AAKASH GANESHBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule returnable forthwith. Learned APP Mr. Dhawan Jayswal waives service of notice of rule for and on behalf of the respondent-State and Mr. Kumar Trivedi waives service of notice of rule for and on behalf of the respondent No.1.

(2.) The present application is filed under Sec. 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.I-11205035230524 of 2023 registered with the Nakhatrana Police Station, Kachchh West Bhuj of the offence punishable under Ss. 306, 389, 120B, 34 and 201 of IPC.

(3.) Learned senior advocate Mr. Jal Unwalla assisted by learned advocate Mr. Darshan Varandani appearing for the applicant submits that the present applicant-accused was arrested on 2/1/2024 and since then he is in jail. He also submits that in the present case, the investigation has already been concluded and the charge-sheet has also been filed. Learned senior advocate Mr. Unwalla further submits that the first information report has been filed against total nine persons wherein the applicant-accused has been shown as accused No.6. The applicant-accused is an advocate by profession. There is a delay in filing the FIR as the incident took place during the period between 4/5/2023 and 3/6/2023, for which, the FIR came to be lodged on 5/6/2023, and as such, there is a delay of two days in registering the FIR. Learned senior advocate Mr. Unwalla also submits that the entire controversy began with the registration of the FIR against the deceased by the accused No.2, due to which he committed suicide. He further submits that the allegations against the applicant-accused are that the applicant-accused, along with the other co-accused, hatched a criminal conspiracy to extort Rs.4.00 Crore from the deceased by tricking him in a honey trap, for which, the accused No.2 has been used as a tool. The accused persons succeeded in their attempt and an FIR under Sec. 376 of the IPC was lodged against the deceased, due to which, apprehending defamation in the Society, the deceased committed suicide. Learned senior advocate Mr. Unwalla submits that during the course of investigation of the FIR filed by the accused No.2 against the deceased, statement of the complainant was recorded wherein she has described the entire sequence of events of the incident in a very graphical manner and what was stated by the accused No.2 in the said statement, has been picked and pasted in the impugned FIR and, therefore, reliance cannot be placed upon the said version of narration of facts as it is based upon the confessional statement of the co-accused, and as such, the basic foundation of the registration of the complaint itself is not sustainable. The only allegation levelled against the applicant-accused is that he has provided certain guidance to the accused No.2 in the commission of the crime. Learned senior advocate Mr. Unwalla submits that the applicantaccused has been implicated in the present offence on the basis of the confessional statement of the accused No.2 and the impugned FIR is also based upon the same set of facts as narrated by the accused No.2 in her confessional statement and, therefore, when it is a settled legal position that the confessional statement made by any accused itself is not admissible in evidence, then the FIR based upon the same cannot be sustained in any manner. Learned advocate Mr. Unwalla submits that the applicant-accused never met the deceased nor had ever talked with him. There is no Call Data Record produced by the investigating agency showing any conversation of the applicant-accused along with the deceased.