HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Suspension of Sentence Application No.2196/2025 In S.B. Criminal Appeal (Sb) No. 2631/2025 Uday Hussain @ Sonu S/o Islamudeen, Aged About 23 Years, Resident Of Ward No. 12, Rodawali, Police Station Sadar, Hanumangarh District Hanumangarh. (At Present Lodged In District Jail, Hanumangarh.)

----Appellant Versus

1. State Of Rajasthan, Pp

2. Rajendra Kumar S/o Shri Luna Ram, Aged About 36 Years, Resident Of House No 13 , Ward No. 37 Sdm Colony Hanumangarh Town District Hanumangarh.

----Respondents For Appellant(s) : Mr. Rakesh Matoria For Respondent(s) : Mr. SR Choudhary, PP HON'BLE MR. JUSTICE FARJAND ALI

Order

21/01/2026

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 13.11.2025 passed by the learned Special Judge, POCSO Act Cases No.1, Hanumangarh in Sessions Case No.03/2022 whereby he was convicted and sentenced to suffer maximum six years’ SI along with a fine of Rs.2000/- under Sections 5(L)/6 and 3/4 (2) of POCSO Act for each count and lesser punishment for the other offences under Sections 363 and 366 of IPC.

2. Learned Public Prosecutor states that service upon the respondent No.2 has been effectuated.

3. 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. The appellant was on bail during trial and did not misuse the liberty so granted to him; hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

4. 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.

5. Heard learned counsel for the parties and perused the material available on record.

6. 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.

7. 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.

8. 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.

9. Such discretion deserves to be exercised with greater circumspection in cases where the appellate forum has sufficient reason to believe that the appeal is no