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[2026:RJ-JD:5608]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc Suspension Of Sentence Application (Appeal)

No. 2207/2025

Mohd. Avesh Silawat S/o Mohd Arif, Aged About 21 Years,

Resident Of Gandhi Nagar, Gadri Khera, Police Station

Pratapnagar, District Bhilwara At Present Resident Of Behind

Kendriye Vidhyalaya, Marutinagar, Police Station Subhashnagar,

District Bhilwara. (At Present Lodged In Central Jail Ajmer)

----Petitioner

Versus

1. State Of Rajasthan, Through Pp

2. Pappu Singh S/o Ranjit Singh Chandawat, Resident Of

Adarsh Nagar, Kota Road, Police Station Bhimgunj,

District Bhilwara.

----Respondents

For Petitioner(s) : Mr. Rajendra Charan

For Respondent(s) : Mr. Shriram Choudhary, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Order

30/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 13.10.2025 passed by the learned Special Judge,

POCSO Act Cases, No.1, Bhilwara in Sessions Case

No.17/2025 whereby he was convicted and sentenced to

suffer maximum imprisonment of 20 years R.I. along with a

fine of Rs.1,00,000/- under Section 5(M)/6 of the POCSO Act

and lesser punishment for the other offences under Sections

137(2), 87, 75(2) of the BNS and Section 7/8 and 11/12 of

the POCSO Act.

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2. Despite service, no one is present to argue the matter on

behalf of the victim/complainant.

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.

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.

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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 ex