A court should generally suspend a fixed-term sentence pending appeal unless exceptional circumstances indicate otherwise.

1. Rule.

Mr. J. K. Shah, learned Additional Public Prosecutor and Mr. R. C. Kodekar, learned Special Public Prosecutor, waive service of notice of Rule for respondent Nos.1 and 2, respectively.

2. The present application under S.389 of the Code of Criminal Procedure , 1973 ("the Code") has been preferred by the applicant, through his wife, with a prayer to suspend the judgment and order of conviction dated 02.06.2016, and the order of sentence dated 17.06.2016, passed by the learned Special Judge, Designated Court for Speedy Trial of Riot Cases (Gulbarg Society), Ahmedabad in Sessions Case No. 152 of 2002 and allied matters, more specifically, Sessions Case No.195 of 2009, pending the final disposal of the criminal appeal, on terms and conditions as may be deemed fit by the Court, and to enlarge him on bail.

3. The applicant, along with two co - accused persons (accused Nos. 47 and 50), has filed Criminal Appeal No. 1177 of 2016, against the abovementioned judgment and order of conviction and sentence, which has been admitted on 04.10.2016.

4. The matter arises out of the incident that took place on 28.02.2002, referred to as the "Gulbarg Society Massacre Case", wherein it is alleged by the prosecution that a mob, initially of about five to seven thousand persons belonging to the majority community, the strength of which swelled to fifteen to twenty - five thousand, forcibly entered Gulbarg Society, a residential area, by breaking open the front gate and rear compound wall and caused mayhem, as a result of which sixty nine persons of the minority community lost their lives and extreme damage was caused to properties.

5. The applicant herein is the original accused No.59. The offences for which the applicant has been convicted and the sentence imposed are as below:

The aforesaid sentences have been ordered to run concurrently and the time spent by the applicant in judicial custody is given as set off by computing the total quantum of sentence. The applicant is, therefore, serving sentence of seven years' imprisonment.

6. We have heard Mr. Jal S. Unwalla, learned counsel for Mr. Rahul R. Dholakia on behalf of the applicant and Mr. R. C. Kodekar, learned Special Public Prosecutor on behalf of respondent No.2 - Special Investigating Team ("SIT"). Mr. J. K. Shah, learned Additional Public Prosecutor, has adopted the arguments advanced on behalf of respondent No.2.

7. Mr. Jal S. Unwalla, learned counsel for the applicant, has made the following submissions:

(i) The incident took place on 28.02.2002. The police recorded statements of witnesses in the year 2002 itself. The name of the applicant did not figure in the statements recorded at that point of time, nor in the affidavits that were given to the police. The name of the applicant did not surface at all till the year 2008. It was only after the Supreme Court appointed the SIT in the year 2008, that for the first time, the name of the applicant has been mentioned in the statements of only three witnesses, out of a total number of 338 prosecution witnesses. The said statements were in a printed format and were prepared and given to the SIT pursuant to the advertisement issued by it.

(ii) No Test Identification Parade of the applicant took place and he was, for the first time, identified by PW - 106, in Court. However, the other two witnesses, namely, PW - 116 and 191, in whose testimonies the name of the applicant figures, failed to identify him.

(iii) The testimony of PW - 106 has not been believed by the Trial Court insofar as the offence under S.302 of the IPC is concerned. However, the Trial Court has thou