Gujarat High Court
Thakkar Maheshbhai Rameshbhai vs State Of Gujarat on 11 October, 2023
Bench: Divyesh A. Joshi
NEUTRAL CITATION
R/CR.MA/9477/2023 ORDER DATED: 11/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
CHARGESHEET) NO. 9477 of 2023
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THAKKAR MAHESHBHAI RAMESHBHAI
Versus
STATE OF GUJARAT
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Appearance:
SAN ASSOCIATES LLP(8655) for the Applicant(s) No. 1
MR SIDDHARTH H DAVE(5306) for the Respondent(s) No. 1
MR. HARDIK SONI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 11/10/2023
ORAL ORDER
1. The present application is filed under Section 439 of the
Code of Criminal Procedure, 1973, for regular bail in
connection with the FIR being No.11217019230091 of 2023
registered with the Patan City 'A' Division Police Station, Dist:
Patan of the offence punishable under Sections 306, 420 and
506(2) of the Indian Penal Code.
2. The case of the prosecution may be summarized as
under;
2.1 The present applicant accused developed a friendship
with the wife of the complainant, namely, Dikshitaben through
Instagram. Thereafter, they both started talking with each
other and they were also frequently meeting with each other at
the gym where the wife of the complainant was going for doing
the gym. It is also alleged that under the pretext of said
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friendship, the applicant-accused demanded some ornaments
from the deceased wife stating that he has his business at
Ahmedabad and he has incurred a huge loss due to which he is
facing serious financial crunches. Keeping trust upon the say of
the applicant-accused and with a view to help him to come out
from the financial crisis, the deceased, i.e, the wife of the
complainant gave him some gold and silver ornaments which
she took out from the locker of her home without even
informing her husband, i.e, the complainant herein.
2.2 It is further alleged that the complainant came to know
about the same when the family members of the complainant
were going to attend one function. The complainant got
shocked when he did not find the ornaments in the locker.
Therefore, the complainant inquired from her wife about the
same, upon which, the deceased wife told him that she has
given the said ornaments to one Thakkar Maheshbhai
Rameshbhai, i.e,the present applicant as she befriended with
him some time ago. She also told the complainant that the said
Maheshbhai promised her to return the said ornaments within
one month.
2.3 After the said incident, as the applicant-accused did not
return her ornaments within the given time, the wife of the
complainant asked him to return all her ornaments as
promised by him. However, the present-applicant accused
took her in confidence and, thereafter, they both developed
physical relationship with consent, however, during the said
period, the present applicant-accused took indecent photos of
her and, thereafter, started demanding more and more money
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from her under one or the other pretext. It is also alleged that
under such pressure, the wife of the complainant gave him
around 67 Tolas of gold and 4.5 kg of silver, which the present
applicant-accused has never returned.
2.4 Thereafter, the complainant herein made an application
to the concerned police station in this regard and also tried to
contact the present-applicant accused, however, the applicant
did not bother to even meet him. Thereafter, one day, the wife
of the complainant disclosed all the facts before the family
members and told them that one Mahesh Thakkar, i.e, the
present applicant-accused has taken her indecent photos and
is demanding money from her by blackmailing her and he has
also threatened to kill her. Therefore, as she was afraid of
being infamous in the society and bad name to the family, she
gave him the ornaments, however, subsequently she came to
know that the present applicant-accused was habitual of
betting and has mortgaged certain ornaments with Hira
Jewellers.
2.5 Thus, being under constant pressure and feeling cheated,
the wife of the complainant committed suicide on 17.02.2023
and, therefore, the impugned complaint came to be lodged by
the complainant against the present applicant-accused. Hence,
the present petition.
3. Learned advocate appearing on behalf of the applicant
has submitted that the present applicant accused is innocent
and has been falsely implicated in the present offence.
Learned advocate for the applicant has further submitted that
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the complaint came to be lodged on 17.02.2023 and the
applicant was arrested on 21.02.2023 and since then he is in
judicial custody. Learned advocate for the applicant has also
submitted that the deceased, i.e, the wife of the complainant
voluntarily entered into the relationship with the applicant-
accused. She was an adult and matured married woman.
Learned advocate for the applicant has further submitted that
the applicant-accused did not force her to enter into the
physical relationship with him. It was a consensual relationship
between them. Learned advocate for the applicant has
submitted that the applicant-accused has not committed any
act which compel the deceased to commit suicide. It might be
the fear of social stigma and ill-fame that was weighed upon
her to take such a extreme step to commit suicide. Thus, there
cannot be said to be any kind of abetment on the part of the
present applicant-accused. Learned advocate for the applicant
has further submitted that even the suicide note does not
speak about torture or ill-treatment or even threat at the
hands of the present applicant which might have compelled
the deceased to commit suicide. Learned advocate for the
applicant has also submitted that the said relationship was
purely consensual and there is nothing on record to show that
there was any kind of force, coercion or threat on the part of
the present applicant-accused that might have compelled the
deceased to commit suicide.
4. Learned advocate appearing for the applicant has
submitted that assuming for a moment, for the sake of
argument, that the applicant-accused has come connection in
the present offence, but looking to the allegations made in the
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complaint, the same does not constitute the offence under
Section 306 against the present applicant-accused in any
manner. The act committed by the applicant-accused can be
said to be of cheating and not an abetment to commit suicide.
Learned advocate for the applicant has further submitted that
Section 107 of the IPC defines abetment. It says that a person
abets the doing of a thing if he firstly, instigates any person to
do that thing; or secondly, engages with one or more other
person or persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance of that
conspiracy and in order to the doing of that thing, or thirdly,
intentionally aids, by any act or illegal omission, the doing of
that thing. Learned advocate for the applicant has submitted
that here in the present case, there was no intention on the
part of the applicant-accused or any conspiracy hatched by the
applicant to do the act which compelled the deceased to
commit suicide. It was a consensual relationship between the
applicant and the deceased and the deceased voluntarily gave
him the ornaments. It might be the pressure from the family
her in-laws which compelled her to take such a drastic step
and the applicant-accused has nothing to do with the said
crime. At the most, the it can be said that the applicant-
accused has committed an offence of cheating. In support of
the aforesaid argument, learned advocate appearing for the
applicant has put reliance upon the decision in the case of
Sanju vs. State of Madhya Pradesh, reported in (2002) 5
SCC 371.
5. Learned advocate for the applicant has submitted that to
constitute abetment, the intention and involvement of the
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accused to aid or instigate the commission of suicide is
imperative. To constitute the offence of abetment, the act
committed by the accused ought to have been continued one
till the time she committed suicide. Here in the present case,
the unfortunate incident had occurred on 17.02.2023, i.e,
almost after 48 hours from the moment the applicant-accused
switched off his mobile phone and, therefore, it might be the
pressure from the family members or the threat of being
defamed in the society, which compelled the deceased to
commit suicide. Learned advocate for the applicant has also
submitted that if the Hon'ble Court would make a cursory
glance upon the contents of the suicide note, then it is found
out that nowhere the deceased wife has mentioned anything
about the present applicant-accused. Even, it is stated in the
suicide note by the deceased herself that nobody is to be
blamed for the step taken by her. Moreover, no indecent
photographs of the deceased is found from the mobile phone
of the applicant-accused. Learned advocate for the applicant
has also submitted that the applicant-accused is younger than
the deceased. He is the only responsible person in his family.
In support of his submissions, learned advocate for the
applicant has put reliance upon the following case laws;
i) In the case of Gurcharan Singh vs. State of Punjab,
reported in )2017) 1 SCC 433;
ii) In the case of Arnab Manoranjan Goswami vs. State
of Maharashtra & Ors., reported in (2021) 2 SCC 427;
6. In such circumstances, referred to above, learned
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advocate for the applicant prays that there being merit in his
application, the same be allowed and the applicant-accused
may be enlarged on bail.
7. Per contra, this application has been vehemently
opposed by learned advocate Mr. Siddharth Dave appearing for
the original complainant and submitted that the present
applicant-accused is the only person behind such an extreme
step taken by the wife of the complainant. It is an admitted
position of fact that the present-applicant accused was in
illegitimate relationship with the wife of the complainant and
under the pretext of such relationship, he was frequently
demanding money from the deceased, and the deceased
either under pressure or voluntarily gave him some gold and
silver ornaments keeping trust upon the applicant-accuse that
he will return the same within one month. It might be the
consensual relationship between them, but it is apparent on
the fact of the record, that the present-applicant accused did
not return the said ornaments to the deceased-wife which she
took her behind the back of her husband. Learned advocate
Mr. Dave has further submitted that the deceased was a
married woman having two children and reputation in the
society. Learned advocate Mr. Dave has submitted that a bare
perusal of the complaint shows that the deceased came in
contact with the applicant-accused about six to eight months
ago from the date of the incident while she was going to gym.
Learned advocate Mr. Dave has submitted that the argument
canvassed by the learned advocated appearing for the
applicant that the cause for taking such a drastic step by the
wife of the complainant might be the ill-treatment or torture
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from her in-laws is baseless and made only with a view to save
the skin of the applicant-accused from the clutches of law. If
the Hon'ble Court would go through the contents of the FIR, it
would be found that after the deceased disclosed everything to
his husband and her in-laws, there was not a single allegation
made by the deceased of torturing or ill-treatment meted out
to her by her in-laws in her suicide note. It is also found out
from the complaint that the deceased had also told her in-laws
that the applicant-accused took her indecent photos and
threatened her to get it viral if the deceased would not give
him more money and, therefore, apparently the only reason for
the deceased to commit suicide is the fear in her mind of being
infamous in the society. Except this, there was no reason for
the deceased to take such a drastic step. The span of marriage
life between the complainant and the deceased was more than
ten years, and during that period, there was no ill-will between
them and there was not a single complaint against her
husband and in-laws of any nature at the instance of the
deceased during that period. They were living a happy married
life. It is after the illicit relationship developed by the applicant
with the deceased and the ornaments taken by him by
inducing the deceased which he has never returned that the
deceased started living under pressure and, ultimately,
committed a suicide. Therefore, it can be safely said that there
is a direct nexus of the applicant herein in the commission of
the said crime.
8. In such circumstances, referred to above, learned
advocate Mr. Dave prays that there being no merit in this
application the same be rejected and the applicant-accused
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may not be released on bail.
9. The learned APP Mr. Hardik Soni appearing on behalf of
the respondent-State has opposed grant of regular bail looking
to the nature and gravity of the offence. Learned APP Mr. Soni
has submitted that this is not a simple of case of extramarital
affair but is a clear cut case of blackmailing and the amount
cheated by the applicant-accused, no matter by whatever
means, is a huge amount worth Rs.50 to 60 Lakh. Learned APP
Mr. Soni has further submitted that during the course of
investigation, the Investigating Officer has recovered an
amount of Rs.3 Lakh only from the applicant-accused and
there is no traces for the rest of the money. Learned APP Mr.
Soni has also submitted that the present applicant-accused is
habitual of gambling, especially a cricket gambling and he
might lost all the money in the cricket betting which he had
obtained from the deceased by duping her. Under the
circumstances, learned APP Mr. Soni prays that this Court may
not exercise its discretion in favour of the applicant-accused by
enlarging him on bail.
10. I have heard the learned counsel appearing for the
parties and perused the record of the case.
11. Learned advocate for the applicant has primarily laid
stress on the argument that in the instant case, offence under
Section 306 IPC is not made out against the applicant.
According to him, even if the allegations made in the FIR
against the applicant are taken at their face value, it cannot be
stated that the applicant had abetted the commission of
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suicide by the deceased lady. Learned advocate has
contended that as per the FIR, the applicant had only taken
some ornaments from the deceased lady under the guise of
illicit relationship and did not return the same and this act of
the applicant cannot amount to instigation or aiding of suicide
of the deceased. The charge sheet contains the statement of
the witnesses In all such statements the witnesses have
categorically stated that the applicant was having illicit relation
with the deceased and for that reason the applicant was
demanding money from her by blackmailing her. Accordingly,
the deceased gave him some gold ornaments worth Rs.50 to
60 Lakh behind the back of her in-laws upon the promise of the
applicant to return the same within month. However, the
applicant did not return the said ornaments as promised by
him which led the husband of the deceased to know about the
same when he did not find the said ornaments in the locker.
12. Such statement if are examined in the light of law laid
down in case of (2012) 9 SCC 734 in between Praveen Pradhan
Vs. State of Uttaranchal & Anr. wherein it has been held that
the offence of abetment by instigation depends upon the
intention of the person who abets and not upon the act which
is done by the person who has abetted. The abetment may be
by instigation, conspiracy or intentional aid as provided under
Section 107 IPC. It is further been held that the instigation has
to be gathered from the circumstances of a particular case and
no straitjacket formula can be laid down to find out as to
whether in a particular case there has been instigation which
forced the person to commit suicide. In a particular case, there
may not be direct evidence in regard to instigation which may
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have direct nexus to suicide. Therefore, in a given set of
circumstances, an inference has to be drawn from the
circumstances and it is to be determined whether
circumstances had been such which in fact had created the
situation that a person felt totally cheated and committed
suicide. Therefore, case is required to be considered in the
light of the said preposition.
13. Further in the case of Praveen Pradhan Vs. State of
Uttaranchal & Anr. (supra) instigation and abetment has been
defined which reads as under:-
"15. In Chitresh Kumar Chopra v. State (Govt. of NCT of
Delhi) (2009) 16 SCC 605 this Court while dealing with
the term "instigation" held: (SCC p.611, paras 16-17)
"16.....instigation is to goad, urge forward, provoke, incite
or encourage to do 'an act.' To satisfy the requirement of
'instigation', though it is not necessary that actual words
must be used to that effect or what constitutes
'instigation' must necessarily and specifically be
suggestive of the consequence. Yet a reasonable
certainty to incite the consequence must be capable of
being spelt out. Where the accused had, by his acts or
omission or by a continued course of conduct, created
such circumstances that the deceased was left with no
other option except to commit suicide, in which case, an
'instigation' may have to be inferred. A word uttered in a
fit of anger or emotion without intending the
consequences to actually follow, cannot be said to be
instigation.
17. Thus, to constitute 'instigation', a person who
instigates another has to provoke, incite, urge or
encourage the doing of an act by the other by 'goading'
or 'urging forward'. The dictionary meaning of the word
'goad' is a thing that stimulates someone into action;
provoke to action or reaction;...... to keep irritating or
annoying somebody until he reacts....."
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14. In the given set of facts, therefore if statement of
relatives of the deceased are examined the statement which
are on record as of now it would reveal that circumstances
created by the applicant, who was having an illicit relationship
with the deceased which forced the deceased to commit
suicide. Therefore the abetment or instigation whether existed
or not has to be further clarified during course of evidence.
Statements as now exist point out circumstances were created
by the applicant to form a prima facie opinion.
15. It is an admitted position of fact that there was an illicit
relationship between the applicant-accused and the deceased
and under the guise of the said relationship, the applicant-
accused duped the deceased and took 67 tolas of gold and 405
kgs of silver worth Rs.50 to 60 lakh and has never returned the
same. The deceased disclosed all the facts to her husband and
her in-laws and, thereafter, she herself and her husband tried
to contact the applicant-accused but he did not come to meet
them. The deceased also tried to contact him on mobile phone
and called him to meet her, however, he declined to meet her
and subsequently switched of his phone which might cause
mental torture to the deceased. It is also alleged that the
applicant-accused had developed physical relationship with the
decease and during that period, he had also taken some
indecent photographs of the deceased which is also a very
serious allegation.
16. In Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi),
the Supreme Court reiterated the legal jurisprudence that was
laid down in its earlier judgment in the case of Ramesh Kumar
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v. the State of Chhattisgarh and held that where the accused
by his acts or continuous course of behaviour creates such
circumstances that the deceased person was left with no other
substitute except the option to commit suicide, an instigation
may be indirect. In order to prove that the accused abetted
commission of suicide by a person, it has to be recognized
that:
* The accused kept on frustrating or annoying the
deceased by words, deeds or willful omission or conduct which
may even be an unruly stillness until the deceased responded
or pushed or forced the deceased by his deeds, words or willful
oversight or behaviour to make the deceased move forward
more rapidly in a forward direction; and
* That the accused had the purpose of aggravating urge or
persuading the deceased to commit suicide while acting in the
way noted above, undoubtedly, mens rea is a necessary
element of instigation.
17. The laws are needed to be interpreted not strictly in a
confined manner. However, according to the facts and
circumstances of each case so that justice prevails. The
current definition of abetment falls short. The section covers
abetment by way of aid, instigation and conspiracy, but there
are instances where the actions of the person do not strictly
fall in these three categories but pressurize a person to
commit suicide.
18. For the foregoing reasons, this application fails and is
hereby rejected. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
