Rajasthan High Court – Jodhpur
Jitendra vs State Of Rajasthan (2026:Rj-Jd:10295) on 25 February, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:10295]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 238/2026
1. Jitendra S/o Bhinvraj, Aged About 38 Years, R/o Village
Suvadiya Bas, Tehsil Jayal, District Nagaur, Rajasthan.(At
Present Lodged In Central Jail Ajmer)
2. Kiran D/o Bhinvraj, Aged About 32 Years, R/o Village
Suvadiya Bas, Tehsil Jayal, District Nagaur, Rajasthan.(At
Present Lodged In District Jail Nagaur)
3. Vinod S/o Bhinvraj, Aged About 34 Years, R/o Village
Suvadiya Bas, Tehsil Jayal, District Nagaur, Rajasthan.(At
Present Lodged In District Jail Nagaur)
----Petitioners
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ram Prem
For Respondent(s) : Mr. SR Choudhary, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
25/02/2026
1. The instant application for suspension of sentence has been
moved on behalf of the applicants in the matter of judgment
dated 31.01.2026 passed by the learned Addl. Session
Judge, Jayal, District Nagaur in Sessions Case No.10/2023
whereby he was convicted and sentenced to suffer maximum
imprisonment of 7 years along with a fine of Rs.20,000/-
under Sections 326/34 of IPC and lesser punishment for the
other offences under Sections 452 & 323/34 of IPC.
2. It is contended by the learned counsel for the appellants that
the learned trial Judge has not appreciated the correct, legal
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
[2026:RJ-JD:10295] (2 of 6) [SOSA-238/2026]
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.
3. Per contra, learned public prosecutor has vehemently
opposed the prayer made by learned counsel for the
accused-applicants for releasing the appellants 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 Cr.P.C. 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 Cr.P.C, 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 ensures
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
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
[2026:RJ-JD:10295] (3 of 6) [SOSA-238/2026]
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 appellants, disclose a real and
substantial possibility of success, and where, prima facie, it
appears that the conviction may be reversed and the
appellants 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
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
[2026:RJ-JD:10295] (4 of 6) [SOSA-238/2026]
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 he 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 empowasd to set aside the conviction, modify it,
remand the matter, or maintain the judgment, as the case
may be.
12. In the 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
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
[2026:RJ-JD:10295] (5 of 6) [SOSA-238/2026]
placing paramount importance on human dignity and
personal liberty.
13. In the present case, there was a cross case of same
incident lodged at instance of rivalry parties but with two
different narratives. The fact remains that the complainant
party of this case were also charge-sheeted in the FIR
lodged at the instance of the petitioner. The arguments
that it was a case of free fight and a further argument that it
cannot be ascertained at this stage as to who were the
aggressor is a question to ponder in appeal. All the issues
raised are vital in nature and carry sufficient force and
substance, such that if they are adjudicated in favour of the
appellants, 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 appellants.
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
appellants-applicants named above shall remain suspended
till final disposal of the aforesaid appeal and they 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
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
[2026:RJ-JD:10295] (6 of 6) [SOSA-238/2026]
ordered to do so till the disposal of the appeal on the
conditions indicated below:-
1. That they will appear before the trial Court in
the month of January of every year till the
appeal is decided.
2. That if the applicants change the place of
residence, they will give in writing their 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), he 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-applicants in a separate file. Such file be
registered as Criminal Misc. Case related to original case in
which the accused-applicants 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 applicants
do 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
236-chhavi/-
(Uploaded on 26/02/2026 at 11:58:35 AM)
(Downloaded on 26/02/2026 at 08:41:48 PM)
Powered by TCPDF (www.tcpdf.org)
