[Cites 20, Cited by 0]

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.

 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

KSG 75-IA-312-2025.doc

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

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.

 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.

 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

KSG 75-IA-312-2025.doc

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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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