[Cites 5, Cited by 0]

Rajasthan High Court - Jodhpur

Subhash vs State Of Rajasthan on 7 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:701]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                    No. 2018/2025

                                              In

                    S.B. Criminal Appeal No.1954/2024

Subhash S/o Brij Lal, Aged About 22 Years, R/o 12 Bgd (7 K.m.),
Ps    Jaitsar,     Dist.     Anopgarh.          (Lodged        In      Central   Jail   Sri
Ganganagar)
                                                                           ----Petitioner
                                          Versus
1.       State Of Rajasthan, Through Pp
2.       Kala Ram S/o Hansraj, 7 J K M (12 Bgd) Police Station
         Jaitsar District Ganganagar
                                                                        ----Respondents


For Petitioner(s)               :     Ms. Komal R Verrma
For Respondent(s)               :     Mr. Surendra Bishnoi, AGA



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

06/01/2026

1. Despite service of notice, no one has 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 21.11.2024 passed by the learned Special Judge,

POCSO Act Cases No.2, District Sri Ganganagar in Sessions

Case No.11/2023 whereby he was convicted and sentenced

to suffer maximum imprisonment of twenty years RI along

with a fine of Rs.20,000/- under Section 3/4(2) of the

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (2 of 7) [SOSA-2018/2025]

POCSO Act and lesser punishment for the other offences

under Sections 363 and 366 of the IPC.

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

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (3 of 7) [SOSA-2018/2025]

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

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (4 of 7) [SOSA-2018/2025]

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,

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (5 of 7) [SOSA-2018/2025]

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. The Court, upon a prima facie evaluation of the record, is of

the considered view that the defence plea of a consensual

relationship cannot be summarily discarded. When examined

against the conduct of the prosecutrix and the attendant

factual milieu, the plea appears to possess discernible

substance. The assertion that the appellant and the victim

were discovered in a compromising situation by her uncle,

which seemingly acted as the catalyst for the registration of

the FIR, is not devoid of plausibility and warrants judicious

consideration in the given circumstances.

15. It further transpires that the victim's familial background is

marked by vulnerability her father having passed away and

her mother having entered into another relationship,

resulting in the victim residing with her uncle and

grandmother. These surrounding circumstances bear

relevance while assessing the element of voluntariness and

the true nature of the alleged relationship.

16. On the crucial issue of age determination, the prosecution

has placed reliance on Exhibit P-8, namely the school

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (6 of 7) [SOSA-2018/2025]

admission form. However, the evidentiary substratum

underpinning the recorded date of birth is conspicuously

fragile. The entry is stated to have been supplied by one

Smt. Usha Devi, who has not been examined by the

prosecution. Likewise, no school authority responsible for

receiving or verifying the admission particulars has been

produced. In the absence of such foundational evidence, the

authenticity and probative value of the school record remain

shrouded in doubt.

17. In this backdrop, both the question of consent and the

determination of age necessitate a fresh, careful, and

comprehensive re-appreciation by this Court in its capacity

as the first appellate forum. The issues raised strike at the

very root of the prosecution case and are of substantial

significance. If adjudicated in favour of the appellant, they

may reasonably culminate in an acquittal. Given the

arguable nature of the grounds urged and the requirement

of meticulous scrutiny of the evidence, this Court is satisfied

that a strong case for suspension of sentence is made out.

Thus, the application for suspension of sentence deserves to

be allowed.

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

(Uploaded on 09/01/2026 at 06:36:38 PM)

[2026:RJ-JD:701] (7 of 7) [SOSA-2018/2025]

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.