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2018 DIGILAW 495 (GUJ)

JAY JAYESHBHAI PANCHAL v. STATE OF GUJARAT

2018-02-14

J.B.PARDIWALA

body2018
JUDGMENT : 1. By this application under section 439 of the Cr.P.C., 1973, the applicant-original accused prays for regular bail in connection with the first information report registered vide IC. R. No.109 of 2017 with the Nadiad Town Police Station for the offence punishable under sections 306 and 376, (2)(J) of the Indian Penal Code and sections 3(1)(R)(W) and 3(2)(5-A) of the Atrocities Act. On completion of the investigation, chargesheet came to be filed and the case, on being committed to the court of sessions, ultimately, came to be registered as the Special Atrocity Case No.25 of 2017 in the court of the learned 3rd Addl. Sessions Judge, Nadiad. 2. The case of the prosecution may be summarized as under; 2.1 The first information report came to be lodged by the father of the deceased. The deceased was pursuing her course of nursing at Nadiad. She was residing at the Nadiad Girls Hostel. The case of the prosecution is that the daughter of the first informant committed suicide by jumping from the 9th floor of a residential apartment. It is alleged in the first information report that the applicant-accused used to ravish the deceased on false promises that he would get married with her. It is also the case of the prosecution that on the date of the incident, some quarrel ensued between the applicant-accused and the deceased, which might have resulted into a scuffle between the two having regard to the injuries which were found on the body of the deceased and upon such instigation at the end of the applicant-accused, the deceased took the extreme step of committing suicide by jumping from the 9th floor of the apartment. The Sessions Court declined to release the applicant-accused on bail. Being dissatisfied with the order passed by the Sessions Court at Nadiad, the applicant is here before this Court with this application, praying for bail. The Sessions Court declined to release the applicant-accused on bail. Being dissatisfied with the order passed by the Sessions Court at Nadiad, the applicant is here before this Court with this application, praying for bail. 2.2 The Trial Court, while declining to release the applicant on bail, observed in its impugned order, as under; “Having heard the learned counsel appearing for both the sides and considering the evidence produced on record, the papers of the charge-sheet and the statement of the Investigating Officer, it appears that an FIR came to be lodged against the applicant-accused herein being I-C.R. No.109 of 2017 with the Nadiad Town Police Station for the offence punishable under sections 306 and 376(2)(J) of the IPC and sections 3(1)(R)(W) and 3(2) (5-A) of the Atrocities Act. On reading the papers of the investigation and the statements of the different witnesses, it appears that the accused, namely, Jay had a love affair with the deceased Kalpana and to maintain privacy in their relation, since last two months, a flat, i.e. Karmaveer Samrajya Flat, Block No.9, Flat No.901 was taken on rent of Rs.5,000/- by the accused. The said flat was of the ownership of one Navin R. Patel and was being taken care of by one Niravkumar. On 10.09.2017, in the evening, the deceased, accused and his friend met on the said flat and, thereafter, gone for some snacks and after returning in the parking of the flat, Chetan left the place. Thereafter, the deceased and the accused stayed on the said flat for night during which due to one phone call from Rohit Karamsinh Maheshwari, the accused started quarreling with the deceased and told her that he would not marry her and would keep her as mistress. After perusing the papers of the investigation, prima facie, it appears that after realizing the intention of the accused and the fact that the accused ravished her by giving false promises had made a physical relations with her, she got mentally disturbed and put an end to her life. If the statement of Rohit dated 17.10.2017 is taken into consideration, in the last paragraph, he has stated that in the morning, he received a call from Kalpana but as he was in Pooja the same was not answered by him. If the statement of Rohit dated 17.10.2017 is taken into consideration, in the last paragraph, he has stated that in the morning, he received a call from Kalpana but as he was in Pooja the same was not answered by him. Thereafter, in the evening, again he received a call from Kalpana but due to network problem and as he was on the way towards Nakhatrana, he told her that he will call her later. At about 11:15 in the night, he called Kalpana but the phone was switched off. He again called her on the other mobile, but the same got disconnected, and in the second minute, she called him but as she did not speak anything, he disconnected the phone. Immediately, Kalpana called him again and on being asked her as to what happen, she appears to be scared and told him that she was with friend. Suddenly, Jay snatched the phone and told him that I am Jay and started abusing him and also told him that if he ever call on this number, he will kill him and disconnected the phone. Taking into consideration the statement of Rohit, it appears that on the date of the incident, both, accused and the deceased were present on the flat. It also appears that some quarrel might take place between the both, in the result of which, the deceased might take the extreme step of committing suicide. Thus, upon perusal of the papers of the investigation, there appears to be a prima facie case against the accused and looking to the seriousness of the offence and the fact that there is a prima facie case against the accused, it does not appears to be appropriate to exercise discretion in favour of the accused to release him on bail and, therefore, the present application deserves to be dismissed. Hence the following order is passed, dismissing the application.” 3. Mr. Panchal, the learned counsel appearing for the applicant-accused submitted that having regard to the evidence on record, it is not in dispute that the deceased was in a live-in-relationship with the applicant accused. Mr. Panchal submitted that although the applicant had made himself very clear that he was not interested in getting married to the deceased and was inclined to get married to one another girl, yet the deceased continued with such live-in-relationship with the applicant-accused. Mr. Panchal submitted that although the applicant had made himself very clear that he was not interested in getting married to the deceased and was inclined to get married to one another girl, yet the deceased continued with such live-in-relationship with the applicant-accused. In such circumstances, according to Mr. Panchal, no case worth the name could be said to have been made out so far as the offence under section 376 of the IPC is concerned. Mr. Panchal submitted that there is a clear distinction between rape and consensual sex. Mr. Panchal also submitted that it cannot be said, by any stretch of imagination, that the applicant-accused abetted the commission of suicide within the meaning of section 107 of the IPC punishable under section 306 of the IPC. 4. In the last, it was submitted that as the investigation is over and the charge-sheet has been filed, subject to any terms and conditions, the applicant may be released on bail. 5. On the other hand, this application has been vehemently opposed by Ms. Thakkar, the learned APP appearing for the State. Ms. Thakkar, the learned APP, submitted that having regard to the materials on record, there is more than a prima facie case against the applicant-accused. Having regard to the nature of the allegations, the case is not one, in which, the applicant-accused should be released on bail pending the trial. Ms. Thakkar made available, for the perusal of this Court, the statements of the witnesses more particularly the statement of one Rohit Karamshi Gopalbhai Maheshwari. The learned APP submitted that the Trial Court has framed the charge and the recording of the evidence is to commence in recent future. The learned APP also pointed out that the witness summons has been issued and the first informant, i.e., the father of the deceased would be entering the box at the earliest. In such circumstances, according to the learned APP, this application deserves to be rejected. Ms. Thakkar submitted that the flat situated on the 9th floor of the apartment was taken on rent. The flat is owned by one doctor. The Panchnama of the place of offence, i.e., the flat would indicate that the condoms containing semen were recovered. The sample of semen, collected from the flat, matches with the blood group of the applicant-accused. Ms. Thakkar submitted that the flat situated on the 9th floor of the apartment was taken on rent. The flat is owned by one doctor. The Panchnama of the place of offence, i.e., the flat would indicate that the condoms containing semen were recovered. The sample of semen, collected from the flat, matches with the blood group of the applicant-accused. The learned APP further pointed out that over a period of time, the deceased was being ravished by the applicant-accused in the said flat. He had no intentions to get married to her and only to satisfy his sexual lust, he was maintaining relations with the deceased. 6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should order the release of the applicant-accused on bail pending trial. 7. Since, this is a bail application and the trial is on the verge of commencement, I should not discuss much in detail as the appreciation of evidence, in any form, at this stage, may cause prejudice to the applicant-accused. I am confining my reasonings only to indicate that there is a prima facie case against the applicant-accused and having regard to the nature of the allegations, I am not inclined to exercise my discretion in favour of the applicant-accused. I am conscious of the fact that mere prima facie case, by itself, is no reason to deny bail, but at the same time, I must not overlook the fact that the charge against the applicant-accused is one of rape and abetment to the commission of suicide. A young girl put an end to her life by jumping from the 9th floor of the apartment. I have gone through the statement of Rohit Karamshi Gopalbhai Maheshwari dated 17th October, 2017. I would not like to discuss the same in details as it might hurt the applicant in some way or the other. A young girl put an end to her life by jumping from the 9th floor of the apartment. I have gone through the statement of Rohit Karamshi Gopalbhai Maheshwari dated 17th October, 2017. I would not like to discuss the same in details as it might hurt the applicant in some way or the other. I may only say that whether the case at hand is one of passive submission in the face of psychological pressure exerted or the allurements alleged to have been made by the accused or was it a conscious decision on the part of the deceased knowing fully the nature and consequences of the act she was asked to indulge in, is a question of fact, which may be looked into by the Trial Court. The Trial Court will be in a better position to answer these questions on the basis of the evidence that may be led by the parties in the course of the trial. Whether the tacit consent given by the victim was the result of a misconception of fact created in her mind as to the intention of the accused to marry her is a question of fact and can be well appreciated by the Trial Court only after the evidence is led by the prosecution and the defence. The materials on record further indicate that on the date of the incident, i.e., at the time when the deceased jumped from the 9th floor of the residential apartment, the applicant-accused was drunk. It appears that in the history before the doctor, he has stated so. Be that as it may, when the charge has been framed and the recording of the evidence is to commence shortly, I should not exercise my discretion. The possibility of tampering with the prosecution witnesses also should not be ruled out at this stage. 8. In the result, this application fails and is hereby rejected. Let me clarify and it goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of the final opinion in the main matter. The Trial Court shall now proceed with the recording of the evidence at the earliest and see to it that the trial is completed within a period of two months. The Trial Court shall now proceed with the recording of the evidence at the earliest and see to it that the trial is completed within a period of two months. The Trial Court shall make all possible endevour to see that the trial is conducted on day to day basis. Rule is discharged.