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Gujarat High Court · body

2019 DIGILAW 10 (GUJ)

STATE OF GUJARAT v. NAVNEET VALLABHBHAI FALDU

2019-01-09

A.Y.KOGJE

body2019
JUDGMENT A Y KOGJE, J. 1. These applications are filed under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'the Code') for cancellation of bail granted to the respondent No.2. Criminal Miscellaneous Application No.10654/2018 is filed by the State whereas Criminal Miscellaneous Application No.13325/2018 is filed by the original complainant. 2. Considering the fact that the applications arise out of the same First Information Report and is against the same respondent, with the consent of the learned Advocates for the respective parties, the applications are taken up for joint hearing and disposal. 3. The applications challenge the order dated 13.04.2018 passed in Criminal Miscellaneous Application No.1763/2018 passed by the learned Additional Sessions Judge, Surat by which the respondent No.2 was ordered to be enlarged on regular bail in connection with the First Information Report bearing I-C.R. No.95/2018 registered with Amroli Police Station, Surat City for the offences punishable under Sections 366 and 376 of the Indian Penal Code, subsequently, Section 306 of the Indian Penal Code was added. 4. Learned Advocate for the applicant submits that the offence is of a serious nature and therefore, discretion ought not to have been exercised in favour of the respondent. On merits, it is submitted that the deceased victim was only 16 years at the time of the offence when the respondent lured her into the relation. It is submitted that the impugned order does not reflect that the Court has taken into consideration the mental stress which the deceased was undergoing on account of the conduct of the respondent who promised to marry her on 15.03.2018. Such promise was given on 11.03.2018 and all the time, the applicant had by giving assurance of getting married to her, had taken advantage of her and entered into a sexual relation with the deceased. Thereafter, all of a sudden on 13.03.2018, the respondent refused to marry the deceased and even stopped answering her phone calls. The attempt on part of the deceased to contact the respondent by going to the native also failed and instead, she was asked to go back by the respondent. The Court ought to have therefore, considered the stress the deceased had undergone at such a tender age while nothing is reflected to that effect in the impugned order. 5. Learned Additional Public Prosecutor Mr. The Court ought to have therefore, considered the stress the deceased had undergone at such a tender age while nothing is reflected to that effect in the impugned order. 5. Learned Additional Public Prosecutor Mr. D.M. Devnani in addition to the submission made by the learned Advocate for the applicant submits that the dying declaration is also recorded and in the dying declaration, the deceased has narrated the reason behind her taking the extreme step. 6. As against this, learned Advocate for the respondent submitted that the respondent had promised to marry the deceased on 15.03.2018. However, even before the said date arrived, the deceased committed suicide on 13.03.2018 and ultimately died on 23.03.2018. It is submitted that the applicant is still unmarried and he had no malafide intention of taking advantage of the situation. It is submitted that only on account of miscommunication that the applicant had not answered the phone calls and the deceased took the hasty step. 7. I have considered the rival submissions and perused the records of the case. The incident took place on 13.03.2018, the deceased died on 23.03.2018, the respondent came to be arrested on 17.03.2018, the chargesheet came to be filed in June 2018 and the respondent came to be enlarged on regular bail on 13.04.2018. 8. From the investigation case papers, it appears that trial has been committed and in the interregnum period, nothing untoward is reported with regard to the conduct of the respondent No.2. The Court has taken into consideration the nature of offence wherein the respondent No.2 was having an affair with the deceased and had also promised the deceased to get married on 15.03.2018. However, it appears that when the deceased got an impression that the respondent No.2 is not likely to get married to her, she felt bitter as all the while, she had entered into the relation on the basis of the assurance given by the respondent of getting married. However, as considered by the Sessions Court, when the incident took place, the deceased was aged 18 years and 6 months and was away of her well being. The Court is in agreement with the arguments advanced by the respondent that merely not answering the phone calls of the deceased, the respondent would not have apprehended that the deceased would take the ultimate step of committing suicide. 9. The Court is in agreement with the arguments advanced by the respondent that merely not answering the phone calls of the deceased, the respondent would not have apprehended that the deceased would take the ultimate step of committing suicide. 9. As submitted by the learned Additional Public Prosecutor in the case papers, the Court has found the dying declaration which gives the cause for commission of suicide and clearly attributes the same to the respondent No.2. This aspect in the impugned judgment has not been discussed by the Sessions Court. Reference is only made that the Sessions Court has perused the case papers. However, this Court is of the view that when an evidence of important nature as a dying declaration is available on the investigation record, a separate reference needs to be made to such an evidence. Such an evidence is relevant while considering the case at a prima-facie stage. However, with the passage of time and advancement in the trial proceedings, the Court at this stage does not find the same to be super winning and overwhelming circumstance to cancel the bail granted to the applicant. 10. In view of the aforesaid discussion, the applications deserve to be dismissed and are hereby dismissed. Notice is discharged in Criminal Miscellaneous Application No.1065/2018.