The principle of parity allows for suspension of sentence when the roles of co-accused are considered, leading to a favorable decision for the applicant.

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. Aamir Pathan, learned counsel for the applicant and Mr. Jay Mehta, learned APP for the respondent-State.

3. By way of this application under Section 389(1) of the Criminal Procedure Code, 1973, applicant Jay @ Jalo Harshadbhai Bhoi seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Section 302 r/w. Section 34 of the IPC.

4. The present appeal and the application for suspension of sentence arise from the judgment dated 02.12.2022 and order of sentence passed in Sessions Case No.128 of 2021, whereby, the applicant herein was convicted and sentenced as under:

(i) Section 302 r/w. Section 34 of IPC: R.I. for Life and fine of Rs.5,000/-;

5. Facts and circumstances giving rise to file appeal as well as this application are that on the date of occurrence, deceased had indulged into gambling activity with the accused persons behind a Primary School at Village Bharda. The deceased asked for sum of Rs.100/- from the accused no.1 and the accused no.1 had given an assurance that he will give that amount after some time. Thereafter, quarrel took place and the accused no.1 gagged the neck of the deceased, twice he was made to dash into the floor and a plaster applied thereto, which has led the death of the deceased. The brother of deceased filed FIR being C.R. No.11215014210352 of 2021 with Khambholaj Rural Police Station, District: Anand.

5.1 Pursuant to the said FIR, the applicant accused was apprehended and at the end of investigation, chargesheet came to be filed against him. He was tried by the Sessions Court. The learned Sessions Court has convicted the applicant for the offences as referred above.

6. Mr. Aamir Pathan, learned counsel for the applicant while praying for suspension of sentence, contended that, the principal accused Kirit Bhoi who had strangulated the deceased, was considered by this Court and therefore, having regard to the role assigned to the applicant herein, the principle of parity would be applicable to the facts of present case and on this count, the case of the applicant may be considered.

7. On the other hand, Mr. Jay Mehta, learned APP vehemently opposed the contention and submitted that the parity would not apply and having regard to the seriousness of the offence, the application may not be allowed.

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

9. We have examined the records and the reasons assigned by the trial court for conviction. It is alleged that, the accused Kirit Bhoi strangulated the deceased, whereas, the applicant - original accused no.3 caught hold the deceased. In our opinion, the principal accused has been considered by this Court and having considered the role assigned to the applicant herein, the principle of parity would be applicable to the case of the applicant. Thus, without much discussion on merits of the case, on this count, we are inclined to exercise our discretion in favour of the applicant.

10. Accordingly, present application is allowed. Rule is made absolute to aforesaid extent. The sentence of the applicant awarded vide judgment dated 02.12.2022 by the learned 4^th Additional Sessions Judge, Anand in Sessions Case No.128 of 2021 is suspended during the pendency of the Criminal Appeal and the applicant shall be released on bail on his 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 he 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 change his address and in case of change in address, shall inform to the concerned police station as well as to this Court. Direct service permitted.