[Cites 6, Cited by 0]

Rajasthan High Court - Jodhpur

Rama @ Ramlal vs State Of Rajasthan (2026:Rj-Jd:1837) on 13 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:1837]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 1664/2025

                                          in

                    S.B. Criminal Appeal No.2154/2025

Rama @ Ramlal S/o Kawa, Aged About 47 Years, Rama @ Ramlal
S/o Kawa, Aged About 47 Years, R/o Limbadiya, Police Station
Chitri, District Dungarpur (Rajasthan). (Presently Confined In
Central Jail, Udaipur)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. JVS Deora
For Respondent(s)           :     Mr. NS Chandawat, PP
                                  Mr. Shambhoo Singh



                HON'BLE MR. JUSTICE FARJAND ALI

Order

13/01/2026

1. The instant application for suspension of sentence has been

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

26.08.2025 passed by the learned Addl. Sessions Judge, Sagwara

District Dungarpur in Session Case No.35/2023, whereby he was

convicted and sentenced to suffer maximum imprisonment of 10

years' R.I. under Section 304(II)/149 of IPC (with a fine of

Rs.10,000/- and in case of default of payment, further 3 months'

S.I.) and for lesser offence under Sections 147/149 & 341/149 of

IPC.

2. It is contended by the learned counsel for the appellant that

the learned trial Judge has not appreciated the correct, legal and

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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. 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

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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 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

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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 placing

paramount importance on human dignity and personal liberty.

13. As per the story set out by the prosecution, two accused, the

appellant and one Kamlesh caused injuries to the deceased. One

lacerated wound was found on parietal region of the deceased and

injury No.4 contusion was noticed on lateral side of abdomen. As

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per medical officer, probably the injury No.4 on abdomen can be

responsible for the death of deceased. The cause of death was

cardio-respiratory arrest and that too after two day of incident.

The possibility of not treating well and not providing adequate

medical assistance and medication cannot be ruled out. There was

no previous animosity and no evil design to kill the victim rather

they were resident of the same vicinity, known to each other and

perhaps were in cordial relation since they used to exchange

money to each other. On the day of incident they grappled after

altercation, as a consequences of which one accused caused injury

by a stick and the other threw a stone which unfortunately hit the

abdomen of the deceased which proved fatal. The accused

Kamlesh was a juvenile. Therefore, proceeding against him was

separated and only the appellant was charge-sheeted for

committing an offence of murder. The evidence though has been

discussed by learned trial court and acquitted him from the charge

of murder. However, he passed an order of conviction under

Section 304(2) of IPC deeming it a case of culpable homicide not

amounting to murder with the knowledge of causing injury. The

agency recovered a laathi from the appellant and thus

presumably, he may have caused injury on the parietal region of

the victim and as per the autopsy report, the above injury was

simple in nature and was not responsible for the death of the

victim. The appellant has a strong arguable case in his favour. The

appellant is languishing in jail since last two and half years.

Having regard to the nature of the objections raised, the quantum

of sentence imposed, and the fact that the appeal is not likely to

be taken up for hearing in the near future, this Court finds that

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the grounds urged are vital in nature and carry sufficient force and

substance. If adjudicated in favour of the appellant, the possibility

of acquittal or interference with the conviction cannot be ruled

out. The issues raised necessitate detailed re-appreciation of

evidence and definitive adjudication, and there exists a reasonable

likelihood 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-

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:-

(i). That he will appear before the trial Court in the month of

January of every year till the appeal is decided.

(ii). 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.