[Cites 4, Cited by 0]

Rajasthan High Court - Jodhpur

Vikas Soni vs State Of Rajasthan (2026:Rj-Jd:3212) on 19 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:3212]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
     S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 2237/2025

                                          in

                    S.B. Criminal Appeal No. 2679/2025

 Vikas Soni S/o Champatraj Soni, Aged About 45 Years, New
 Nehru Nagar Shivganj Police Station Shivganj District Sirohi
 (Lodged In Central Jail, Jodhpur)
                                                                     ----Petitioner
                                      Versus
 State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Vineet Jain, Sr. Advcoate
                                  Mr. Surendra Kumar Shrimali
For Respondent(s)           :     Mr. Surendra Bishnoi



                HON'BLE MR. JUSTICE FARJAND ALI

Order

19/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicants in the matter of judgment

dated 12.11.2025 passed by the learned Sessions Judge,

Sirohi, in Special Sessions Case No.14/2020 whereby he was

convicted and sentenced to suffer maximum imprisonment

of 5 years under Section 306 of IPC (with fine of Rs.20,000/-

in case of failure to deposit fine further six months' SI) and

lesser punishment for the other offences under Sections

498A of IPC.

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

the learned trial Judge has not appreciated the correct, legal

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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.

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 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 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 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. In the present case, after going through the statement of

PW-8 Granth, who is 16 year old son of the deceased as well

as the statement of PW-9 Siddhi Soni, 17 year old daughter

of the deceased, this Court feels that genesis of the

occurrence has deliberately been withheld by the

prosecution. I have gone through the statement of PW-10

Raja Arya, a fitness coach and also made observance of

exchange of several call details in between him and the

deceased. The fact that the marriage had taken place 17

years back and during this period never ever any complaint

of maltreatment, harassment or whatever stated by PW-1

Nathmal was ever reported or even told to anyone is a fact

favourable to the plea of innocence raised by the accused.

What was the immediate or instant cause which may have

driven the deceased to end her life is also a mystery,

however in light of the material available on record,

fastening of criminal liability upon the appellant for having

instructed the deceased to end her life would not be safe.

This Court being the first appellate court owes a duty to

make further critical appreciation of legal and factual aspect

of the matter in an appeal which is not going to be done in

near future. 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

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would require meticulous examination and re-appreciation of

evidence, and there exists a reasonable possibility that such

exercise may ultimately enure 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 address to the trial Court as well as to the counsel in the High Court.