

14. In the present case, the sentence of the co-accused Hanif

Khan has already been suspended by this Court vide order

dated 05.01.2026. 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.

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

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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.