The principle of parity can justify the suspension of a sentence when the roles of co-accused are similar and delays in appeal hearing are significant.

ORDER :

ILESH J. VORA, J.

1. Rule. Learned APP waives service of Rule on behalf of respondent State. By consent, Rule is fixed forthwith.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant Fardin Sarfuddin Jharkol, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 324 of the Indian Penal Code.

3. The present appeal and the application for suspension of sentence arise from the judgment dated 28.07.2016 and order of sentence passed in Sessions Case No. 25 of 2013, whereby, the applicant herein was convicted and sentenced as under:

4. Facts and circumstances giving rise to file present application is that, on 15.02.2012, the applicant- accused and others have hatched the criminal conspiracy to kill the deceased Raja @ Rafiuddin Saiyed and in order to execute the said conspiracy, the accused armed with knives, inflicted fatal blows on the body of the deceased, as a result of which, he succumbed to his injuries. The motive behind the murder was relationship of the deceased with sister of accused Shahrukhkhan Pathan, as a result, in order to take revenge, the deceased had been killed. So far as applicant-original accused no.3 is concerned, it was alleged that, he being a party of criminal conspiracy, had inflicted knife blows on the body of the deceased. The accused were arrested pursuant to the FIR filed by Saiyed Valiuddin PW.5 and after completion of investigation, they were chargesheeted. The Court of Sessions after recording the oral as well as documentary evidence and upon appreciation of the same, held guilty the applicant and others for the murder of the deceased and directed them to undergo life imprisonment.

5. Learned advocate Mr. M. G. Pandya, appearing on behalf of the applicant while praying for suspension of sentence contended that, the applicant convict has undergone 9 years and 4 months of his imprisonment. That, the co-accused Faridbhai Ghachi and the role of applicant – Fardin Sarfuddin are identical and similar in nature. That, the co-accused Faridbhai Ghachi vide order dated 15.10.2024 has already been enlarged on bail and his substantial sentence has been suspended by this Court. Thus, on the principle of parity, the learned counsel urge that, the case of the applicant may be considered.

6. On the other hand, Mr. Jay Mehta, learned Additional Public Prosecutor and Mr. A.S. Timbaliya, learned advocate for the respondent no.2 have supported the impugned judgment and order of conviction as passed by the trial Court. They submitted that the principle of parity alone would not be a relevant factor to grant relief. In the instant case, the court below after appreciation of evidence has convicted the applicant and the reasons for conviction are based on evidence on record and therefore, there is nothing palpable on the face of the record on the basis of which, it can be said that, the conviction is not sustainable in law. In such circumstances, it is prayed that no any exceptional case is made out.

7. Having regard to the facts and circumstances of the case, the issue arises for our determination, as to whether the applicant has made out a case for suspension of sentence?

8. We have carefully examined the case records and considered the submissions made at the bar. The convict applicant Fardin Sarfuddin has undergone 9 years and 4 months of his imprisonment. The role of present applicant convict and the co-accused Faridbhai Ghachi, is at par. Thus, there is no dispute about applicability of principle of parity. In our opinion, the benefit of principle of parity is available to the applicant herein. The other factor would be a delay, as the chances of appeal being heard in near future is bleak. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substant