Suspension of sentence pending appeal may be granted based on the principle of parity with co-accused, the length of incarceration already undergone, and doubts regarding the identification of the accused by independent witnesses.

IA ORDER

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

Rule. Learned APP waives service of Rule on behalf of respondent State and Mr.Ravani, learned advocate appearing for the first informant waives service of notice of rule.

2. By way of this application under Section 430(1) of BNSS, 2023, the applicant herein, seeks suspension of sentence awarded to him by judgment and order of sentence dated 22.03.2024 passed in Sessions Case No.3 of 2013 by the learned 3rd Additional Sessions Judge at Una, Gir Somnath.

3. The present appeal and the application for suspension of sentence arise from the aforesaid judgment and order of conviction and sentence where the appellant was convicted and sentenced for the offence punishable under Sec. 143 of IPC for Simple Imprisonment of 3 months; for the offence punishable under Sec. 147 of IPC for Simple Imprisonment of 1 years and fine of Rs. 500/- and in default to pay fine simple imprisonment of 10 days; for the offence punishable under Section 148 of IPC for Simple Imprisonment of 1 years and fine of Rs. 500/- and in default to pay fine simple imprisonment of 1 month; for the offence punishable under Sec. 506(2) of IPC for Simple Imprisonment of 1 years and fine of Rs. 500/- and in default to pay fine simple imprisonment of 1 month; for the offence punishable under Sec. 302 read with section 34 and Section 302 read with Section 120(b) and Section 302 with Section 149 of IPC Rigorous Imprisonment of Life and fine of Rs. 5000/- and in default to pay fine simple imprisonment of 6 months.

4. Facts and circumstances giving rise to file present application as is appearing from the application that on 29.07.2012 at around 6:30 in the evening, while the deceased along with the witness Aarif Mansuri had come to the business place of the complainant for collecting the funds, at that time, five accused persons came in Santro car and dashed the car with the motorbike of the deceased in presence of the complainant and other witnesses. It is the case of the prosecution that thereafter the accused persons alighted from the car to make an assault on the deceased, therefore, the deceased started running from the said place and he was intercepted near Mohammed Shafi Dargah, where four other accused persons as well as seven other unknown persons started assaulting the deceased with weapons like sword, dhariya, knife and stick, due to which, the deceased succumbed to the injuries. Accordingly, FIR came to be lodged.

5. Learned Advocate Mr.Dagli appearing for the applicant has submitted that the case of prosecution is based mainly on three eye-witnesses and they have supported the case of prosecution; but when their evidence has been cross-examined, it has come on record that they were not knowing some of the accused and their photographs have been made viral on the social media. He would further submit that co-accused persons viz., Hanif Dadabhai Jhakhara and Samsuddin Dadabhai Khakhra have been considered for bail by this Hon’ble Court and as per order dated 04/12/2024 and 18/10/2024, the sentence imposed upon them have been suspended, as also another co-accused – Imran Dost Mahmad @ Dosubhai Koreja came to be considered for bail while suspending the sentence as per order dated 23/02/2026 by this Hon’ble Court and therefore, on the aspect of parity, he would submit to allow the present application. He would further submit that the present applicant is alleged to have given a sickle blow and as of now the period of incarceration undergone by him is of 11 years and 04 months an