Allowed

Ajay Balkrushna Khedkar v. the State of Maharashtra

Bombay HC10 Dec 2014BA/2127/2014

Case brief

AI extract

What is this about?

The Bombay High Court allowed a bail application for an accused charged with dowry death and abetment to suicide. The court held that the court fee demand lacked nexus with marriage and did not attract statutory presumptions, and the material was debatable, thus warranting bail.

What did the court decide?

Application allowed; applicant released on bail on furnishing a bond of Rs.1,00,000/- with sureties and subject to standard conditions.

Ajay Balkrushna Khedkar Vs the State of Maharashtra — Dowry and Cruelty | Bombay HC (2014)

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901-BA-2127.2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE – CRIMINAL
BAIL APPLICATION NO.2127 OF 2014

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Ajay Balkrushna Khedkar.... Applicant
Vs.
The State of Maharashtra.... Respondent

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Mr. Rohan Nahar for the Applicant.
Mr. Arfan Sait, APP, for the Respondent-
State.

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Mr. Shirish Gupte, Senior Counsel i/b
Ms Racheeta Dhuru for the First Informant.

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CORAM: P.D. KODE, J.

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DATED: DECEMBER 10, 2014

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P.C:

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1.By this application, a father in-law,
i.e. charge-sheeted accused No.2 in the charge-

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sheet submitted by Yerwada Police Station, Pune
against him along with three more accused
persons - husband, i.e. accused No.1, mother
in-law, i.e. accused No.3 and maternal uncle of
accused No.1, i.e. accused No.4 – for in

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furtherance of their common intention having
committed offences under Sections 304B and 306
r/w Section 34 of the IPC prays for bail. The

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Yerwada Police Station has charge-sheeted them
accordingly as a result of investigation in
Crime No.164 of 2014, registered with said
police station upon FIR lodged by one
Chandrakant Surwase, father of the victim,
deceased Snehal, who had committed suicide on
7-4-2014 by hanging at matrimonial house. The
deceased had married accused No.1 on
10-11-2013. It is not in dispute that within
about five months after her marriage, i.e.
within seven years of her marriage, deceased
Snehal succumbed to unnatural death.

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2.Mr. Rohan Nahar, learned counsel for

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the applicant, pressed the prayer for bail by
drawing attention to certain circumstances from
the charge-sheet and urging that false case

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regarding commission of such offences by the
applicant and others is set out by the father
of the deceased, in all probability due to
grief of loss of his daughter. It is his
submission that though it is unfortunate that
Snehal having succumbed to death, there exists
no legal evidence in charge-sheet even prima
facie revealing involvement of the applicant in
commission of the offences, as alleged.

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3.Mr. Arfan Sait, learned APP, submitted
that prima facie ample material has been
collected during the course of investigation
regarding involvement of the applicant in the
offences for which he is charge-sheeted. The
learned APP by placing reliance upon Section
113B of the Evidence Act and Section 304B of
the IPC submitted that the material collected
during the course of investigation and
undisputed fact of death having occurred within

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a period of seven years from the date of
marriage raises presumption, as contemplated by
said provisions. He urged that after taking
into account fact of a young girl having high
hopes of a happy married life being required to
end her life and same being due to demand of
dowry amount of Rs.15,00,000/- and she being
subjected to cruelty, the prayer for bail by
the applicant involved in commission of such
offences against the deceased deserves to be
negatived.

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4.Mr. Shirish Gupte, learned senior
counsel for the first informant, urged that for
appreciating commission of offences under
Sections 304B and 306 of the IPC, Court has to
takeintoconsiderationallrelevant
circumstances in which the victim was placed

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prior to her marriage and the situation in
which she landed after her marriage. It is

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urged that cases set out in the FIR clearly
reveal that on the date of engagement, the
victim and her family members were forced to
perform the marriage with accused No.1 on the
false pretext of son of accused No.4 being
required to go abroad. It is urged that
thereafter the girl coming from a well-reputed
decent family was subjected to mental torture
by persistent demand of dowry and efforts made
for settling the dispute were all in vain. Mr.

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Gupte by placing reliance upon the
circumstances of the victim being required to
commit suicide within a period of five months
of her marriage submitted that suicide being an

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extreme step taken by an individual and during
relevant period the victim being in the family
of the applicant and others leads to no other
inference but herself being required to end the
life due to facing the situation, as urged by

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the prosecution and as such considering

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relevant facits and in-depth involvement of the
applicant in commission of the offences being
spelt out from the material in the charge-
sheet, the applicant is not entitled for bail.

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5.The learned counsel for the applicant

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in support of the prayer for bail firstly
canvassed that prior to lodging of the FIR due
to arising of dispute, the deceased was forced
to lodge a complaint with Yerwada Police
Station on 3-2-2014, but material in said
complaint, which is first-hand material flowing

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from the victim about her grievance against
family members of the applicant, is confined to

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the quarrels having taken place in between the
mother of the deceased and accused No.3 and
since then herself being forbidden to call her
parents and being told not to talk with them,
thereafter on her own the deceased having left
for the house of her parents and thereon

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accused No.1 and accused No.3 had reprimanded

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her that in event of herself going to the place

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of her father, they would not allow her to
return and would be segregating their relation
with her. The learned counsel submitted that in
said first complaint made by the victim nowhere
there is even a whisper of herself being
subjected to cruelty and/or harassment on the
count of non-payment of dowry or not bringing
amount of Rs.15,00,000/- from her parents for
commencement of business by the applicant. It
is submitted that beyond said say of the
deceased, the charge-sheet does not contain any
direct material regarding reason for which the

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deceased was having a grievance against the
applicant or the other members of his family.
The learned counsel urged that even without
going to the merits and de-merits of the
allegations levelled in said first complaint,
it can be safely said that there exist no

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material about the deceased having grievance
regarding demand of dowry against the
applicant. It is urged that in light of said
position, the grievance now tried to be made by
lodging FIR about two months back thereafter

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and setting out a case of harassment and
torture on the count of demand of dowry is
clearly prima facie incredible. It is urged
that having regard to it, no presumption, as
contemplated under Section 304B of the IPC or
even under Section 113B of the Evidence Act
arises. A perusal of said complaint and
material in the charge-sheet prima facie
supports the factual position, as contended by
learned counsel for the applicant.

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6.However, the submission canvassed by

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learned APP that married girls are reluctant to
level allegations against in-laws soon after
marriage in the hope of saving the marriage

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also cannot be over-looked. The learned APP was

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very much right in submitting that as said
complaint, dated 3-2-2014, read as a whole
prima facie does not lead to the conclusion
that beyond the grievances mentioned therein
the victim had no other grievance against the
members of the family of the applicant, a
conclusion cannot be drawn even prima facie
that either there was no demand for dowry or
demand for Rs.15,00,000/-, as later on revealed
from the FIR lodged by father of the deceased
and so also in the supportive material to said
aspect found in statements of the mother and
brother of the victim. He was further right in
submitting that at the maximum, upon said
material it can be said that neither the
father, mother or brother of the deceased had
lodged complaint against members of the
applicant's family in month of February. It is
urged that reason for it or the reason for

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their such conduct can be determined only at
the time of trial. It is urged that since the
victim having already passed away, her said
conduct of not making a grievance about demand
of dowry though now cannot be decided, still
merely because of her said conduct a prima
facie conclusion cannot be jumped, as
canvassed, of there being no demand of dowry or
there being no harassment on said count. Thus,
the submission canvassed by learned counsel for

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the applicant that absence of such an
allegation in the complaint dated 3-2-2014
itself denotes of there being no such demand or
the case of such a demand later on set up prima
facie cannot be accepted.

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7.Since perusal of material pertaining
to the alleged demand, as found contained in
the FIR and in statements of mother and brother
of the deceased, prima facie giving impression

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of such a demand being made after marriage,
both sides were asked to make submissions
whether such a demand for any amount to be paid
after the marriage would constitute dowry, as
contemplated under Section 304B of the IPC. Mr.
Gupte by placing reliance upon decisions in the
case of Pawan Kumar and others v. State of
Haryana, reported in 1998 Cri.L.J. 1144 and
State of A.P. v. Raj Gopal Asawa and another
reported in 2004 Cri.L.J. 1791 submitted that
said decisions squarely reveal that if demand
made had a nexus with marriage, then merely
because the demand is made after the marriage
or an amount was required to be paid after the
marriage would not change the character of the
amount for which the demand was made. Mr. Gupte
by drawing attention to the material in the FIR
as well as statements of mother and brother of
the deceased, urged that same squarely reveals
that deceased was told that no dowry was paid

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during the marriage, clearly reveals that

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demand of Rs.15,00,000/- made for commencing of
business had nexus with the marriage and as
such squarely the same would be covered as a
demand made by way of dowry.

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8.Mr. Rohan Nahar, learned counsel for

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the applicant, refuted the said submission by
placing reliance upon a decision in the case of

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Modinsab Kasimsab Kanchagar v. State of
Karnataka and another, reported in AIR 2013 SC
1504. It is his submission that in said
decision the Apex Court came to the conclusion

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that demand made was not in connection with
dowry but it was a demand in connection with
Society loan of Rs.1000/- and as such said
demand would not be covered within the
definition of dowry, as contemplated under
Section 304B of the IPC. The learned counsel
thereafter by taking through the material

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pertaining to alleged harassment urged that
merely because a fact was repeated that no
dowry was taken and/or even given or a demand
of Rs.15,00,000/- being made for commencing a
new business, the character of the demanded
amount would not fall within the meaning of
dowry, as contemplated under the relevant
provisions. He thus contended that hence there
may not arise any question of the applicant or
members of his family having subjected the
deceased to harassment on the count of dowry
and there will not survive any question of
raising any presumption/deeming fiction, as
contemplated under Section 304B of the IPC or
Section 113B of the Evidence Act, as the case
may be.

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9.After giving anxious consideration to
submissions advanced and perusal of decisions
cited and after taking into consideration

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provisions of Section 304B of the IPC and

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Section 113B of the Evidence Act, it can be
safely said that whether a particular demand

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was dowry or not would be a question of fact,
required to be determined upon the available

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material. Needless to add, no dispute can be
entertained on the proposition set out in the
said decisions that if the demand has nexus
with marriage in question, then same would
amount to dowry and, if not, then same would
not assume the character of it being for dowry.
The same is obvious from a glance at Section
304B of the IPC or Section 113B of the Evidence
Act, as said sections within it's wide sweep

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and ambit cannot be said to be covering all
demands made after the marriage either by the
husband or members of his family under the
caption of demand of dowry, unless same has an
integral nexus with the marriage, i.e. in true
sense the marriage being effected by agreeing

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to make payment of amount demanded then only it
would be covered within the caption of dowry.
It may be true that in some cases dowry is paid
prior to marriage, or at the time of marriage,
or even may be agreed to be paid either fully
or in part after the marriage. Merely because
payment is made after the marriage, said facit
by itself would not take away either the demand
made for it or payment made later on out of the
caption of dowry, as contemplated under the
relevant provisions.

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10.On the said backdrop, prima facie

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considering the material in the FIR and
statements of mother and brother of the
deceased and same equivocally revealing that
words mentioned therein, as pointed out by
learned senior counsel Mr. Gupte, nowhere even
whispers that earlier there was any agreement
for payment of such money. On the contrary,

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prima facie same gives an impression that later

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on such demand being made for the purpose of
commencement of new business. Having regard to
it, it is difficult to accept the submission
canvassed that said demand was made for the
purpose of dowry. Also having regard to it, it
is difficult to accept the submission canvassed
that since the relevant material contains such
a demand, the death of the victim can be said
to be a dowry death and due to the deeming
fiction and/or presumption, said material can
be said to be sufficient for prima facie

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showing involvement of the applicant in
commission of offence under Section 304B of the
IPC.

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11.Now coming to the next question
regarding alleged conduct on part of the
applicant and his family members falling either
in Clause (a) of the explanation to Section

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498A and/or amounting to abetment, as
contemplated under Section 306 of the IPC, both
sides had made efforts to convince that the
material collected by the investigating agency
in the shape of chat messages exchanged by the
deceased with her friends revealing that there
was harassment or no harassment, as contended
by them. Mr. Nahar, by drawing attention to a
few messages from it contended that exchange of
such messages in terms reveal that the deceased
was possessing a mobile and as such the same
takes away all the sting of allegation of
herself being not permitted to move freely and
talk with her parents. Mr. Arfan Sait, learned
APP, retaliated said submission by submitting
that it is not the case of the prosecution that
the deceased was not allowed to mingle with her
friends or to attend college but she was
harassed on the count of keeping relation with
her parents. Truly speaking, no decision on

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either aspect can be drawn because the
messages, as described, were exchanged by the
deceased with her friends. It can be added that
said messages, at the most, would prima facie
establish the nature of the messages sent but

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not truth of the matter stated therein.
Similarly, it also appears a debatable question
whether on count of the deceased being asked to
severe her relation with her family members by
itself can be construed an act sufficient
enough for abetting the offence of commission
of suicide by the deceased or said facit being
sufficient for driving the deceased to commit
suicide.

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12.In the aforesaid premises, even
accepting there being prima facie material
regarding involvement of the applicant in the
commission of offence under Section 498A or
Section 306 of the IPC, after taking into

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consideration the nature of harassment caused,
i.e. mental torture and not any grave physical
cruelty, it is difficult to negative the prayer
for bail. It appears accordingly because none
of those offences for which prima facie there
exists material is exclusively punishable with
death and/or imprisonment with life. Needless
to add, the material upon which the prosecution
relies is of a debatable character and the
facts and circumstances not showing this being
not a fit case for exercising discretion in
favour of grant of bail, which is rule of law,
the application deserves to be allowed.

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13.Nothing aforesaid should be construed
as an opinion expressed by this Court regarding
merits of the matter as all aforesaid
observations are made for determining the
merits in the prayer for bail.

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14.The application is allowed. The

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applicant is directed to be released on bail on

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furnishing P.R. Bond in the sum of
Rs.1,00,000/- (Rupees One Lakh only) with one
or more sureties to make up like amount and
subject to conditions that the applicant, after
his release, shall (i) stay at the address
mentioned in the application and shall attend
the I.O. whenever summoned for the purpose of
investigation; (ii) not indulge in activity of
tampering, threatening, coercing, intimidating
or pressurizing the prosecution witnesses in
any manner; (iii) not make attempt to contact
any of the prosecution witnesses mentioned in
the charge-sheet; and (iv) not misuse the
protection granted vide this order for fleeing
away or for committing any further offence.

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15.After passing of this order, the
learned APP requested for expediting the trial.

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The learned counsel for the applicant consents

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for it. Inform the trial Court to make best

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endeavour to commence and complete the trial at

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the earliest.

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16.The application accordingly stands
disposed of.

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 (P.D. KODE, J.)

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Ajay Balkrushna Khedkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Ajay Balkrushna Khedkar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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