Bombay High Court
Sharad Bhausaheb Kalaskar vs State Of Maharashtra And Anr on 29 April, 2026
Author: A. S. Gadkari
Bench: A. S. Gadkari
2026:BHC-AS:20432-DB
KSG 75-IA-312-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.312 OF 2025
IN
CRIMINAL APPEAL NO.641 OF 2024
Sharad Bhausaheb Kalaskar
Aged: 31 years, Occu. : Agriculture,
R/o: Village Kesapuri, Post. Daulatabad,
Taluka & Dist. Aurangabad.
[Presently lodged in Kalamba Central,
Prison Kolhapur] .....Applicant/Org.
Accused No.3
V/s.
1. State Of Maharashtra
2. Central Bureau of Investigation,
Special Crime Branch,
A-2, Wing, 8th Floor, CGO Complex,
C.B.D. Belapur, Navi Mumbai-400 614. .....Respondents
__________________________________________
Mr. Niteen V. Pradhan, Senior Advocate a/w. Ms. Shubhada Khot, Adv.
Shahen Pradhan, Mr. Virendra Ichalkaranjikar, Mr. Siddh Vidya i/b Ms.
Ameeta Kuttikrishnan, Ms. Shambhavi Desai, Mr. Danish Patel & Ms.Gayatri
Pore for the Applicant in IA 312/25.
Mr. Sandesh Shukla a/w. Mr. Amit Singh, Mr. Bhushan Bhadgale,
Ms.Ashlesha Suryavanshi and Ms. Janhavi Jadhav i/b Mr. Omkar Nevgi for
the Intervener in IA 2802/24.
Mr. Amit Munde a/w. Mr. Jai Vohra, Mr. Shantanu Nakashe for the
Respondent-CBI.
Mr. Ashish I. Satpute, APP for the Respondent-State.
__________________________________________
CORAM : A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
DATE OF RESERVE : 23rd DECEMBER, 2025.
DATE OF PRONOUNCEMENT : 29th APRIL, 2026.
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ORDER (Per : A. S. GADKARI, J.) :
–
1) This is an Application under Section 389(1) of the Criminal
Procedure Code, 1971, by the Original Accused No.3, for suspension of
sentence and releasing him on bail during the pendency of his Appeal.
2) The Applicant is convicted under Section 302 read with 34 of
the Indian Penal Code, 1860 (‘I.P.C.’) and under Section 3(25) of the Indian
Arms Act and is sentenced to suffer rigorous imprisonment for life and to
pay fine of Rs.5,00,000/- (Rupees Five Lacs Only), in default of payment of
fine to suffer further simple imprisonment for one year, by the learned
Additional Sessions Judge, Pune, in Sessions Case No.706 of 2016, by its
Judgment and Order dated 10th May, 2024.
2.1) By the same Judgment, the Applicant is acquitted of the
offence punishable under Section 120B of the I.P.C. and under Sections
27(1) and 27(3) of the Indian Arms Act and under Section 16 of the UAPA
Act.
3) Heard Mr. Niteen Pradhan, learned counsel for the Applicant,
Mr. Ashish Satpute, learned APP for the Respondent No.1, State, Mr. Amit
Munde, learned Special P.P. for Respondent No.2, C.B.I. and Mr.Sandesh
Shukla, learned counsel for the Intervenor. Perused record.
4) It is the prosecution case that, Dr. Narendra Dabholkar
(Deceased), was rationalist, social worker and crusader against superstition.
He founded ‘Maharashtra Andhashraddha Nirmoolan Samiti’. He was also
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instrumental in pursuing the Government’s ‘Anti Superstition Bill’. The
organization like Sanatan Sanstha and its sister organizations were
opposing the said bill. That, there was enmity/hatred against Dr. Narendra
Dabholkar by Sanatan Sanstha. Dr. Narendra Dabholkar was shot dead on
20th August, 2013, at about 7:20 a.m. (7:30 a.m.) on Omkareshwar Bridge,
by two unidentified assailants, within the jurisdiction of Deccan Police
Station, Pune City.
5) P.S.I. Navnath B. Rangat, (PW No.3), lodged First Information
Report i.e. C.R. No.154/2013 with Deccan Police Station, Pune City against
unknown persons for the offence punishable under Section 302 read with
34 of the I.P.C. and under Sections 3(25) of the Indian Arms Act. The
investigation of the said crime was subsequently transferred to Respondent
No.2, C.B.I. under the Orders of this Court, dated 9 th May, 2014. The C.B.I.
registered the crime as RC. 4/(S)/2014/Mum. of 2014 of C.B.I. SCB
Mumbai and conducted further investigation. During the course of
investigation, the Applicant came to be arrested on 3 rd September, 2018.
After completion of investigation, the Respondent No.2 filed charge-sheet
before the trial Court. The motive behind the crime as alleged by
prosecution is, ideological differences between the organization of deceased
i.e. Andhashraddha Nirmoolan Samiti and the accused who are associated
with Sanatan Sanstha.
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KSG 75-IA-312-2025.doc 6) The prosecution in support of its case examined in all 20
witnesses. The trial Court by its impugned Judgment and Order dated 10 th
May 2024, has convicted and sentenced the Applicant as noted
hereinabove.
7) Mr. Pradhan, learned counsel appearing for the Applicant
submitted that, in the second charge sheet filed on 13 th February, 2019, the
applicant and co-accused were shown as assailants using two firearms
without any valid, cogent, logical reason and any substantial factual matrix,
supported, by direct or circumstantial evidence. That, the Test Identification
Parade of the Applicant has not been conducted providing any sanctity for
his identification as contemplated under Section 9 of the Indian Evidence
Act, 1872. He submitted that, the identity of the Applicant was tried to be
established on the basis of photograph, when the Applicant was in custody.
He submitted that, the alleged eyewitnesses i.e. PW No.6 and PW No.14
have propounded unreasonable theories about the personal identification of
the Applicant/Accused. That, the trial Court has relied upon on the said
evidence which is without any corroboration. He submitted that, the trial
Court has committed an error in relying on the photo identification of the
Applicant in C.B.I. office, which is contrary to the settled principles of law.
That, the firearm used in the present crime has not been recovered from
any of the accused persons. That, the alleged weapon used in the present
crime was seized by the Assistant Commissioner of Police, Crime Branch,
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Thane, in Crime No.620 of 2013, registered with Mumbra Police Station at
the instance of accused Mr. Nagori and Mr. Khandelwal on 20 th August,
2013, and the same is shown to have been used in the present crime. He
submitted that, the ballistic expert has not been examined by the
prosecution. That, the two important Officers who had taken part in the
investigation were not allowed to enter the witness box merely at the
whims and fancies of the prosecution. He submitted that, the identity of the
Applicant is seriously doubted. He therefore prayed that, the Applicant be
released on bail during the pendency of Appeal.
8) Mr. Munde, learned Special P.P. appearing for Respondent No.2,
C.B.I. submitted that, Mr. Kamble (PW No.6) and Mr. Kelkar (PW No.14)
are the eyewitnesses in the present crime. That, the said two witness have
seen the Applicant and co-accused shooting from a firearm on the person of
Dr. Dabholkar. He submitted that, the Accused No.2 Mr. Sachin Ambure, has
given an extra-judicial confession to Mr. Somnath Dhyade (PW No.10).
Mr.Munde, fairly conceded to the fact that, there is no recovery of weapon
in the present crime. He submitted that, the identification of accused by
showing his photographs is not hit by the provisions of Cr.P.C.. He submitted
that, identification of the accused by showing him photographs is not a
substantive piece of evidence. It is only by virtue of Section 9 of the Indian
Evidence Act, the same i.e. the act of identification becomes admissible in
Court. He submitted that, even if the Test Identification of the Applicant is
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conducted by showing photographs, no prejudice is caused to the case of
prosecution. Mr. Munde, submitted that, there is no recovery of weapon
used in the present crime cannot be a ground to disbelieve the version of
the eyewitnesses. The recovery of the weapon used in the commission of an
offence is not a necessary criteria to convict the accused, if there is a direct
evidence in the form of eyewitness is available. He submitted that,
identification of Applicant by the eyewitnesses in the Court is substantive
piece of evidence.
In support of his contentions he relied on following decisions :-
i) Umar Abdul Sakoor Sorathia Vs. Intelligence Officer,
Narcotic Control Bureau, reported in (2000) 1 SCC 138.
ii) Siddhartha Vashisht Alias Manu Sharma Vs. State (NCT
Delhi), reported in (2010) 6 SCC 1.
iii) State Through the Inspector of Police Vs. Laly @
Manikandan & Another Etc. reported in AIR 2022 SC 5034.
8.1) He submitted that, the trial Court has rightly taken into
consideration the evidence of PW Nos.6 and 14 while convicting the
Applicant. He therefore prayed that, the Application may be rejected.
9) Mr. Shukla, learned counsel appearing for the intervenor
vehemently opposed the Application. He submitted that, the evidence of
Mr.Navnath Rangat, (PW No.3), the informant Police Officer; Mr. Kiran
Kamble (PW No.6) and Mr. Vinay Kelkar (PW No.14) is reliable. He
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submitted that, PW Nos.6 and 14 are the eyewitness to the incident and
their presence at the seen of offence cannot be doubted. He submitted that,
as per the version of PW No.14, initially the sketch of the suspect was
drawn. That, after the arrest of Applicant on 3 rd September, 2018, his
identity has been established initially by showing the photograph to the said
witnesses. That, the said two witnesses have identified the Applicant in
Court as the assailant of the deceased. That, the identification of Applicant
in the Court by the said two witnesses is a substantive piece of evidence. He
submitted that, even otherwise Photo Identification and Test Identification
Parade are only aids in the investigation and do not form substantive
evidence. The substantive evidence is the evidence in Court on oath. He
submitted that, mere absence of Test Identification Parade would not, ipso
facto, render the prosecution case to be false or unsustainable in law. He
submitted that, in the matter of appreciation of evidence of witnesses, it is
not the number of witnesses, but the quality of their evidence which is
important, as there is no requirement in the law of evidence stating that, a
particular number of witnesses must be examined in order to prove or
disprove a fact. That, the legal system has laid emphasis on the value
provided by each witness, as opposed to the multiplicity or plurality of
witnesses. He submitted that, at the time of considering an application
under Section 389 of Cr.P.C. the Court has to undertake the exercise to
ascertain whether convict has fair chances of acquittal and what is to be
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looked into is something palpable. That, to put it in other words, something
which is very apparent or a gross on the face of record, on the basis of
which, the Court can arrive at a prima facie satisfaction that, the conviction
may not be sustainable.
In support of his contentions he relied upon on the following decisions :-
i) Mullagiri Vajram & Others Vs. State of Andhra Pradesh,
reported in 1993 Supp (2) SCC 198 : 1993 SCC (Cri) 496.
ii) Malkhansingh And Others Vs. State of M.P., reported in
(2003) 5 SCC 746.
iii) Rabindra Kumar Pal Alias Dara Singh Vs. Republic of
India, reported in (2011) 2 SCC 490.
iv) R. Shaji Vs. State of Kerala, reported in (2013) 14 SCC
266.
v) Prakash Vs. State of Karnataka, reported in (2014) 12
SCC 133.
vi) Omprakash Sahni Vs. Jai Shankar Chaudhary & Another,
reported in (2023) 6 SCC 123.
vii) Mohd. Naushad Vs. State (Government of NCT of Delhi),
reported in (2024) 12 SCC 494.
9.1) Mr. Shukla, submitted that, there are four antecedents at the
discredit of Applicant. He therefore prayed that, the present Application
may therefore be rejected.
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KSG 75-IA-312-2025.doc 10) The crucial point involved in the present Application is the
identity of the Applicant by the prime witnesses of prosecution namely Mr.
Kiran Kamble (PW No.6) and Mr. Vinay Kelkar (PW No.14).
11) PW No.6 in his testimony has stated that, on 20 th August, 2013,
he was serving as Sweeper in Pune Municipal Corporation. On 20 th August,
2013, he was deputed on Sambhaji Udyan Kothi for brooming the road
between Onkareshwar Temple to Khati Vadapao place. That, on 20 th August,
2013, he came for his work at the said place at about 06:30 a.m. That, he
was doing the brooming work. After his work, he sat on the road divider.
His co-worker Meerabai was brooming at the road divider at about 07:15
a.m, when he heard a noise like fire cracker. His attention was drawn
towards the noise. He saw that, two boys were firing on an aged person.
The said person fell down. The said boys were running towards the side of
police chowky. That, those two boys went towards a motorcycle which was
parked beside the police chowky and fled away on the motorcycle. Out of
two boys one boy was highted whereas the another was somewhat of short
height. He has identified the Applicant in the Court. That, after the incident
he rushed towards the aged person who was lying down on the road. The
said person was lying in the pool of blood. Thereafter, he and Meerabai
went for taking tea. Thereafter he went to Modern Colony to complete his
remaining work. His statement was thereafter recorded by Police Officer Mr.
Phuge.
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KSG 75-IA-312-2025.doc 11.1) That, he was also called by C.B.I. Officer Mr. Singh. He has
seen the photographs and identified those persons as he had seen them on
the bridge while shooting the aged person. The said photographs are at
Exhibit Nos. 331 to 334.
11.2) In his cross-examination, PW No.6 has admitted that, he used
to take tea at same place on completion of their work on the bridge. The
said hotel is situated at some distance from police chowky on the south
side. An omission that, ‘he had stated to police that, on hearing noise like
fire crackers his attention was drawn towards the noise. I had also stated
that, out of the two boys one was highted and another was somewhat of
short height’ has been brought on record. That, the time gap between the
bullets was one to two minutes or one to two seconds.
11.3) It be noted here that, the trial Court has noted that, at this
juncture this witness is not clear between the seconds and minutes.
11.4) That, he had identified the photographs of palm size. Those
were photographs of two persons, two each. That, he cannot not see the
identification marks on the face of those persons. That, there was mustache
to both of them. That, the bike of the two boys who were running was
about 60 feet away from the deceased. That, he had seen those boys from
the distance of about 15 feet. That, the police had shown him sketches of
persons in addition to the sketch drawn as per description by him. This
witness has admitted that, he did not remember whether the sketch was
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shown to him on 2nd September, 2013. This witness was shown a sketch in
file No.1 at page No.40. He has stated that, the same sketch is not similar to
the one which was drawn as per the description given by him. The said
sketch is at Exhibit.345.
11.5) It be noted here that, the statement of this witness under
Section 164(5) of Cr.P.C. was recorded on 22 nd April, 2019, by the learned
Judicial Magistrate First Class, Pune, is at Exhibit No.335. In paragraph
No.8 thereof, this witness has stated that, he was thereafter called at the
office of Commissioner of Police, Pune. There the police inquired with him
regarding the said incidence. At that time he had told the police that, he
had seen nothing of the said incident.
12) PW No.14 in his testimony has deposed that, the Shaniwar Peth
Police Chowky was in front of his house. On 20 th August, 2013, after
morning walk he returned home at about 07:00 a.m.. After relaxing he
went to the balcony to remove his Vest (Baniyan). At that time he saw an
aged person proceeding on Balgandharva Bridge. Two other persons were
walking behind him. At the end of the bridge, in front of his house there is
Onkareshwar Temple and on the another end of the bridge there is
Balgandharva Theatre. That, on seeing the aged person walking, within one to
two and half minutes he heard noise of bullet shots. He looked at the place
from where he heard the noise and saw the aged person was lying on the
ground. That, the two boys following him were running on the reverse
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direction and they came towards his house. At that time, he had seen 2-3
monkeys passing from the railing of the bridge. That, the two boys to whom
he saw running, went towards the police chowky and stopped there. Those
two boys took out a motorcycle besides the police chowky and they ran
away towards Ramanbag School, passing from his balcony. At that time he
saw the number of the motorcycle which was 7756. He described those two
boys as between the age group of 25 to 30 with whitesh complexation.
That, one of the said boy was having a black coloured sack bag on his back.
That, within sometime people gathered at the spot. Police also arrived.
There was a lady police and two gents. The PW No.14 went there. The aged
person was lying on the ground. He told the lady police about the incident
and thereafter he went to his office. That, thereafter he was called by police
Officer Mr.Bhamre. He narrated the incident to him. His statement was
recorded on the same day by police Officer Mr. Joshi. This witness has
identified the assailants as the persons present in the Court. That, on 27 th
December, 2018, the C.B.I. Officer Mr. Singh, called him at C.B.I. Office at
Khadki. He showed some photographs to this witness. That, the
photographs were spread on table. Mr. Singh, asked him as to whether
there are photographs of the persons to whom he had seen at the time of
incident. There were 10 to 12 photographs on the table. From those
photographs PW No.14 had taken out 2 photographs of 2 different persons.
On being asked by Mr.Singh, he told him that, the faces seen in the
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photographs were matching to the extent of 80 to 85%. The said
photographs are at Exhibit Nos.460 and 461.
12.1) In his cross-examination, he has admitted that, the sketches of
the persons were drawn by police firstly on the day of incident with his
help. That, he did not remember as to whether one more sketch was drawn
as per the details given by him on 30th January, 2015. That, he alongwith
Mr. Meenanath, were called at C.B.I. Office, Khadki approximately after one
year of the incident. At that time, some sketches were shown to him and
their signatures were obtained on the back side of those papers. The sketch
is at Exhibit No.475. That, the sketch has resemblance of 70 to 80% . This
witness has admitted that, the sketch was not drawn as per the description
given by him. That, on 20th August, 2013, a sketch was drawn as per the
description given by him of the person who was driving vehicle. This
witness has given an admission that, it did not so happen that, during
inquiry by C.B.I. Officer he told that, the person in the sketch at Exhibit
No.475 was driving the vehicle and he passed from his house. The portion
marked ‘A’ from his statement given to C.B.I. dated 4 th September, 2016, was
read over to him and this witness has admitted that, ‘it is incorrect.’ That,
he has spects since the year 2015-2016 for reading. That, he went to the
spot of the incident after about 20 to 25 minutes after the incident
occurred.
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KSG 75-IA-312-2025.doc 12.2) He has admitted that, when the assailants came towards him
and when they started motorcycle, he was standing at the same place in the
balcony. That, after assailants went away, he did not stop in the balcony. He
then went for bath and thereafter he went to the spot. That, he did not wait
to see whether anybody is helping the injured. He did not disclose the
incident immediately to anybody in the house. This witness has admitted
that, it would be correct to say that, after taking bath he was about to leave
for office and with that preparation he came out from house. That, it can be
said that, his behavior of not responding immediately to be happening was
incorrect. That, his office was adjoining to his house.
12.3) It be noted here that, this witness has witnessed the incident in
question while standing in his balcony from a distance of about 500 meters.
While identifying the Applicant from the photograph at Exhibit No.461, he
has stated at the end that, “I Vinay Kelkar hereby declare that assassination
incident took place 5 years ago and distance took place is too far away from
me. I declare that suspects resemble the faces of criminals, however, I
cannot be identified entirely by me”, date 27th December, 2018.
13) A bare perusal of evidence of these two witnesses would clearly
indicate that, both the witnesses are chance witnesses. Though they had
seen the ghastly assault on the deceased, both the witnesses chose to give
preference and complete their daily chores of life and thereafter leisurely
approached the police to give information. According to us, the conduct of
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these two witnesses is not of the men of common prudence and raises
doubt in the mind of the Court about their witnessing the incident.
14) There is another facet to the present case. The incident in
question has occurred on 20th August, 2013 at about 07:30 a.m. The
Applicant was arrested on 3rd September, 2018. His identity was tried to be
established through these two witnesses by showing them photographs of
the accused persons. Though the investigating agency had every
opportunity to conduct Test Identification Parade of the Applicant, the
investigating Officer chose to establish identity of the Applicant by showing
his photographs to the witnesses when he was already in custody. PW No.6
has identified the photographs of Applicant (Exh.333) on 25 th December,
2018, whereas PW No.14 has identified the Applicant from the photograph
(Exh.461) on 27th December, 2018. As the prosecution has tried to establish
the identity of the Applicant through the said two prime witnesses by
showing them his photographs while he was already in their custody,
according to us, the said identification loses its sanctity.
15) The Hon’ble Supreme Court in the case of Prakash (supra), has
held that, an identification parade is not mandatory nor can it be claimed
by the suspect as a matter of right. That, purpose of pre-trial identification
evidence is to assure the investigating agency that the investigation is going
on in the right direction and to provide corroboration of the evidence to be
given by the witness or victim later in Court at the trial. That, if the suspect
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is a complete stranger to the witness or victim, then an identification
parade is desirable unless the suspect has been seen by the witness or
victim for some length of time.
16) The Applicant is behind bars since 3 rd September, 2018 and at
pretrial and post conviction stage has undergone more than seven and half
years in incarceration. Taking into consideration the pendency of Appeals,
the likelihood of taking up Appeal of the Applicant for final hearing in near
future is remote.
17) After taking into consideration the over all view of the
Application, we are of the opinion that, during the pendency of his Appeal,
the substantive sentence imposed upon him can be suspended and the
Applicant be released on bail.
17.1) Hence, the following Order :-
i) During the pendency of Appeal preferred by the
Applicant, the substantive sentence imposed upon the
Applicant vide Judgment and Order dated 10th May,
2024, passed by the learned Additional Sessions Judge,
Pune in Sessions Case No.706 of 2016 (Exh No.670), is
suspended and the Applicant be released on bail on his
furnishing PR bond of Rs.50,000/- with one or two local
sureties in the like amount.
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ii) Before his release from jail, the Applicant shall give his
prospective residential address and the mobile and/or
landline number on which he or his any close relative
can be contacted.
iii) After his release from jail, the Applicant shall attend the
Deccan Police Station, Pune City, on every first Monday
of each month between 10.00 a.m. and 1.00 p.m.
initially for a period of one year and thereafter on every
first Monday between 10.00 a.m. and 1.00 p.m. of every
third calender month i.e. four times in a year, till the
disposal of Appeal.
iv) In case of two consecutive defaults in complying with
the aforesaid conditions, the prosecution is at liberty to
file application for cancellation of bail.
18) Application is allowed in the aforesaid terms.
(RANJITSINHA RAJA BHONSALE, J.) (A.S. GADKARI, J.)
19) After this Order is pronounced, learned counsel for the
Intervener requested this Court to stay the effect and implementation of the
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present Order to enable him to test its correctness before the Hon’ble
Supreme Court. As we have expressed doubt about the identity of the
Applicant as one of the assailants, in our Order the said prayer is rejected.
(RANJITSINHA RAJA BHONSALE, J.) (A.S. GADKARI, J.)
Digitally
signed by
KIRAN
KIRAN SANJAY
SANJAY GHUGE
GHUGE Date:
2026.04.29
15:44:43
+053018/18
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