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Rajasthan High Court - Jodhpur
Lalaram Alias Lalchand vs State Of Rajasthan ... on 10 March, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:11531-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 1987/2025
in
D.B. Criminal Appeal No.353/2025
Lalaram Alias Lalchand S/o Shri Govindram Ram, Aged About 28
Years, R/o Surjan Nagar, Police Station Sri Dungargarh, Dist.
Bikaner (At Present Central Jail, Bikaner.)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Jhavar Prakash Chhangani
For Respondent(s) : Mr. SS Rathore, PP
HON'BLE MR. JUSTICE FARJAND ALI
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
10/03/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 06.10.2025 passed by the learned District Judge
Cader Sri Dungargarh, District Bikaner in Sessions Case
No.01/2023 whereby he was convicted and sentenced to
suffer life imprisonment (along with a fine of Rs.30,000/- in
default of payment of fine further three months' S.I.) under
Section 302 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 factual aspects of the matter and thus, reached at an
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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-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 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 ensures
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,
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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
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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 he 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 empowasd 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, the eye witness account of the incident
is not available on record and the entire case of the
prosecution mainly depends upon some circumstances put
forth by the prosecution through the charge-sheet. One of
the circumstance as put forth was that of extra judicial
confession for which it is stated that the accused appellant
confessed the commission of crime to certain people,
however, as a matter of fact, they have turned hostile during
the course of trial and did not support the story set out in
the charge-sheet. The judgment of conviction mainly rely
upon extra judicial confession and recovery of a weapon
(kasiya), however, it is argued that even if the recovery is
taken up on its face value, the same do not connect the
appellant with its recovery since no blood group was
detected upon the weapon when it was sent to serology
division for detection of blood group. Learned counsel
heavily place reliance on the judgment passed by Hon'ble
the Supreme Court in the case of Sharad Birdhi Chand
Sarda Vs. State of Maharastra, decided on 17.07.1984,
1984 AIR 1622, 1985 SCR (1) 88, and plead that
circumstances here in this case are neither definite in
tendency nor conclusive in nature and therefore, not
unerringly pointing towards guilt of the petitioner and
therefore the benefit of doubt ought to have been granted to
him. We have pondered over the submission and the cardinal
principles propounded by Hon'ble the Supreme Court time
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and again so also gone through record of the case
particularly the statements of hostile witnesses and feels
that present is a fit case for extending the benefit of bail to
the appellant by accepting the application for suspension of
sentence. 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.
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:-
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 change the place of
residence, he will give in writing their changed
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address to the trial Court as well as to the
counsel in the High Court.
3. Similarly, if the sureties change their
address(s), he will give in writing their changed
address to the trial Court.
15. The learned trial Court shall keep the record of attendance of
the accused-applicant in a separate file. Such file be
registered as Criminal Misc. Case related to original case in
which the accused-applicant was tried and convicted. A copy
of this order shall also be placed in that file for ready
reference. Criminal Misc. file shall not be taken into account
for statistical purpose relating to pendency and disposal of
cases in the trial court. In case the said accused applicant do
not appear before the trial court, the learned trial Judge shall
report the matter to the High Court for cancellation of bail.
(SANDEEP SHAH),J (FARJAND ALI),J
37-chhavi/-
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