[Cites 4, Cited by 0]
Rajasthan High Court - Jodhpur
Hari Singh vs State Of Rajasthan ... on 12 March, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:11866-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 304/2026
Hari Singh S/o Mokam Singh, Aged About 27 Years, Resident Of
Barna, Police Thana Khuhadi, District Jaisalmer (Presently
Lodged In Dist. Jail Jaisalmer)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Karan Singh Chouhan
For Respondent(s) : Mr. Sharwan Singh, 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 appellant-applicant in the matter of
judgment dated 23.12.2025 passed by the learned
Additional Sessions Judge, Jaisalmer, District Jaisalmer, in
Sessions Case No.33/2017 (43/2017) "State of Rajasthan v.
Rewant Singh & Ors.", whereby he was convicted and
sentenced to suffer life imprisonment along with a fine of
Rs.10,000/-, in default to undergo six months of Simple
Imprisonment, under Sections 147, 148 & 302 read with
Section 149 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,
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reached at an 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-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 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
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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.
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 name of the appellant-applicant
does not find place in the FIR lodged by the first informant,
Ummed Singh, which has been tendered into evidence as
Ex.P-13. It is specifically mentioned in the FIR that five
accused persons, whose names along with their fathers'
names have been stated therein, came to the place of
occurrence and assaulted the deceased. Even in the
supplementary note, which has been marked as part M to N,
the Police Inspector has reported that the vehicle was being
driven by Roop Singh and that there were only five persons
in the vehicle. The submission is that the name of the
appellant-applicant has subsequently been inserted into the
matter at a later stage merely to wreak vengeance upon
him. Learned Public Prosecutor has also failed to offer any
explanation as to how, when the names of five persons were
already mentioned in the FIR and there was no whisper
about the appellant-applicant, how the sixth person came to
be implicated in the matter. The appellant-applicant thus has
a very strong arguable case in his favour. The meticulous
examination of the evidence, however, would be undertaken
at the time of final hearing of the appeal. The statements of
the prosecution witnesses appear to fall within the category
of material improvements of such a nature that if the same
are set aside, nothing remains against the accused. In the
eye of law and justice, such witnesses cannot be treated as
wholly reliable or credible. All the issues raised are vital in
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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
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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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
64-devrajP/-
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