Suspension of sentence under Section 389 CrPC requires a prima facie showing of a fair chance of acquittal based on palpable errors in the trial court's judgment; parity with co-accused is only applicable if their roles in the crime are substantially similar.

IA ORDER

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

By way of present application preferred under Section 389 of the Code of Criminal Procedure, 1973, the applicant –original accused No.3 is seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order of conviction in Sessions Case No.520 of 2017 passed by the learned Additional Sessions Judge, Court No.3, Ahmedabad on 24.04.2023, whereby, the learned Sessions Judge has sentenced the applicants to undergo rigorous imprisonment for life and fine of Rs.4,000/- each and in default, simple imprisonment of four years for the offence punishable under Section 302 of the IPC, rigorous imprisonment for life and fine of Rs.3,000/- each and in default, simple imprisonment of four years for the offence punishable under Section 307 of the IPC, rigorous imprisonment for six months and fine of Rs.1500/- each and in default, simple imprisonment of two months for the offence punishable under Section 120(B) of the IPC and rigorous imprisonment for six months and fine of Rs.200/- each and in default, simple imprisonment of fifteen day for the offence punishable under Section 135(1) of the IPC. The learned Trial Court has further ordered that all the sentences were to run concurrently.

Heard learned advocate Mr.B.M.Mangukiya for the applicants and learned APP Mr.L B Dabhi for the respondent – State. Perused the documents produced on record.

Learned Advocate Mr.B.M.Mangukia for the applicant would submit that the applicant is in custody since 24.04.2023 and the applicant is convicted for the offence under section 302 of the IPC and ordered to undergo imprisonment for life and fine. The applicant has a good chance of success in the appeal as there is no evidence showing the involvement of the applicant in the offence. Learned Advocate for the applicant would further submit that the learned Trial Court has not appreciated the evidence in proper manner and has failed to spell out and record the reasons for arriving at the conclusion of conviction.

3.1 While inviting the attention of this Court to an order dated 30/08/2024 passed in CR.MA No.2 of 2023 in CR.A No.1441 of 2023 in respect of co-accused – Parshottambhai Bachubhai Dhaval whose application seeking suspension of sentence and grant of bail has been considered by this Hon’ble Court, learned advocate for the applicant seeks parity as the role attributed to the present applicant and to that of co-accused is the same and therefore, on this ground also the present application may be considered.

3.2 Learned advocate Mr.Mangukia for the applicant further submits that the present appeal is not likely to be heard in near future and hearing of the same would take a long time and hence, no purpose would be served by keeping the applicant in jail for indefinite period with the hardened criminals. The applicant has a good case on merits and hence, the order of the sentence may be suspended and the applicant may be released on regular bail on appropriate terms and condition.

Learned APP Mr.L B Dabhi for the respondent – State has vehemently opposed this application and has submitted that the learned Trial Court has appreciated all the aspects and has found the applicant guilty and no interference of this Court is required by allowing the present application for suspension of sentence and has urged this Court to reject the present application. He would further submit that insofar as the parity aspect is concerned as submitted by learned advocate for the applicant, the role attributed to the present applicant and in respect of co- accused – Parshottambhai is different and therefore, the parity aspect would not be helpful to the present applicant. He would therefore submit to dismiss the present application.

Having heard the learned Advocates appearing for the respective parties and examining the record of the case, at the outset, it would be apt to refer to the observations