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[2026:RJ-JD:15220-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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

No. 1029/2025 In

Criminal Appeal No.95/2021

Vinod Kumar S/o Jagdish Chandra, Aged About 36 Years, R/o 12Kyd, Khajuwala, police Station Khajuwala, District Bikaner,

Rajasthan (Confined In District Jail, Jaisalmer)

----Petitioner Versus

State Of Rajasthan, Through PP ----Respondent

For Petitioner(s) : Mr. B. Ray Bishnoi For Respondent(s) : Mr. C. S. Ojha, PP

HON'BLE MR. JUSTICE FARJAND ALI HON'BLE MR. JUSTICE CHANDRA SHEKHAR SHARMA

Order

02/04/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated 16.07.2021 passed by the learned Additional Sessions Judge Jaisalmer, District Jaisalmer in Sessions Case No.120/2016(171/2014) whereby he was convicted and sentenced to suffer life imprisonment along with a fine of Rs.10,000/- under Sections 302/149 IPC and lesser punishment for the other offences under Sections 148, 324/149 & 323/149 of IPC and under Section 4/25 of the

Arms Act.

2. Defect(s) pointed out by the registry is overruled.

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[2026:RJ-JD:15220-DB] (2 of 6) [SOSA-1029/2025] 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.

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

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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 not likely to be taken up for hearing in the near future. In such ci