[2025:RJ-JP:36361] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Misc. 2nd Suspension Of Sentence Application No. 1547/2025 In S.B. Criminal Appeal No.141/2024 Dinesh Bairwa @ Lala S/o Shri Kaduram Bairwa, Aged About 21 Years, R/o Village Nayapura Post Maholi Police Station Karauli Sadar District Karauli Presently C/o Behind Of ICICI Bank, 07 Number Choraha Jagatpura Jaipur (Rajasthan) (Presently Confined In Central Jail At Jaipur) ----Applicant Versus State Of Rajasthan, Through Public Prosecutor ----Respondent For Applicant(s) : Mr. Brij Sharma For Respondent(s) : Mr. N.S. Dhakar, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 13/08/2025 1. The applicant herein has been convicted for offences under Sections 363, 366 and 376(2)(n) of IPC and Sections 3/4, 5/6 and 16/17 of Protection of Children from Sexual Offences Act, 2012 vide judgment dated 01.12.2023 passed by learned Special Judge, Protection of Children from Sexual Offences Act, 2012 and Commission for Protection of Child Rights Act, 2005, No.3, Jaipur Metropolitan-I (Raj.) in Sessions Case No.01/2023 (CIS No.03/2023) and has been sentenced to maximum punishment of 20 years. [2025:RJ-JP:36361] (2 of 9) [SOSA-1547/2025] 2. The first application for suspension of execution of sentence filed on behalf of the applicant was dismissed on 09.10.2024 thereafter, matter has not been placed for final hearing by the Registry thus, this second application for suspension of execution of sentence has been preferred. 3. Learned counsel for the applicant submits that learned trial court has erred in convicting and sentencing the applicant as mentioned above. Learned trial court has not appreciated the evidence in right and correct perspective. It is further submitted that till date, applicant has suffered incarceration of about more than three years. Considering the ratio laid down by Hon’ble Supreme Court in case of Bhagwan Ram Shinde and Others v. State Of Gujarat, reported in (1999) 4 SCC 421, wherein, it has been held that when a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances, therefore, second application for suspension of execution of sentence may be considered liberally. 4. Learned counsel appearing for the State opposes the submissions made by learned counsel for the applicant. He submits that first application for suspension of execution of sentence preferred on behalf of the applicant was dismissed on merits and there is no material change in circumstances. Learned counsel relies upon the judgment passed on 06.08.2025 by Hon’ble Supreme Court in the case of Jamnalal vs. State of Rajasthan & Anr. in SLP (Crl) No.69 of 2025 wherein it has [2025:RJ-JP:36361] (3 of 9) [SOSA-1547/2025] been observed that in any case of fair chance of acquittal, application for suspension of sentence can be considered. 5. Heard learned counsel for the applicant-applicant and learned Public Prosecutor on the second application for suspension of execution of sentence. Perused the material available on record. The First application for suspension of execution of sentence was considered and dismissed by this court on merits vide order dated 09.10.2024 and there is no material change in circumstances and merely on the basis of period of incarceration, applicant does not become entitled to get his sentence suspended, particularly, when no efforts on behalf of the applicant is appearing on record to get this appeal listed for final hearing. While setting aside the facility of suspension of execution of sentence, it has been observed by Hon’ble Supreme Court in the case of Jamnalal (supra), that:- “10. One would have expected the High Court hearing an application under Section 389 of Cr.P.C. for suspension of sentence to examine whether prima facie there was anything palpable on the record to indicate if the accused had a fair chance of overturning the conviction. In Omprakash Sahni v. Jai Shankar Chaudhary and Another, this Court had the following to say on the scope of Section 389 of the Cr.P.C. “23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction. [2025:RJ-JP:36361] (4 of 9) [SOSA-1547/2025] Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified. 24. From perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of sub-section (3) neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post- conviction stage viz. Sections 437, 438, 439 and 389(1) CrPC. 33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we [2025:RJ-JP:36361] (5 of 9) [SOSA-1547/2025] shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.” 13. In the affidavit filed before us, Respondent No.2 has contended that there is no allegation of post-bail misconduct or breach of conditions warranting the setting aside of the bail order. The submission is fallacious. There is clear distinction in law between setting aside of the bail by a higher Court and cancellation of the bail. While cancellation of bail is due to some supervening circumstances like breach of bail condition, setting aside of the bail is [2025:RJ-JP:36361] (6 of 9) [SOSA-1547/2025] concerned not with the breach of condition but with the justifiability and soundness of the order granting bail (See Neeru Yadav v. State of Uttar Pradesh and Another). 14. It has been further contended that there was lack of corroborative medical and forensic evidence. The State, in its counter affidavit, averred that the FSL/DNA report could not be presented by the prosecution before the conclusion of trial and that the FSL report which has since been received does mention the presence of male DNA/semen of the accused on the private part and underwear of the victim. We are not inclined to comment one way or the other on the merits of the FSL report and we leave it to the prosecution if it so desires to resort to such legally permissible procedure as is available in law to bring the same on record. 15. Independent of the FSL and DNA report and considering the nature of the case and the antecedents of Respondent No.2 and after carefully examining the judgment of conviction, we feel that the High Court was not justified in suspending the sentence. 16. The reasoning of the High Court, set out above, falls far short of the parameters required under Section 389 of Cr.P.C. for enlargement of a convict, punished for heinous [2025:RJ-JP:36361] (7 of 9) [SOSA-1547/2025] offence, on bail after suspending the sentence. The finding that no sexual assault was found, without considering the overall nature of the evidence of the case, is completely untenable. According to the evidence of the prosecutrix, Respondent No.2, at gunpoint, closed her mouth and forcibly took her to the house of Amro and committed rape on her. All that the medical evidence said was that no conclusive opinion about the crime could be given since FSL Report was awaited. That does not mean that the ocular evidence could be ignored. As far as non-availability of FSL Report is concerned, the prosecution has explained the situation and the Trial Court has also found that the non-availability of the DNA Report did not adversely affect the case of the prosecution. The reasoning that despite the availability of washrooms in the house it was difficult to believe that the prosecutrix could go out for the toilet, is conjectural in nature. 17. In Vijay Kumar v. Narendra and Others this Court observed as follows: “10. On perusal of the record and on consideration of the submissions made by the learned counsel appearing for the parties, we are of the view that in the context of the facts and circumstances of the case the High Court was in error in passing the order releasing the [2025:RJ-JP:36361] (8 of 9) [SOSA-1547/2025] respondents on bail. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned Single Judge to consider the accused persons to be entitled to the discretionary relief of bail pending the appeal. The principle is well settled that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. Our attention has not been drawn to any material which would show that the learned Single Judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them.” [2025:RJ-JP:36361] (9 of 9) [SOSA-1547/2025] Though said in the context of Section 302 IPC, it applies with equal force to a case of the present nature under the POCSO Act, also.” 6. Upon a consideration of the arguments advanced on behalf of the applicant and having regard to the facts and circumstances and in view of observation made by Hon’ble Supreme Court in the case of Jamnalal (supra), I am of the view that there is no material change in circumstances and merely on the basis of period of incarceration, applicant does not become entitled to get his sentence suspended. Thus, looking to the nature and gravity of offence, this court is not inclined to suspend the sentence of the applicant. 7. Accordingly, this second application for suspension of execution of sentence stands dismissed. (ANIL KUMAR UPMAN),J CHARU SONI /73