# Arvind Kumar v. State of U.P. and

- **Citation:** (2009) 3 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-02
- **Case number:** Criminal Misc. Bail Application No.31956 of 2008
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-v-state-of-u-p-and-41465
- **Pages:** 4

## Headnote

Code of Criminal Procedure Section 439Bail-offence under Section 498-A, 304-B
IPC read with 3⁄4 Dowry Prohibition Actdeceased talking on mobile on boundary
leu roof-fell down sustained injury on
particular part of body-at once-bough in
hospital by applicant husband-referred
to G.A. Medical Institute for better
treatment in presence of her parents and
other relatives inquest report prepared
in their presence-post mortem report
also supports the case of applicantfourth day F.I.R. lodged to black male
the applicant-confinement of applicant
for more than one year-held- entitled for
bail without expressing any opinion
about merit of case.

Held: Para 11

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 10.05.2008. 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
10.05.2008 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.
Case law discussed:
[2007 (57) ACC 481].

## Text

3 All] Vipin Kumar V. State of U.P. and others

795
6. This Court had also the occasion
to consider this question in the cases of
Arvind Kumar Vs. State of U.P. and
others 2006 (4) ESC 2625 (All) and
Krishna Kumar Vs. State of U.P. and
others 2006 (5) ALJ 781 wherein the
same view has been followed.

7. We are of the opinion that the
view taken by the learned Single Judge is
in conformity with law. We do not find
any merit in the Appeal and it is
dismissed accordingly.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application No.31956
of 2008

Brijesh Kumar

...Petitioner

Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Dr. Arun Srivastava

Counsel for the Respondents:
A.G.A.

Code of Criminal Procedure Section 439Bail-offence under Section 498-A, 304-B
IPC read with 3⁄4 Dowry Prohibition Actdeceased talking on mobile on boundary
leu roof-fell down sustained injury on
particular part of body-at once-bough in
hospital by applicant husband-referred
to G.A. Medical Institute for better
treatment in presence of her parents and
other relatives inquest report prepared
in their presence-post mortem report
also supports the case of applicantfourth day F.I.R. lodged to black male
the applicant-confinement of applicant
for more than one year-held- entitled for
bail without expressing any opinion
about merit of case.

Held: Para 11

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 10.05.2008. 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
10.05.2008 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.
Case law discussed:
[2007 (57) ACC 481].

(Delivered by Hon'ble Vijay Kumar Verma, J.)

1. Prayer for bail in this bail
application under section 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.
796 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

2. The First Information Report was
lodged by Ravindra Prakash Gangwar
(father of the deceased) on 13.05.2008 at
P.S. Sun Garhi, District Pilibhit, where a
case under section 498A, 304B IPC 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 FIR
(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 09.05.2008.

3. I have heard lengthy arguments of
Dr. Arun Srivastava, Advocate, appearing
for the applicant and AGA for the State.

4. 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.

5. 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
9.00 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 under section 304-B
IPC 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 FIR.

6. 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 along with
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 along with 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
3 All] Brijesh Kumar V. State of U.P.

797
of the deceased due to demand of dowry
and on fourth day, he lodged false FIR
with a view to blackmail the accused
persons. In this very context, my attention
was drawn towards the case of Anil
Kumar Singh vs. State of U.P. [2007 (57)
ACC 481].

7. It was also submitted by learned
counsel that had the accused persons
committed murder of deceased as alleged
in the FIR, 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 hight and time of sustaining injuries
also has been mentioned as 9.00 p.m. on
09.05.2008, 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).

8. 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.

9. It was further submitted by
learned counsel that similar allegations
were made against all the accused persons
in the FIR 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
25.07.2008, 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.

10. The bail application was
vehemently opposed by learned AGA
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.

11. 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
798 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

during treatment on 10.05.2008. 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
10.05.2008 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.

12. Let the applicant Brijesh Kumar
s/o Prem Kumar be released on bail in
Case Crime No 645 of 2008, under
sections 498A, 304-B IPC 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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 30302 of 1991

Brijesh Kumar

...Petitioner
Versus
District Judge and others ...Respondents

Counsel for the Petitioner:
Sri V.K.S. Chaudhary
Sri R.S. Maurya
Sri Kunal Ravi Singh

Counsel for the Respondents:
Sri,Sharad Malviya
Sri C.S. Singh
S.C.

Code of Civil Procedure-Order XXII Rule
3-read
with
Section
2
(11)-Legal
Representative-during
pendency
of
execution proceeding arises out from
partition suit-plaintiff died-adopted son
moved application-rejection on ground
plaintiff being widow had limited rightscan not be touched by the execution
Court-except the regular Court-heldboth courts below committed great
illegality-can
not
sustain-execution
Court directed to allow the substitution
Application.

Held: Para 9

In the present case, the petitioner claims
to be the legal representative of the
deceased plaintiff. The petitioner, in my
opinion, falls within the definition of
"legal representative", as defined under
Section 2 (11) of the Code of Civil
Procedure. The court below committed
an
error
in
not
substituting
the
petitioner. It may be observed that by
substituting the petitioner, the title of
the petitioner over the property in
question
nor
the
claim
of
the
respondents that the property reverted
to the defendants pursuant to the Will is
being decided. These questions/claims of
the parties or the title over the property
in question could not be decided in a
proceeding under Order XXII, Rule 3 of
the
Code
of
Civil
Procedure.
Such
questions have to be gone into in regular
proceedings.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Shri Kunal Ravi Singh and
Shri Sharad Malviya, the learned counsel
for respondent.