Bhagwana Ram vs State Of Rajasthan ...
2026 Latest Caselaw 3642 Raj

Rajasthan High Court - Jodhpur

Bhagwana Ram vs State Of Rajasthan ... on 10 March, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:11574-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                  No. 320/2026

Bhagwana Ram S/o Sh Pemaram, Aged About 48 Years, Resident
Of Dheerdesar Chotiyaan, Police Station Shri Dungargarh,
District Bikaner (Rajasthan). (At Present Lodged In Central Jail,
Bikaner)
                                                                      ----Applicant
                                       Versus
State Of Rajasthan, Through PP
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Bhawani Singh Mertia
For Respondent(s)            :     Mr. Rajesh Bhati, 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 appellant-applicant in the matter of

judgment/order dated 03.09.2025 passed by the learned

Additional Sessions Judge, Shri Dungargarh, District Bikaner,

in Session Case No.68/2018 (CIS No.06/2018) "State of

Rajasthan v. Bhagwanaram", whereby he was convicted and

sentenced to suffer life imprisonment along with a fine of

Rs.20,000/-, in default to undergo three months of Simple

Imprisonment, under Section 302 of IPC.

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

applicant 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

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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-applicant 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

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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-applicant, disclose a

real and substantial possibility of success, and where, prima

facie, it appears that the conviction may be reversed and the

appellant-applicant 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 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

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placing paramount importance on human dignity and

personal liberty.

13. In the present case, the postmortem report Ex.P-21 reflects

an incised stab wound with clean-cut regular margins on the

chest of the deceased, and the same appears to be the

cause of death of the deceased. There was no previous

animosity between the parties and it appears that the

incident took place in the spur of the moment without pre-

meditation or prior consultation. The submissions, in the

facts and circumstances of the case and considering the

injuries received by the deceased, that the matter would fall

within the definition of culpable homicide not amounting to

murder, certainly have force. The appellant-applicant has

been behind bars for more than eight years. 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-applicant, 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-applicant.

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

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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.

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

learned trial Judge shall report the matter to the High Court for

cancellation of bail.

                                   (SANDEEP SHAH),J                                                    (FARJAND ALI),J
                                    47-devrajP/-




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