The principle of parity applies in suspension of sentence cases when co-accused have similar roles and durations of imprisonment.

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. We have heard Mr.Ramnandan Singh, learned advocate and Mr.Meet Thakkar, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita, 2023, applicant – Vinaben W/o. Maheshbhai Jamatbhai Baria, seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302, 201 read with Section 114 of the Indian Penal Code and Sections 3(A), 4, 7, 8 of Protection of Children From Sexual Offences Act.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 06.06.2016 and order of sentence passed in Sessions Case No. 78 of 2015, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that the present applicant accused was found with the deceased in a compromising position, as a result of which, the husband of the applicant Mahesh Baria inflicted fatal blow and killed the deceased and in that act, the applicant accused had abetted her husband in commission of the alleged offence and also caused injuries to the deceased. At the end of investigation, the husband and wife chargesheeted and at the end of trial, they have been found guilty for the offence, as enumerated above.

6. Learned advocate Mr.Ramnandan Singh, appearing on behalf of the applicant while praying for suspension of sentence contended that, the husband Mahesh against whom, charge of murder proved, has been considered by the Supreme Court as the incarceration period was more than 9 years. In the case of the applicant accused, the period is more than 9 years and considering her role, and evidence in support of charge, the principle of parity would applicable and thus, he would urge that the prayer may be considered.

7. On the other hand, Mr.Meet Thakkar, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the charge of murder proved against the applicant and principle of parity as claimed is not applicable to the present case. Thus, he would urge that no case is made out.

8. Issue arises as to whether the applicant has made out a case for suspension of sentence?

9. We have carefully examined the case records and considered the submissions made at the bar. It is no doubt true that the principal accused husband Mahesh was considered by the Supreme Court. The Supreme Court vide order dated 17.01.2025 considering the custody of 9 years, the benefit of suspension of sentence and bail has been granted to Mahesh. The charge and the evidence qua the applicant is common. In such circumstances, when the applicant accused has undergone 9 years and more of the imprisonment, the principle of parity with the co-accused would certainly apply. Thus, in such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for the purpose of substantive order of sentence.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 06.06.2016 by the learned 7^th Additional Sessions Judge, Panchmahal at Godhra, in Sessions Case No. 78 of 2015 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on her furnishing a personal bond of Rs.10,000/- with one surety of the like amount to the satisfaction of the trial Court subject to condition that she will not leave India without prior permission of this Court and shall appear before this court as and when appeal is taken for final hearing and shall not chan