[Cites 6, Cited by 0]
Rajasthan High Court - Jodhpur
Bharat Singh vs State Of Rajasthan ... on 12 March, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:11849-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 2079/2025
Bharat Singh S/o Ganpat Singh Rajput, Aged About 30 Years,
Resident Of Pachundal, Police Station Bijaypur, District
Chittorgarh, Rajasthan. (Presently Lodged In District Jail
Chittorgarh)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Mahendra Singh S/o Bhanwar Singh, Aged About 50
Years, Resident Of Pachundal, Police Station Bijaypur,
District Chittorgarh, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Jaikishan Haniya
For Respondent(s) : Mr. Rajesh Bhati, PP
HON'BLE MR. JUSTICE FARJAND ALI
HON'BLE MR. JUSTICE SANDEEP SHAH
Order
12/03/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 20.08.2025 passed by the learned Additional Sessions
Judge, No.2, Chittorgarh in Sessions Case No.93/2023
whereby he was convicted under Sections 302 & 201 of IPC
and Section 4/25 of the Arms Act and sentenced to suffer life
imprisonment along with a fine of Rs.50,000/-.
2. It is contended by the learned counsel for the applicant 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 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,
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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 applicant, disclose a real and
substantial possibility of success, and where, prima facie, it
appears that the conviction may be reversed and the
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 eye-witness account of the incident
is not available on record, and the entire case of the
prosecution mainly and wholly hinges upon some
circumstances put forth by the prosecution for which it is
argued that the same was neither definite in tendency nor
conclusive in nature. There is no evidence to show that
deceased was last seen in the company of the applicant. The
argument that the prosecution miserably failed to show any
motive of the applicant to commit the death of the deceased
is also sustainable. The submissions that there was no
justification for affecting arrest of the applicant in a murder
case and the post arrest evidence has been taken up by the
learned Trial Court to justify the judgment of conviction,
certainly have force. The two witnesses Dashrath Singh(PW-
18) and Bharat Meena (PW-12) have turned hostile and did
not support the story set out in the charge-sheet. Heavy
reliance has been placed on the statement of PW-19 Parmila
Kanwar, however, after having gone through her statement,
we feel that her testimony does not unerringly point towards
the guilt of the applicant and the other circumstances are
not forming a chain so as to negate any possibility of exit for
the accused. PW-2 Surendra Singh has turned hostile, who
has been projected by the prosecution to support the factum
of recovery. Thus, in our view the applicant has a strong
arguable case in his favour and has every chance of success
in appeal, which is not going to be taken up for hearing in
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the 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 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 the benefit of the 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
accused-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.
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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
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(SANDEEP SHAH),J (FARJAND ALI),J
55-charul/-
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