Brijesh Kumar vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this bail application u/s 439 of the Code of Criminal Procedure (in short ''the Cr. P.C.'') has been made on behalf of the applicant Brijesh Kumar s/o Prem Kumar, who is the husband of deceased Smt. Neelu Gangwar, who died within a period of 7 years of her marriage due to sustaining injuries.

The first information report was lodged by Ravindra Prakash Gangwar (father of the deceased) on 13.5.2008 at P.S. Sun Garhi, district Pilibhit, where a case under Sections 498A and 304B, I.P.C. and Section 3/4, D.P. Act, was registered at Crime No. 645 of 2008 against Brijesh Kumar (applicant herein), Dharmendra Kumar, Prem Kumar, Durga, Gyani and Sandhya. The allegations made in the F.I.R. (Annexure-1), in brief, are that marriage of Neelu Gangwar had taken place on 15.12.2007 with Brijesh Kumar and dowry as per capacity was given, but her husband and other in-laws were not satisfied with the dowry and they were causing harassment of deceased making demand of four wheeler vehicle and when their demand was not fulfilled, they committed her murder on 9.5.2008.

I have heard lengthy arguments of Dr. Arun Srivastava, advocate appearing for the applicant and A.G.A. for the State.

According to the post mortem report (Annexure-7), the deceased had died due to coma as a result of ante-mortem head injury. Seven ante-mortem injuries were found on the person of deceased at the time of post mortem examination.

The first and foremost submission made by learned Counsel for the applicant was that on the fateful night, the deceased had gone on the roof of the house at about 9 p.m. to have talks on mobile, as signal in the house were very weak, but she could not see boundary-less roof and fell down from the roof, due to which she sustained injuries. It was further submitted in this context that after sustaining injuries, the deceased was immediately carried by the applicant Brijesh Kumar to Sharda Hospital, Pilibhit, where her treatment was made and thereafter for better treatment, she was carried in the same night to Gangasheel Advanced Medical Research Institute, Bareilly, where she was admitted, but she would not survive and died there during treatment and hence, the offence punishable u/s 304B, I.P.C. would not be made out in present case, as the deceased had sustained injuries accidentally by falling down on earth from the roof. In this context, my attention was drawn towards the post mortem report also and it was submitted by learned Counsel that almost all the ante-mortem injuries were on same side of the body, which indicates that the deceased had sustained injuries by falling down and not by beating her as alleged in the F.I.R.

Next submission made by learned Counsel was that as soon as the deceased sustained injuries by falling down from the roof of the house, information was given to her father, who came alongwith other family members in hospital and when the deceased died, the complainant and his family members were present at the time of inquest proceedings, which was conducted on 10.5.2008. It was also submitted in this context by learned Counsel that the applicant Brijesh Kumar was also present at the time of inquest proceeding and he as well as his father Prem Kumar also had signed the inquest report alongwith the father, uncle and sister of deceased. For this submission, my attention was drawn towards the copy of inquest report (Annexure-6). It was also submitted by learned Counsel in this context that at the time of inquest proceeding, no complaint was made by the complainant about causing harassment of the deceased due to demand of dowry and on fourth day, he lodged false F.I.R. with a view to blackmail the accused persons. In this very context, my attention was drawn towards the case of Anil Kumar Singh v. State of U.P. (LVII)2007 ACC 481 : 2007 (1) ACR 619.

It was also submitted by learned Counsel that had the accused persons committed murder of deceased as alleged in the F.I.R. they would not have carried the deceased for treatment to hospital, as there was risk of giving statement by her against the accused persons, but after sustaining injuries by deceased by falling down from the roof of the house, she was immediately rushed to Sharda Hospital, Pilibhit and for better treatment, she was admitted by the applicant in Gangasheel Advanced Medical Research Institute, Bareilly. Drawing my attention towards Annexure-3, (Medical papers of Gangasheel Institute), it was submitted by learned Counsel that in these papers also, it is mentioned that the deceased had sustained head injuries by falling down from height and time of sustaining injuries also has been mentioned as 9 p.m. on 9.5.2008, as is the case of applicant in his bail application. My attention was drawn towards paper No. 31 also, from which this fact is borne out that the deceased Neelu Gangwar was admitted in Gangasheel Institute, Bareilly by her husband Brijesh Kumar Gangwar (applicant herein).

Next submission made by learned Counsel for the applicant was that from the opinion of punch witnesses expressed in the inquest report (Annexure-6) also, this fact is borne out that the deceased had sustained injuries and died as a result of falling down from the roof of the house. It was also submitted in this context that the father, uncle and sister of the deceased were witnesses of this inquest report and they also had opined that the deceased had died due to falling down from the roof.

It was further submitted by learned Counsel that similar allegations were made against all the accused persons in the F.I.R. and statements of witnesses and since the co-accused Smt. Gyani and Smt. Durga have been granted bail by another Bench of this Court, vide order dated 12.11.2008, passed in Bail Application No. 30436 of 2008, hence the applicant, who is confined in jail since 25.7.2008, also should be released on bail, because he did not play any role in causing the injuries to the deceased, who had fallen down from the roof of the house and sustained injuries.

The bail application was vehemently opposed by learned A.G.A. contending that the deceased had died due to sustaining injuries within a period of seven years of her marriage and since harassment was caused by the applicant and other accused persons making demand of four wheeler vehicle in dowry, hence in this heinous anti-social crime, the applicant should not be released on bail.

I have carefully gone through the entire case diary and other material on record. It is not disputed that the deceased in injured condition was carried to Sharda Hospital, Pilibhit, where her treatment was made and thereafter, for better treatment, she was carried by the applicant himself to Gangasheel Advanced Medical Research Institute, Bareilly where she was admitted, but could not survive and died during treatment on 10.5.2008. It is also not disputed that information was given to the complainant, who came with his family members, who were present at the time of inquest proceedings on 10.5.2008 and complainant, his brother Devendra Kumar and daughter Priyanka had signed inquest report (Annexure-6). In the ''opinion of panch witnesses'' (ray panchan) endorsed at page 3 of the inquest report, it is mentioned that the deceased has died due to falling down from roof. Therefore, having regard to all these facts and keeping in view the aforesaid submissions made by the learned Counsel for applicant, but without expressing any opinion about merit of the case, the applicant, who is confined in jail for more than a year, may be released on bail.

Let the applicant Brijesh Kumar S/o Prem Kumar be released on bail in Case Crime No. 645 of 2008, under Sections 498A and 304B, I.P.C. and Section 3/4, D.P. Act, P.S. Sungarhi, district Pilibhit on his executing a personal bond for Rs. 40,000 and furnishing two sureties each in the like amount to the satisfaction of the Court concerned.