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(f) The charge-sheet of the Anti-Terrorist Squad is further reflecting the following facts :
On 7th September 2006, there was meeting of accused persons. However, as accused no.2 Shabbir Ahmed Masiullah was arrested in August 2006 by Mumbai Police, he was not present in the said meeting. In that meeting, responsibility was given to wanted accused Munnawar Ahmed Mohammed Ahmed to purchase bicycles from Hindu shop owners. It was decided to keep bombs on bicycles and APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc to carry out the explosion of those bombs at Hamidia Masjid and Bada Kabrastan as well as Mushawarat Square. On 8 th September 2006, accused no.5 Dr.Farogh Iqbal Ahmed Magdumi, accused no.12 Munnawar Ahmed Mohammed Ahmed etc. directed accused no.1 Noorul Huda Samsudoha, accused no.3 Raees Ahmed Rajjab Ali Mansuri, wanted accused Riyad Ahmed Shafi Ahmed and two unknown persons to place three bombs at Hamidia Masjid and Bada Kabrastan. Two bomb laden boxes and one bicycle on which third bomb bag was fixed was provided to them. Accused no.1 Noorul Huda Samsudoha parked bicycle at the parking lot. Accused no.3 Raees Ahmed Rajjab Ali Mansuri hung the bag of bombs on entrance gate of Hamidia Masjid. Wanted accused no.10 Riyad Ahmed Shafi Ahmed and two others placed the bomb on the wall opposite to Wazu khana of the Masjid. In a similar way, accused no.8 Mohd. Jahid Abdul Majjid Ansari, accused no.9 Abrar Ahmed Gulam Ahmed with wanted accused no.11 Ishtiyaq Ahmed Mohd. Issaq went to Mushawarat Square with another bicycle on APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc which another bomb/IED was placed. Accused no.8 Mohd. Jahid Abdul Majjid Ansari and wanted accused no.11 Isthiyaq Ahmed Mohd. Issaq parked the bicycle having bomb/IED next to the electric pole at Mushawarat Square. Thereafter, the bombs exploded causing death of several humans apart from injury to several people.

(n) According to the NIA, bombs were planted and exploded in Malegaon in the following manner :-

Accused no.14 Manohar Narwaria @ Digaria @ Sumer Thakur and accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das purchased two bicycles of Hero Jet make and Atlas make by posing themselves respectively as Sumer Thakur and Badal Yadav from the shopkeepers at Malegaon. Then one bag with two bombs came to be hung by accused no.16 Dhan Singh Shiv Singh @ Ram Lakhan Das Maharaj @ Subhas @ Lakhan on the bicycle of accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das. They both then went to Mushawarat APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc Square, Malegaon. Accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das kept one bomb/IED in metallic box and fixed that box on the carrier of the bicycle. That bicycle was then parked near the electric pole at Mushawarat Square.

10 As stated in foregoing paragraphs, we have heard Shri Sharif Shaikh, learned counsel appearing for the intervenor and subsequently on his recusal, we have heard Shri B.A.Desai, learned senior counsel appearing for the intervenor at great length of time. It is argued on behalf of the intervenor/victim of the crime in question that there is presumption against appellants/accused persons as envisaged by Section 43E of the U.A.(P) Act, as there is definite evidence regarding involvement of accused persons. Residue of nitrate was found in the soil seized at their instance. By virtue of Section 43E and 43D of the U.A.(P) 1 MANU/MH/0773/2017 APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc Act, normal law for grant of bail, as prescribed by the Code of Criminal Procedure, is dispensed with and as in the case in hand, there are reasonable grounds for believing that accusations against appellants/accused persons are prima facie true, they are not entitled for grant of bail. The impugned judgment is, as such, perfectly correct. On behalf of the intervenor/victim of the crime in question it is further urged that after blast, by Seizure Panchnama of the same day, part of bicycle frames came to be seized and statement of concerned witnesses were recorded on the very same day. There is no scope to infer that identification of the accused is not proper by those witnesses because as a result of blast occurring on the day on which bicycles were sold, identity of purchaser of bicycles used in the blast was imprinted in brain of the witnesses involved in selling of bicycles to the accused persons. There is no reason to distrust the investigation by the NIA. Appellants/accused persons took training, shared common intention, indulged in conspiracy and caused blasting of bombs, taking precious human lives and causing injuries to several innocent persons. In such a situation, according to the APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc intervenor/victim of the crime in question, trial can be directed to be expedited, as truthfulness of the Test Identification Parade can be considered at the trial. Our attention was drawn to the statement of witnesses involved in selling bicycles allegedly to appellants/accused persons and Memorandum of Test Identification Parade.

21 By keeping in mind this material collected by two investigating agencies prior to submission of the further report dated 22nd May 2013 by the NIA, now let us examine whether material collected by the NIA is sufficient to hold that there are reasonable grounds for believing that accusations against present appellants/accused nos.14 to 17 are prima facie true. Provisions of sub-section (5) of Section 43D of the U.A.(P) Act speaks about "reasonable ground". "Reasonable ground" means something more than prima facie ground. It contemplates of substantially probable case for believing that the accused is guilty of the offence alleged. For arriving at the conclusion regarding "prima facie true" the court is required to consider whether accusations are true, unless contradicted, and for this purpose, the court has to APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc undertake an exercise of cross-checking the truthfulness of allegations, on the basis of material on record. If accusation against accused persons is inherently improbable or wholly unbelievable, no "prima facie true" case is said to have made out. These parameters will have to be evaluated, by keeping in mind even the material collected by the earlier two investigating agencies prior in point of time, in view of mandate of law laid down by the Honourable Apex Court in the matter of Vinay Tyagi (supra). The NIA, which has arraigned present appellants as accused in the incident dated 8th September 2006 by its further report dated 22nd May 2013, has relied upon evidence in the nature of identification of some of them by witnesses, who were owners or employees of the bicylce shop at Malegaon, apart from their confessional statements and recoveries effected from Village Bagli in Dewas District. Forensic evidence is also being relied. Let us examine this evidence collected by the NIA for considering whether it amounts to formation of reasonable ground for believing that accusation against appellants/accused persons is prima facie true. According to the NIA, appellant/accused no.15 APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das had purchased Atlas bicycle from bicycle shop owner at Malegaon cited as witness B22. Witness cited as B23 is an employee of witness B22. Statements of witnesses B22 and B23 were recorded by the local crime branch of Nashik on 9th September 2006. Undisputedly, appellant/accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das is not a resident of Malegaon nor he had reason to be acquainted with these two witnesses. He came to be arrested on 29th December 2012. Test Identification Parade of appellant/accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das was conducted on 28th January 2013 by the Nayab Tahsildar at Mumbai Central Prison. Memorandum of Test Identification Parade dated 28th January 2013 shows that B23 - employee of the bicycle shop, identified appellant/accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das as the person who had purchasd Atlas bicycle, the frame of which was found on the blast site at Malegaon. Purchase APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc of bicycle was allegedly made in morning hours of 8 th September 2006. This appellant/accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das was arrested on 29th December 2012. He was not a resident of Malegaon. Even if version of the NIA that witness B23 had an occasion to see appellant/accused no.15 Rajendra Vikramsingh Chaudhari @ Dashrath @ Samander @ Bada Yadav @ Laxman Das is accepted, it was for a very short span of time on 8 th September 2006. Test Identification Parade was allegedly held on 28th January 2013 i.e. after a period of about 6½ years. In this Test Identification Parade, this appellant/accused is showed to be identified by witness B23. Similar is evidence in respect of appellant/accused no.14 Manohar Narwaria @ Digaria @ Sumer Thakur, who was arrested on 29 th December 2012. He, allegedly, purchased Hero Jet bicycle in the morning hours of 8 th September 2006 from Santosh bicycle dealer where A350 was working as a fitter. Statement of this witness was recorded on 10 th September 2006 by the local crime branch. Appellant/accused no.14 Manohar Narwaria @ Digaria @ Sumer Thakur was made to stand APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc in the Test Identification Parade on 28 th January 2013, in which, it is alleged that, witness A350 has identified him as purchaser of the bicycle. This appellant/accused is also not a resident of Malegaon. For a very brief span of time, it is alleged, witness A350 had an occasion to see appellant/accused no.14 Manohar Narwaria @ Digaria @ Sumer Thakur on 8 th September 2006. Still, he is stated to be identified by this witness, after a period of about 6½ years. Though accused no.1 to accused no.9 were arrested soon after the incident and despite the fact that statements of owners, son of the owner and employees of the bicycle store, from where the bicycles were allegedly purchased by persons who caused blasts at Malegaon, were recorded soon after the investigation by the local police, accused nos.1 to 9 were not shown to these witnesses nor were they subjected to Test Identification Parade even by the NIA. Witness B22, who is owner of the bicycle shop and had more opportunity to see the customers who purchased the bicycles, was not put up as an identifying witness in the Test Identification Parade conducted at the instance of the NIA, after about 6½ years of the incident. Similarly, APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc witness A347 and A353, who are owner and son of the owner of Santosh bicycle dealer, from where Hero Jet bicycle was allegedly purchased by appellant/accused no.14 Manohar Narwaria @ Digaria @ Sumer Thakur, were not put up as identifying witness in the Test Identification Parade. These aspects demonstrate that evidence regarding identification of these two appellants/accused persons, by itself, does not constitute reasonable ground, as required by provisions of Section 43D(5) of the U.A.(P) Act for denying relief as claimed by them. Further, it was pointed out on behalf of appellants/accused persons to the learned Special Judge that the Test Identification Parade was conducted after seven years of the incident and it is highly impossible that the person who saw the unknown persons before seven years, and that too for a short period, would identify them after seven years. However, this argument is lightly brushed aside by the learned Special Judge by holding that this aspect can be considered after completion of evidence of witnesses. It was expected of the learned Special Judge to consider this submission, in order to arrive at a conclusion, whether evidence of the Test Identification APPEALS-580-2016-581-2016-622-2016-623-2016-J.doc Parade, in such circumstances, amounts to reasonable ground, as required in Section 43D(5) of the U.A.(P) Act. 22 It is not in dispute that there is no witness to the fact alleged by the NIA that appellants/accused persons used the bicycles to purchase and planted bombs causing explosion at Malegaon.