Allahabad High Court
KUSUMversusSTATE OF U.P.
- Decided
- Bench
- KRISHAN PAHAL
Holding
Bail was denied as the applicant’s inclusion in the dying declaration and the gravity of the charges rendered the application devoid of merit.
Summary
The High Court considered a second bail application filed by Ms. Ifrah Islam, who is charged under Sections 124(1), 80(2), 85 BNS and Sections 3/4 of the D.P. Act for allegedly setting the deceased on fire. The applicant argued that the dying declaration against her is unreliable because the doctor’s certificate did not state that the deceased was mentally fit, and claimed she is innocent, a mother of three, and has been in custody for over ten months. The State opposed bail, contending that the dying declaration was made by a conscious and fit victim and directly implicates the applicant. The court examined the trial status, noting that nine witnesses had been examined and defence evidence was scheduled, and held that the presence of the applicant’s name in the dying declaration and the seriousness of the offences preclude bail. Consequently, the bail application was rejected as devoid of merit, with a direction for the trial to proceed expeditiously.
Issues considered
- The applicability of bail in a case where the accused is named in a dying declaration.
- Whether the absence of a specific "mentally fit" observation in the doctor's certificate renders the dying declaration inadmissible.
- Whether the seriousness of the offences (including sedition) outweighs the applicant's personal circumstances for grant of bail.
Legislation cited
- D.P. Act — s. 3, 4
- Indian Penal Code — s. 124(1), 80(2), 85
Subjects
- bail
- dying declaration
- mental fitness
- sedition
- criminal trial
- expeditious trial
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 7787 of 2026
Kusum
.....Applicant(s)
Versus
State of U.P.
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajay Kumar Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 65
(Sr. No.54 out of 205)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised. Supplementary affidavit filed today is taken on
record.
2. Heard Sri Raj Kumar Khanna, learned Senior Counsel assisted by Sri
Ajay Kumar Singh, learned counsel for applicant, Ms. Ifrah Islam, learned
State Law Officer for the State and perused the material placed on record.
3. The present bail application has been filed by the applicant in Case Crime
No.402 of 2025, under Sections 124(1), 80(2), 85 BNS and 3/4 D.P. Act,
Police Station Khalilabad, District Sant Kabir Nagar with the prayer to
enlarge her on bail.
4. This is the second bail application on behalf of the applicant. The first one
was rejected by this Court vide order dated 07.08.2025 passed in Criminal
Misc. Bail Application No.27198 of 2025 and the following order was
passed:-
"1. List has been revised.
2. Heard Sri Akhilesh Kumar Mishra, learned counsel for the applicant and Sri Sunil
Kumar, learned A.G.A. for the State and perused the record.
3. Applicant seeks bail in Case Crime No. 402 of 2025, under Sections 124(1), 80(2), 85
BNS and Section 3/4 of D.P. Act, Police Station Khalilabad, District Sant Kabir Nagar,
during the pendency of trial.
BAIL No. 7787 of 2026
2
4. Learned counsel for the applicant has stated that the applicant is innocent and she has
been falsely implicated in the present case. The allegations are per se false. The applicant
is the sister-in-law (jethani) of the deceased person.
5. Learned counsel has next stated that the applicant lives separately to the husband-wife
duo and she has nothing to do with the said offence. The applicant has three minor
children to take care. It is next stated that husband of the deceased person had taken the
deceased to hospital and admitted her there.
6. Learned counsel has next stated that the applicant has been falsely implicated in the
case after tutoring. The said dying declaration cannot be taken into consideration.
7. Per contra, learned A.G.A. has vehemently opposed the bail on the ground that the
applicant has been assigned the role of catching hold of the deceased person in the dying
declaration, as such she is not entitled for bail.
8. After hearing learned counsel for the parties and taking into consideration the fact that
there are particular allegations against the applicant and father-in-law of the deceased
person in the dying declaration, I do not find it a fit case for grant of bail to the applicant.
9. The bail application is found devoid of merits and is, accordingly, rejected.
10. However, it is directed that the aforesaid case pending before the trial court be decided
expeditiously, in view of the principle laid down in the recent judgements of the Supreme
Court in the cases of Vinod Kumar vs. State of Punjab 2015 (3) SCC 220 and Hussain
and Another vs. Union of India (2017) 5 SCC 702, if there is no legal impediment.
11. It is clarified that the observations made herein are limited to the facts brought in by
the parties pertaining to the disposal of bail application and the said observations shall
have no bearing on the merits of the case during trial."
5. Learned Senior Counsel for the applicant has stated that, as a new ground,
the dying declaration has been filed as Annexure No.SA-1 to the
supplementary affidavit filed today, and that the doctor had given a
certificate prior to the recording of the dying declaration of the deceased,
which is as follows:
"Pt. is conscious, oriented, fit for statement, 12:40 p.m. on
14.05.2025."
BAIL No. 7787 of 2026
3
6. Learned Senior Counsel for the applicant has further stated that the said
statement does not mention that she was mentally fit for statement. The word
'mentally' is missing, which indicates that her mental status was not
ascertained by the doctor concerned; as such, the said dying declaration has
no evidentiary value. The deceased sustained burn injuries and she might
have been sedated by the doctor concerned, and under the influence of the
said drug, it was not possible to record her dying declaration. The said dying
declaration has been tutored.
7. Learned Senior Counsel for the applicant has also stated that the victim
lives in a separate house, 200 meters away from the house of the applicant,
and she had an altercation with the applicant and, as such, has falsely
implicated the applicant. The applicant is a lady and has three children to
take care of and has been in jail since 22.06.2025; as such, the period of
incarceration is more than 10 months. She is ready to cooperate with the
trial, and in case she is released on bail, she will not misuse the liberty of
bail.
8. Per contra, learned State Law Officer has vehemently opposed the bail
application on the ground that the statement of the doctor categorically
indicates that the victim was in a fit state of mind and that the complicity of
the applicant is mentioned in her dying declaration, as such, the applicant is
not entitled to bail.
9. This Court had called for the status of the trial from the concerned Trial
Court. As per the said status report dated 08.04.2026, nine witnesses have
been examined and the date fixed for defence evidence was 09.04.2026.
10. After hearing learned counsel for the parties and taking into
consideration the status of the trial and the applicant being named in the
dying declaration with active participation in the said offence of setting the
deceased afire, I do not find it a fit case for the grant of bail to the applicant.
The bail application is found devoid of merits and is, accordingly, rejected.
11. However, it is directed that the aforesaid case pending before the trial
court be decided expeditiously, as early as possible, in accordance with law,
if there is no legal impediment.
BAIL No. 7787 of 2026
4
12. It is clarified that the observations made herein are limited to the facts
brought in by the parties pertaining to the disposal of bail application and the
said observations shall have no bearing on the merits of the case during trial.
(Krishan Pahal,J.)
May 5, 2026
(Ravi Kant)
Digitally signed by :-
RAVI KANT
High Court of Judicature at Allahabad
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