[Cites 3, Cited by 0]
Rajasthan High Court - Jodhpur
Nitesh Alias Hitesh Alias Neetu vs State Of Rajasthan ... on 10 March, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:11541-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 2124/2025
Nitesh Alias Hitesh Alias Neetu S/o Bheru Lal, Aged About 19
Years, R/o Baghupara Fala, Goran, Police Station Jhadole, At
Present Champa Colony, Run, Police Station Ambamata, District
Udaipur, Rajasthan. (Presently Lodged In Central Jail Udaipur)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Gaurav Singh
For Respondent(s) : M. C.S. Ojha, 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 14.07.2025 passed by the learned Additional Sessions
Judge, No.3, Udaipur in Sessions Case No.206/2021 (CIS
No.206/2021) whereby he was convicted under Section 302
IPC and sentenced to suffer life imprisonment along with a
fine of Rs.10,000/-.
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
Court.
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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 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
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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 indicates that the grounds raised are prima
facie appreciable, logical and legally tenable, that they are
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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. In the present case, the learned counsel for the parties have
gone through the record of the case. It has been the
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consistent case of the prosecution that two accused, the
appellant and one Kishan Lal, inflicted injuries on the
deceased, as a result of which, he succumbed to those
injuries. Both accused were tried; however, the accused
Kishan Lal was acquitted of the charges, while the appellant
was convicted based on the same set of evidence. One
additional piece of evidence relied upon by the learned trial
Court was the recovery of blood-stained clothes of the
appellant. Exhibit-P15 is the arrest memo, reflecting that the
appellant was arrested on 25.05.2021, i.e. the same day of
the incident. However, in the entire memo, there is no
whisper about smearing and steering of the clothes of the
accused. Surprisingly, when the same clothes were taken up
by the police and sent to the FSL, they were found to stained
with blood, as reported. Considering the overall facts and
circumstances of the case, particularly the partial reliance on
this evidence against the appellant, the manner in which the
shirt and pants of the appellant were recovered, and in light
of the strong, arguable case in favor of the appellant, all the
issues raised are of significant importance. 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.
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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 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.
3. Similarly, if the sureties change their
address(s), they 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 does not appear before the trial court, the
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learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(SANDEEP SHAH),J (FARJAND ALI),J
40-charul/-
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