Rajasthan High Court – Jodhpur
Harbhajan Singh @ Sonu vs State Of Rajasthan (2026:Rj-Jd:9405) on 19 February, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:9405]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 66/2026
In
S.B. Criminal Appeal No.549/2023
Harbhajan Singh @ Sonu S/o Jaipal Singh, Aged About 22 Years,
R/o Vill. 58F, Teh. Srikaranpur, P.s. Gajsinghpur, Dist.
Sriganganagar. (Presently Lodged At Central Jail,
Sriganganagar).
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Radha, 7 Fdm, Suratgarh, Sriganganagar
----Respondents
For Petitioner(s) : Dr. R.D.S.S. Kharliya
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
19/02/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment
dated 28.04.2023 passed by the learned Special Judge,
POCSO Act Cases, District Sri Ganganagar in Sessions Case
No.50/2021 whereby he was convicted and sentenced to
suffer maximum imprisonment of twenty years RI along
with a fine of Rs. 20,000/- under Sections 376(3) of the IPC
& Section 3/4 of the POCSO Act and lesser punishment for
the other offences under Section 324 of the IPC
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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. Lastly, he submits that hearing of the appeal is likely
to take long time, therefore, the application for suspension
of sentence may be granted.
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.
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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
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
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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
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.
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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 appellant-applicant is behind the
bars since his arrest i.e. 05.03.2021. Upon a meticulous and
dispassionate appraisal of the testimonies rendered by the
prosecutrix and her mother, this Court is constrained to
observe that the prosecution narrative is marred by material
incongruities which erode its structural coherence and
probative reliability. The inconsistencies are neither
peripheral nor trivial; rather, they penetrate the substratum
of the case and impinge upon foundational aspects requiring
unimpeachable clarity.
a. The mother, in her sworn deposition, has disclosed a name for
her husband that diverges from other evidence adduced on
record. She has further asserted that the prosecutrix was born
out of her marital alliance with a different individual, described as
her former spouse. This assertion stands in palpable discord with
the broader evidentiary matrix. Such vacillation in relation to
marital status and lineage is not a minor lapse of memory; it
bears directly upon the identity and parentage of the prosecutrix,
facts which assume cardinal significance in criminal adjudication.
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b. Compounding this uncertainty is the documentary evidence
emanating from the school records of the prosecutrix. The
paternal name recorded therein is at variance with the version
articulated by the mother during her testimony. When oral
evidence and contemporaneous documentary records stand in
mutual contradiction on matters so elemental, the Court is
obligated to tread with heightened circumspection. The
divergence is not merely technical; it introduces a fissure in the
prosecution’s narrative architecture and invites legitimate doubt
regarding its internal consistency.
c. Discrepancies touching upon identity and parentage are imbued
with evidentiary gravity. They cannot be lightly dismissed as
inadvertent errors, particularly where the prosecution’s case
hinges upon the credibility of its principal witnesses. The law
mandates that the prosecution must present a case free from
reasonable doubt; where contradictions arise on core particulars,
the presumption of innocence regains its full vigour.
d. The issues canvassed on behalf of the appellant are neither
speculative nor ornamental. They are substantial, germane, and
capable of altering the judicial outcome if resolved in his favour.
Their adjudication necessitates a scrupulous re-examination and
re-appreciation of the evidentiary corpus in its entirety. Such an
exercise is not merely procedural but substantive, as it may
reveal infirmities sufficient to dislodge the conviction.
14. In these circumstances, it cannot be gainsaid that there exists a
reasonable and tangible possibility that, upon comprehensive
reassessment, the benefit of doubt may enure to the appellant.
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The grounds advanced are weighty and merit authoritative
determination through rigorous judicial scrutiny.
15. 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.
16. 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
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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.
(FARJAND ALI),J
208-Mamta/-
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