Allahabad High Court
KUSUM DEVI AND ANOTHERversusSTATE OF U.P.
- Decided
- Bench
- VIVEK VARMA
Holding
The applicants are entitled to bail as there is no corroborative evidence linking them to the offence and no reasonable apprehension of tampering or intimidation.
Summary
The High Court considered a bail application filed by Kusum Devi and Ramsamujh Nishad, who were charged under Section 105 of the B.N.S. for the alleged murder of an informant's husband. The FIR was lodged four days after the incident, and the charge was later altered from Section 103(1) to Section 105. The prosecution’s case relied on statements that primarily implicated co‑accused Kamlesh Nishad, with no corroborative evidence linking the applicants to the offence. The applicants have no prior criminal record and have been in custody for over a month. The Court found the delay in filing the FIR and the lack of evidence sufficient to grant bail, noting no risk of evidence tampering or witness intimidation. Consequently, the Court ordered the release of the applicants on bail subject to standard conditions.
Issues considered
- Whether the delay in lodging the FIR defeats the prosecution’s case for denying bail
- Whether the absence of corroborative evidence linking the applicants to the offence justifies bail
- Whether the applicants pose a risk of tampering with evidence or intimidating witnesses
Legislation cited
Subjects
- bail
- FIR delay
- false implication
- evidence
- Section 105
- Section 103
- Section 180
- criminal antecedents
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 34027 of 2026
Kusum Devi And Another
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Mahesh Kumar Sahani, Narendra Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 64
HON'BLE VIVEK VARMA, J.
1. Heard learned counsel for the applicant, Sri N. K. Sharma, learned
A.G.A. for the State and perused the record.
2. The present bail application has been filed with a prayer to enlarge the
applicant on bail in Case Crime No. 325 of 2026, under Section 105
B.N.S., Police Station- Badahalganj, District- Gorakhpur during pendency
of the trial.
3. Counsel for the applicants contends that the applicants have been
falsely implicated in the present case. The incident is alleged to have
occurred on 26.07.2026, whereas the first information report was lodged
on 30.07.2026, under Section 103(1) B.N.S. Delay in lodging the first
information report is fatal to the prosecution case. During the course of
investigation, Section 103(1) B.N.S. was deleted and the case was
converted under Section 105 B.N.S. As per the allegations contained in
the first information report, the applicants along with Kamlesh Nishad are
alleged to have assaulted the husband of the informant by a stick (danda)
and rod, who subsequently died. According to the post mortem report a
single injury was found on the head. In the opinion of the doctor the cause
of death is coma due to antemortem head injury. It is contended that the
witnesses namely, Rajendra Nishad, Janardan Nishad and Uttam Nishad
in their statements recorded under Section 180 B.N.S.S. stated that co-
accused Kamlesh Nishad had caused injury on the head of the deceased
by a stick (danda). Vague and general role has been assigned to the
applicant. The case of the applicants is distinguishable from that of co-
accused Kamlesh Nishad. At this stage, there is no corroborative evidence
to link the applicants with the offence. The applicants are in jail since
14.08.2026 having no criminal history and if they are released on bail,
they will not misuse the said liberty.
BAIL No. 34027 of 2026
2
4. Learned A.G.A. has opposed the prayer for bail but could not
satisfactorily dispute the aforesaid submissions from the record.
5. Having heard learned counsel for the parties and after perusal of the
record, this Court prima facie finds that the first information report has
been lodged belatedly. According to the post mortem report a single
injury was found on the head. In the opinion of the doctor the cause of
death is coma due to antemortem head injury. As per the statements of the
witnesses namely Rajendra Nishad, Janardan Nishad and Uttam Nishad,
co-accused Kamlesh Nishad is alleged to have caused injury on the head
of the deceased by a stick (danda). Vague and general role has been
assigned to the applicant. At this stage, there is no corroborative evidence
to link the applicants with the offence. Moreover, the applicants have no
criminal antecedents and have remained confined for more than a month
and there is no hope of early conclusion of trial, and no reasonable
apprehension has been brought to the fore by the State that the applicants,
if enlarged on bail, would either tamper with the evidence or delay the
trial or intimidate the witness, therefore, without commenting on the
merits of the case, I am of the opinion that the applicants are entitled to be
enlarged on bail.
6. Let the applicants- Kusum Devi and Ramsamujh Nishad, involved in
the aforesaid case, be released on bail on their furnishing a personal bond
and two sureties each in the like amount to the satisfaction of Court
concerned subject to the conditions that they:
(i) shall appear on the date fixed by the trial court;
(ii) shall not tamper with the prosecution evidence; and,
(iii) shall not pressurize the prosecution witnesses.
7. In case of breach of any of the above conditions, the prosecution shall
be at liberty to move bail cancellation application before this Court.
(Vivek Varma, J.)
September 23, 2026
Abhishek
Digitally signed by :-
ABHISHEK SINGH
High Court of Judicature at Allahabad
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