Principle of parity applies in granting suspension of sentence when co-accused are released.

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

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

2. We have heard Mr.Malay Patel, learned advocate and Mr.Adityasinh Jadeja, learned APP for the respective parties.

3. By way of this application under Section 430 of Bharatiya Nagrik Suraksha Sanhita , 2023, applicant – Komalben W/o. Arunbhai Parmar seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 302 , 307 read with Section 114 of the Indian Penal Code .

4. The present appeal and the application for suspension of sentence arise from the judgment dated 15.02.2020 and order of sentence passed in Sessions Case No.681 of 2018, whereby, the applicant herein was convicted and sentenced as under:

5. Facts and circumstances giving rise to file present application are that due to matrimonial dispute of present applicant with her husband, she had left her matrimonial home and around the period in February-2018, she along with her kids were living at parental home. The deceased being a father in law of the applicant on 01.02.2018 went to parental home of the applicant to resolve the dispute where dispute arose between the deceased and the family members of the applicant herein, as a result of which, by pouring inflammable substance, the deceased was burn alive by the applicant and two co- accused. On the basis of dying declaration, and upon registration of the offence, the accused were arrested and upon completion of the investigation, they were tried by the Court of Sessions and have been convicted and sentenced, as referred above.

6. Learned advocate Mr.Malay Patel, appearing on behalf of the applicant while praying for suspension of sentence contended that, co-accused Manjuben and Madhuri have been considered by this Court and therefore, applying the principle of parity, the case of the applicant may be considered. In addition to that, he submitted that the custody period is more than 8 years and chances of early hearing of the appeal, is bleak and remote. In such circumstances, he prayed to release the applicant on bail and order of sentence be suspended.

7. On the other hand, Mr.Adityasinh Jadeja, learned Additional Public Prosecutor has supported the impugned judgment and order of conviction as passed by the trial Court and contended that the parity qua the applicant is not applicable with co- accused and having regard to the nature of offence, no any exceptional ground is made out and therefore, he requested this Court to dismiss this application.

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. While releasing the co-accused, and passing the order of suspension of sentence, in Para-5 of the order, we have observed and considered that “there are no specific allegations regarding the inflammable substance and who has acted in what manner, and therefore, the applicants have an arguable case on merits.” In such circumstances, the role attributed to the present applicant herein seems to be at par with the co-accused and therefore, the principle of parity would applicable to the facts of the present applicant. The incarceration period is 8 years and till date, there is no possibility of early hearing of the appeal. In such circumstances, we are persuaded to exercise our discretion in favour of the applicant convict for th