Gujarat High Court
Swapnil Bhairawnath Dudhane vs State Of Gujarat on 23 November, 2016
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/28540/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) No. 28540 of 2016
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SWAPNIL BHAIRAWNATH DUDHANE....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ============================================================= Appearance :
Mr AD SHAH, ADVOCATE for the Applicant(s) No. 1
Mr EKANT G AHUJA, ADVOCATE for the Applicant(s) No. 1 Ms ARCHANA R ACHARYA, ADVOCATE for the Respondent(s) No. 1 Mr KP RAVAL, APP for the Respondent(s) No. 1 ============================================================= CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA 23rd November 2016 CAV ORDER Rule returnable forthwith. Learned APP Mr. KP Raval appears and waives service of notice of rule for and on behalf of the respondent-State and Ms. Archana R. Acharya appears and waives service for and on behalf of the complainant. With the consent of the respective sides, the matter was heard finally on 11th and 18th day of November 2016.
This Application is preferred under Section 439 of the Code of Criminal Procedure, 1973 ["CrPC" for brevity] by the applicant-accused in FIR, being I-C.R No. 76 of 2016 Page 1 of 20 HC-NIC Page 1 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER registered with Bopal Police Station, Ahmedabad for grant of regular bail in connection with an offence punishable under Sections 306 and 114 of the Indian Penal Code, 1860 ["IPC" for brevity].
Brief facts, as narrated in the FIR are that in the night of 25th September 2016 at around 12:00 am, the complainant received a phone call from a Police Constable informing him that his son had committed suicide, and therefore, the complainant informed his friend Manmeetsingh Chabra to immediately reach at the place where his son had committed suicide. It is the say of the complainant that his son was residing with other 4 to 5 boys in a flat at Binori Sonnet Society since last two months and was working at Evolutionary Systems Private Limited, a company situated at Makarba, Ahmedabad. Thereafter, the complainant and his other relatives came to Ahmedabad on 26th September 2016 where they found deceased hanging in one of the bedrooms of Binori Sonnet Apartments. The one end of the deceased turban cloth was tied with fan hook and the second end of the cloth Page 2 of 20 HC-NIC Page 2 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER was tied to the deceased's neck and his dead body was found hanging. The police standing nearby shown them a spiral bound lying besides the dead body and on one page of that spiral bound with a blue colour marker pen, it was written "call Mum 9377156369 :: Papa 9898177760". Upon identifying the handwriting by the complainant, it was found that the same was not written by the deceased, as his son had never written a sentence using all capital letters. The complainant when looked around, saw legs of his son touching the floor of the room, as if he was standing and the dead body was slightly bent on the bed, which was besides the body. The deceased T-shirt was worn wrong way and also after noticing these two things, complainant immediately came outside the room and informed the Police to interrogate the boys staying with the complainant's son. The complainant also brought to the notice of the Police that his son had previously complained him about his fellow habitants forcibly trying to feed him non vegetarian food and alcohol. It is also averred in the complaint that these room-mates were abusing his son and making fun of the deceased religion.
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R/CR.MA/28540/2016 CAV ORDER
Whenever the complainant spoke to the deceased over phone, the complainant always asked him as to how was the situation over there now, to which his son avoided to talk about them and told the complainant that he would change the room as soon as possible and further informed the complainant that whenever the deceased was sleeping at night at that time, these boys used drag down his pant and undergarments and thereby harass him. This incident was also disclosed by the deceased to his mother some three four days back when he visited his parents at Surat. The deceased had also informed the complainant that one new boy had come to stay at their Flat and he too has joined the band of other boys in forcing the deceased to eat non vegetarian food, even knowing that the deceased do not eat such food. In this way, as per the complainant, these room-mates had caused immense harassment to his son, who was to change his room by the next month, however, due to persistent harassment, he committed suicide, and hence, the complaint.
When this matter was called out for hearing on 26th October 2016, learned APP Mr. R.C Kodekar appearing for Page 4 of 20 HC-NIC Page 4 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER the State requested this Court to adjourn the matter as the post-mortem report was yet to be received by the investigating agency and the line of investigation was also not certain, and therefore, this case was adjourned 28th October 2016 with a direction to registry to accept vakalatnama of learned advocate Ms. Archana Acharya who appears for and on behalf of the complainant. On 11th November 2016, on a request being made by learned APP, this case was further adjourned to 18th November 2016.
Heard learned senior advocate Mr. A.D Shah for Mr.E.G Ahuja, learned advocate for the applicant; learned APP Mr. KP Raval for the respondent-State and Ms. Archana Acharya, learned advocate for the respondent- complainant.
Learned counsel Mr. A.D Shah vehemently submitted that there is no material involving the present applicant in the offence even remotely, as there is no motive to commit the murder. There is no prima facie case against the present applicant for abetment to suicide, more particularly when the arrest of the applicant was made for offence punishable under Section 306 IPC. That the Page 5 of 20 HC-NIC Page 5 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER complaint was filed after six days from the date of the incident, which creates a strong doubt. That, in the complaint lodged by the father of the deceased, there is no disclosure of any ingredients of abetment. That, even after the remand sought by the Police, no material was found to suspect the murder. There is no record in respect of aid or instigation by the applicant. That, investigating officer has not filed any affidavit to that effect. That the observations made by the learned Sessions Judge while rejecting the application for bail preferred by the present applicant were erroneous and illegal. That, only allegation made in the complaint is of harassment by the room- mates on trivial issues on which no reasonable person would commit suicide. That the post mortem note prima facie discloses asphyxia due to hanging. That, nothing was found in the room which could show any disturbance in the room caused due to scuffle or resistance by the deceased in order to save his life, if it was a murderous assault. That, the applicant has been wrongly arraigned as an accused in the offence by the Police. That, the applicant is an educated youth serving SKF Technologies Page 6 of 20 HC-NIC Page 6 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER [India] Private Limited since July 2015. That, the applicant was in training at Bangalore from July 2015 to December 2015 and thereafter at Ahmedabad from training between January 2016 to June 2016 and on completion of one year training, he is now working as Assistant Manager from July 2016. That, prior to the incident, the applicant was residing at Youreg Accommodation, Bodakdev, Ahmedabad from 26th January 2016 to 23rd July 2016. That, the applicant had gone to Pune on 3rd September 2016 from Ahmedabad and returned back from Kolhapur on 11th September 2016 and thereafter he had shifted at the present residential address from 24th July 2016. That, he is not having any drinking habits and occasionally take non vegetarian meals, but since last two months due to holy months of Shravan and Ganesh Utsav, the applicant was not taking even non-vegetarian food. That the allegations made in FIR being of general nature, no inference can be drawn that the acts of the accused were intentional or aiding or instigating to commit suicide, nor can it be said or believed that a particular act of the accused resulted into abetting to suicide. That, the ingredients of offence of Page 7 of 20 HC-NIC Page 7 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER abetment under Section 107 IPC are not prima facie emerging from the facts and circumstances of the case. That, only in the month of July 2016, the applicant was confirmed in his job. That, his future career is bright and if he is denied bail and allowed to languish behind the bars for a longer period, there are chances of his losing the job. Moreover, the applicant is not likely to abscond or jump the bail or even tamper with the evidence, since there are no criminal antecedents to his discredit. In support of his arguments, learned counsel Mr. Shah placed reliance upon a decision of Apex Court rendered in case of State of Kerala & Ors. vs. Unnikrishnan Nair & Ors., reported in AIR 2015 SC 3351 and urged this Court to allow this Application and release the applicant on bail on suitable terms and conditions.
Per contra, learned APP Mr. KP Rawal appearing for the respondent-State strongly opposed the submissions made on behalf of the applicant and urged this Court to reject this application, since the investigation is in progress and chargesheet is yet to be laid before the trial Court. He pointed out that in all four accused are involved Page 8 of 20 HC-NIC Page 8 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER in the offence and out of them, only two are arrest and other two accused persons are absconding. That, on the day of the incident, deceased had forwarded an e-mail to his superior authority. That, post mortem report is now available with the prosecution and as per the report, the cause of death is shown due to hanging. That, the deceased was going to change his residence, as per the talk he had with his father. That, the investigating agency has recorded statements of witnesses from which transpires that the present applicant was applying force to the deceased to consume alcohol and eat non vegetarian food, and therefore, the deceased was under duress and committed suicide. That, from the record it transpires that there is a prima facie case against the applicant of abetting suicide, and hence, it was requested by learned APP to dismiss the present application.
Extending support to the arguments made for and on behalf of the respondent-State, learned advocate Ms. Archana Acharya vehemently submitted that the learned Addl. Sessions Judge [Special], Ahmedabad [Rural] in Criminal Misc. Application No. 1949 of 2016 has rightly Page 9 of 20 HC-NIC Page 9 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER rejected the plea for grant of bail to the applicant vide Order dated 17th October 2016. That, the line of investigation was not certain till the receipt of post mortem report by the prosecution and that now the investigation has been handed over to S.O.G, Ahmedabad. That, the name of accused viz., Swapnil and Ravindra Ganesh is shown by the complainant and there is no delay in lodging the complaint by the father of the deceased, as the incident took place on 25th September 2016 and the complaint was lodge on 1st October 2016. She pointed out to the Court that the deceased was a Gold Medalist . He completed his studies of Chartered Accountant in the month of October 2014 and has been issued a Certificate of Membership by the Institute of Chartered Accountants of India in the month of November 2014. That, after completion of his studies, the deceased started his practice as a Chartered Accountant. That, recently on 7th April 2016, one Evolutionary Systems Private Limited, Ahmedabad issued a letter offering appointment to the deceased on the post of Associate Consultant Functional - Grade A in the said company on a salary of Rs. 5,50,008/= Page 10 of 20 HC-NIC Page 10 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER per annum. That, due to his appointment in a firm at Ahmedabad, the deceased shifted initially as a Paying Guest at Makarba for about 5 - 6 months and just before one and a half month to two months prior to the date of the incident, he shifted to a Flat No. E/201, Binori Sonnet Apartments, Near Government Tubewell, Bopal, Ahmedabad and stayed alongwith the applicant and others. She submitted that the applicant and two-three other room-mates used to frequently harass and pressurize the deceased to eat non vegetarian meals and to consume liquor, though the deceased resisted against the said act, the applicant and other accused were also removing his clothes forcefully when he slept in the night. These repetitive acts of insult are sufficient to drive any one to commit suicide, and therefore, the deceased appears to have committed suicide on 25th September 2016. That, no finger print was found on the marker pen, knob of the door from inner side of the room, and therefore, it become suspicious when no stopper is applied inside the room. That, the dead body of the deceased was not hanging in air, but it was standing bent from the knee Page 11 of 20 HC-NIC Page 11 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER as if the body is taking the support of the side of bed kept in front of it, and these circumstances call for a detailed investigation. Apart from these facts, the spectacles, turban and beard dress up were intact on the body even after hanging, which also raises suspicion. Moreover, the collars of T-shirt were totally tough inside the T-Shirt neck as if the accused wanted the clear neck area to tie the knot with neck. Ms. Acharya also pointed out to this Court that in an e-mail sent by the accused to his organization on 25th September 2016 at 6:55 pm it has been stated that the project assigned to the deceased was ready and that he will start working on it from Monday. According to her, this e-mail communication itself is clear that the deceased wanted to live and was making future plans for the next working day. She, therefore, urged this court to reject the application moved by the present applicant since the investigation is in progress and two other room- mates are yet to be arrested and interrogated by the investigating agency.
This Court has cautiously analyzed the rival contentions and material available on the record. Before Page 12 of 20 HC-NIC Page 12 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER dealing with the plea raised by the applicant, this Court would like to refer to a decision of the Apex Court rendered in case of Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528, wherein it has been held in para 11 as follow :
"11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are :
[a] The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, [b] Reasonable apprehension of Page 13 of 20 HC-NIC Page 13 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER tampering with the witness or apprehension of threat to the complainant. [c] Prima facie satisfaction of the court in support of the charge."
The crux of the charge against the applicant-accused is that of forcing the deceased to consume alcohol and eat non vegetarian food. From the complaint, it transpires that the deceased and the present applicant alongwith two other room mates were staying together in a common apartment at Bopal, Ahmedabad. After the incident, on an enquiry being made by the Police, the present applicant informed that he had not done anything to the deceased of this nature and he had in fact gone out. As per the complainant, the Police officer had called FSL personnel to draw finger prints from the surrounding objects and sent the body of the deceased for post mortem. As per the complainant, deceased was staying at Makarba area of Ahmedabad before 5 to6 months and thereafter, he was staying as a paying guest. He used to visit his residence at Surat once or twice in a month. He has also informed his father some one and a half month or two months back that he was being harassed by his room-mates and Page 14 of 20 HC-NIC Page 14 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER therefore he would be shifting from the PG to a Flat as staying as paying-guest was costly and after 10 days, deceased gave address of the place of his residence at Bopal where he was staying with 4 to 5 boys. As per his statement, the boys with whom he was staying were not good and they were harassing him asking him to consume liquor and he was being forced to eat non vegetarian food and also they were cutting jokes and using improper language. His father had advised the deceased to change the room and it was also informed by the deceased that he would shift to another place as early as possible. Harassment, as alleged in the complaint was on account of drinking habit and eating of non vegetarian food and cutting of jokes based on his religion. Allegations made in the complaint against the applicant are of too a general nature. From these allegations, it cannot be inferred that such harassment would lead to committal of suicide by the deceased. It also cannot be said that present applicant intentionally aided or instigated the deceased to commit the suicide. Prima facie, these allegations being of general nature made by the room occupants, it would be difficult Page 15 of 20 HC-NIC Page 15 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER to believe that any particular act was made by the present applicant which resulted into abetment to commit suicide. Prima facie, the ingredients of the offence of abetment under Section 107 IPC are not emerging from the facts of the case. Applicant is engaged in a job as an Assistant Manager from July 2016, as urged by his learned counsel. In case of State of Kerala & Ors. vs. Unnikrishnan Nair &Ors. [Supra], the Apex Court in para-13 has observed thus :
"13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it hereinbefore. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble,contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the Court, in such a situation, there was no warrant to feel cheated."
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HC-NIC Page 16 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER Thus, from the material available on record, there is absence of abetment or instigation or intentional aiding compelling the deceased to commit suicide. Prima facie, there is no case that the applicant has played any role in any conspiracy which ultimately instigated or resulted in the commission of suicide by the deceased. The intention of the Legislature in the ratio is well clear that in order to involve a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased in such a position that he should commit suicide.
Coming to the case at hand, as discussed earlier, whatever allegations are made in the FIR in respect of forcing the deceased to consume liquor and eat non vegetarian food and that too of cutting jokes on his religion does not in any way state about any continuous conduct of harassment and in any case cannot be termed as act driving the deceased to commit suicide. The Apex Court in case of Madan Mohan Singh v. State of Page 17 of 20 HC-NIC Page 17 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER Gujarat & Anr. [Supra] clearly depicts that, "..the intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 of IPC." Therefore, mere force or asking the deceased to consume alcohol or eat non vegetarian food would not be sufficient aid or instigation to abet the deceased to commit suicide.
Therefore, for the reasons aforestated, this Application deserves to be allowed and is accordingly allowed. The applicant-accused is hereby ordered to be released on bail in connection with FIR, being I-C.R No. 76 of 2016 registered with Bopal Police Station, Ahmedabad on his executing a bond of Rs. 25,000/= [Rupees Twenty Five Thousands only] with one local surety of the like amount to the satisfaction of the trial Court, and subject to the conditions that he shall;
[a] not take undue advantage of his liberty or misuse the liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender his passport; if any, to the lower Court Page 18 of 20 HC-NIC Page 18 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] mark presence at the concerned Police Station on every alternate Sunday for a period of six months and thereafter on any day of each English Calender month till the trial is over;
[f] furnish the present residential address to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the trial Court;
The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Court concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
At the trial, the trial Court shall not be influenced by Page 19 of 20 HC-NIC Page 19 of 20 Created On Thu Nov 24 00:37:18 IST 2016 R/CR.MA/28540/2016 CAV ORDER the observations made by this Court which are of preliminary nature qua the evidence at this stage, while enlarging the applicant on bail.
Rule nisi made absolute to the aforestated extent. Direct service is permitted.
(B.N. KARIA, J.) Prakash Page 20 of 20 HC-NIC Page 20 of 20 Created On Thu Nov 24 00:37:18 IST 2016