In Subhash Yadav vs. The State of Bihar (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Sunil Dutta Mishra delivered a 23-page long judgement dated September 29, 2026, wherein, it concluded:"33. We, therefore, find that in this case, the learned trial court has grossly erred in appreciation of the evidences available on the record. The prosecution has failed to establish its case beyond all reasonable doubts. 34. In result, we set aside the impugned judgment dated 06.12.2022 and the order of sentence dated 08.12.2022 passed by learned Additional Sessions Judge-III, Lakhisarai in Sessions Trial No. 60 of 2020, arising out of Lakhisarai (Ramgarh Chowk) P.S. Case No. 56 of 2019. The accused-appellant is acquitted of all the charges, giving him benefit of doubt. The appellant is said to be in
jail, he shall be released forthwith, if not wanted in any other case. 35. This appeal stands allowed." The judgement was authored by Justice Prasad.
The appellant had preferred the appeal for setting aside the judgment of conviction dated December 6, 2022 and the order of sentence dated December 8, 2022 passed by Additional Sessions Judge-III, Lakhisarai in Sessions Trial No. 60 of 2020, which arose out of a Lakhisarai (Ramgarh Chowk) P.S. Case of 2019. By the impugned judgment, the appellant was convicted for the offences punishable under Sections 341/34, 324/34, 326/34 and 302/34 of the Indian Penal Code. The appellant was sentenced to undergo simple imprisonment for one month for the offence under Section 341/34 IPC with a fine of Rs.500/. He was also sentenced to undergo three years simple imprisonment for the offence under Section 324/34 IPC with a fine of Rs.5,000/. He was further sentenced to undergo simple imprisonment for seven years for the offence under Section 326/34 IPC with a fine of Rs. 5,000/. The appellant was sentenced to undergo life imprisonment for the offence under Section 302/34 IPC with a fine of Rs.10,000/.
The prosecution story was based on the fardbeyan of Birju Yadav (deceased) recorded by ASI Anil Kumar of P.S. Ramgarh Chowk at Emergency Ward, Sadar Hospital at 17:20 hrs on January 18, 2019 wherein he had alleged that on January 18, 2019 at about 03:00 P.M., while he was cutting grass in his field, his villagers namely (1) Vikash Yadav, (2) Subhash Yadav, (3) Mukesh Yadav and (4) Rajesh Yadav came armed with sword and other weapon and assaulted him with intention to kill. It was alleged that Vikash Yadav assaulted the informant with a Talwar on his right leg causing cut injuries at 2-3 places. Subhash Yadav (the appellant) assaulted him with katta on his left causing injuries at 2-3 places. It was further alleged that Mukesh Yadav assaulted the informant on his head resulting in 2-3 cut injuries and Rajesh Yadav assaulted him with a katta, causing injuries to his right wrist and hand. It was alleged that all four accused persons assaulted the informant with deadly weapon due to which he sustained various injuries on his body. The informant stated that this occurrence took place due to previous enmity. On the basis of his fardbeyan recorded at Sadar Hospital, Lakhisarai, Ramgarh Chowk P.S. Case No. 56 of 2019 dated January 18, 2019 was registered for the offences under Sections 341, 323, 324, 326, 307, 120B and 34 of the IPC against (1) Vikash Yadav, (2) Subhash Yadav, (3) Mukesh Yadav and (4) Rajesh Yadav. During the course of treatment, the informant succumbed to his injuries on January 19, 2019, whereafter Section 302
I.P.C. was added.
After investigation, Police submitted a charge-sheet bearing Chargesheet No. 473 of 2019 dated October 9, 2019 against the appellant Subhash Yadav for the offences punishable under Section 302/34 IPC, keeping the investigation pending against (1) Vikash Yadav, (2) Mukesh Yadav and (3) Rajesh Yadav.
The Chief Judicial Magistrate, Lakshisarai vide order February 17, 2020 took cognizance of the offence punishable under Section 302/34 IPC against the appellant Subhash Yadav and committed the records to the Court of Sessions on March 2, 2020. Accordingly, vide order dated November 16, 2021 charges were framed for the offences punishable under Sections 323/34, 324/34, 326/34, 341/149, 307/34, 302/34 and 120B IPC against accused-appellant Subhash Yadav. In his statement under Section 313 Cr.P.C., the accused denied the allegations and pleaded false implication. In course of trial, the prosecution examined as many as eight witnesses and got exhibited several documents.
The Trial Court, upon appreciation of the oral and documentary evidences, held that the homicidal death of Birju Yadav stood established on the basis of the evidence of Dr. Shiv Ranjan Kumar (PW-4), postmortem report, inquest report and other materials on record. The Trial Court treated the fardbeyan of the deceased, recorded by Anil Kumar (PW-8) at Sadar Hospital, Lakhisarai, as a dying declaration and held that the same was admissible even in the absence of a medical certificate regarding the fitness of the deceased, particularly when the recording witness had stated that the deceased was in a fit condition to give his statement. The specific allegation against the appellant Subhash Yadav of assaulting the deceased with a Katta was found corroborated by the testimonies of P.Ws.1, 2 and 3 and the medical evidence. The Trial Court further rejected the defence objections regarding the related nature of the prosecution witnesses, non-examination of independent witnesses, alleged inconsistencies and the plea of alibi, holding that the prosecution witnesses were consistent on material particulars and their evidence inspired confidence, whereas the defence failed to establish the plea of alibi with requisite certainty. The Trial Court also held that previous enmity between the parties could not, by itself, discredit the prosecution case and concluded that the appellant, along with the co-accused, had assaulted the deceased and shared common intention in commission of the offence. Accordingly, the appellant was convicted under Sections 341/34, 324/34, 326/34 and 302/34 of the I.P.C. On the point of sentence, considering that there was no material to show that the appellant had inflicted more than one blow or that the murder was committed in a brutal manner, the Trial Court held that the case did not fall within the category of rarest of rare cases and sentenced the appellant to simple imprisonment for one month under Section 341/34, three years under Section 324/34, seven years under Section 326/34 and imprisonment for life under Section 302/34 of the I.P.C., with respective fines and directed payment of the fine to the dependent of the deceased besides recommending compensation through the District Legal Services Authority.
The appellant's counsel submitted that the prosecution case suffered from serious infirmities from its very inception. It was submitted that the formal F.I.R. was registered fifty minutes prior to the recording of the fardbeyan of the deceased, which was projected as the basis of the F.I.R. PW-1, Mauli Yadav @ Anmol Kumar, nephew of the deceased, has stated that he had made his statement before the police at Sadar Hospital at about 4:30 P.M. on January 18, 2019, whereas the fardbeyan of the deceased was recorded at 5:20 P.M., however, the statement of PW-1, being the earliest version, was not made the basis of the F.I.R. It was submitted that the first version of the prosecution case was suppressed. He also submitted that the alleged fardbeyan cannot be safely treated as a dying declaration as there was no medical certification regarding the fitness of the deceased to make the statement, rather, PW-8, A.S.I. Anil Kumar, admitted that the doctor treating the deceased had not granted permission for recording his statement. Reliance was placed upon the judgment of the Supreme Court in Surjit Singh vs. State of Punjab reported in (2024) 2 SCC 411. It was submitted that PW-4, Dr. Shiv Ranjan Kumar, had found as many as ten ante mortem injuries on the body of the deceased, yet no treatment papers or medical records from Sadar Hospital, Lakhisarai or Patna Medical College Hospital was produced to establish that the deceased was in a fit physical and mental condition to make such a detailed statement. In this regard, reliance was placed upon the judgment of the Supreme Court in Suresh Sahu & Anr. vs. State of Bihar (Now Jharkhand) reported in 2025 SCC OnLine SC 2637. He submitted that the Investigating Officer stated that the further statement of the deceased was recorded through videography but the said videographic evidence was not produced before the Trial Court, though it would have been a material piece of evidence for appreciating the condition and manner of making the alleged statement. Reliance was placed upon the judgment of the Supreme Court in Tomaso Bruno & Anr. vs. State of Uttar Pradesh reported in (2015) 7 SCC 178. It was also submitted that the alleged dying declaration was not put to the appellant in his examination under Section 313 Cr.P.C. and therefore the said incriminating circumstance could not have been relied upon against him. In this regard, counsel for the appellant relied upon the judgment of the High Court in Munna Shukla vs. State of Bihar reported in 2020 SCC OnLine Pat 1980 and the judgment of Supreme Court in Aejaz Ahmad Sheikh vs. State of Uttar Pradesh & Anr. reported in 2025 SCC OnLine SC 913. The appellant's counsel submitted that material inconsistencies exist regarding the motive, inasmuch as the fardbeyan refers to prior enmity, whereas, PW-2 refers to rangdaari as the reason for the occurrence. The defence brought on record documents relating to the criminal antecedents of the deceased. It was lastly submitted that PW-1, PW-2 and PW-3 were not eyewitnesses to the occurrence. PW-2 himself stated that his statement was not recorded by the police and the presence of PW-2 and PW-3 at the place of occurrence does not find mention in the fardbeyan of the deceased or the subsequent fardbeyan of PW-3. Thus, according to counsel, once the alleged dying declaration was found to be doubtful and excluded from consideration, the remaining evidence was insufficient to establish the guilt of the appellant beyond reasonable doubt and the appellant deserves to be extended the benefit of doubt.
Justice Prasad observed: "A perusal of the enclosure to the formal F.I.R. would show that it has been drawn on the basis of the fardbeyan of Birju Yadav (since deceased) recorded by A.S.I. Anil Kumar (PW-8) in the Emergency Ward of Sadar Hospital, Lakhisarai at 17:20 hrs on 18.01.2019. It is evident that the time of recording of formal F.I.R. is fifty minutes prior to the recording of the fardbeyan (Exhibit ‘P- 1/2’). In this regard, we have also noticed from the deposition of Mauli Yadav @ Anmol Kumar (PW-1), who is the nephew of the deceased, that he claims to have made statement before police in the Sadar Hospital on 18.01.2019 at 4:30 P.M. Therefore, there is no iota of doubt that prior to recording of the fardbeyan of the victim, the statement of PW-1 had already been recorded at 4:30 P.M., but this statement has not been made basis of lodging of the F.I.R. It is for this reason, learned counsel for the appellant has submitted that the first version of the prosecution case which came through PW-1 has been suppressed. We are of the opinion that the submissions of the learned counsel for the appellant as regard suppression of the first version cannot be thrown away."
The High Court noticed that the fardbeyan of Birju Yadav (deceased) was recorded by A.S.I. Anil Kumar (P.W.-8) in the Sadar Hospital, Lakhisarai. It was witnessed by Alakh Yadav (son of the deceased), who has deposed as PW-3 but as regards the mental state and fitness of the victim to make statement, no certification was done by any Doctor of the hospital. PW-8 stated in paragraph '3' of his deposition that the doctor who was treating Birju Yadav had not granted permission to record his statement. It referred to the judgment of Supreme Court rendered in the case of Surjit Singh, wherein, the Court had considered a case where dying declaration was recorded by the I.O. in which the doctor has certified at 4:30 P.M. that the patient was fit for making the statement. The dying declaration was recorded at 5:30 P.M. The Court found that Surjit Singh (PW-10), who had recorded the dying declaration had not stated that Dr. Sudhir Sharma had examined the deceased before giving the fitness certificate. It relied on paragraphs ‘12’, ‘13’ and ‘14’ of the judgment of the Court. It reads: “12. Now, we come to the dying declaration relied upon by the prosecution which is recorded by Surjit Singh (PW 10). He recorded the alleged dying declaration at 5.30 p.m. on 8-7-1999. A request was made by him to the doctor attached to GGS Medical College to certify whether the deceased was fit to make a statement. An endorsement, according to him, was made by Dr Sudhir Sharma at 4.30 p.m. recording that the patient was fit for making the statement. 13. In the examination-in-chief, Surjit Singh (PW 10) has not stated that Dr Sudhir Sharma examined the deceased before giving the fitness certificate. He has stated that Dr Sudhir Sharma remained present by his side when he recorded the statement of the deceased. What is most relevant is the admission given by Surjit Singh (PW 10) in Para 2 of his cross-examination, which reads thus: “2. It is correct that doctor remained beside Reeta Rani throughout when I recorded her statement. It is correct that I sought the opinion of the doctor regarding the fitness of Reeta Rani throughout her statement but he refused to give this certificate i.e. fitness certificate. …” (emphasis supplied) 14. Thus, even according to Surjit Singh (PW 10), the doctor, who gave certificate at 4.30 p.m., declined to give a certificate that when the statement of the deceased was being recorded, she was fit to give a statement. There is nothing brought on record to show that Dr Sudhir Sharma examined the deceased before giving certificate of fitness at 4.30 p.m. What is most crucial is that Dr Sudhir Sharma has not been examined as a prosecution witness. In view of what is admitted by Surjit Singh (PW 10) in Para 2 in his cross-examination, which we have quoted above, an adverse inference will have to be drawn against the prosecution for not examining the said doctor. Therefore, for the aforesaid reasons, the dying declaration allegedly recorded by Surjit Singh (PW 10) will have to be discarded. Then the other dying declaration recorded by an independent doctor, namely, Dr Manvir Gupta (PW 13), holds the field.”
Justice Prasad has recorded that in the present case, since the I.O. himself admitted that "the doctor had not granted him permission to record the statement of the victim, this Court cannot attach much evidentiary value to the fardbeyan of the victim as dying declaration. 22. This Court finds that there is a huge doubt over the condition of the victim at the time of recording of the fardbeyan in Sadar Hospital, Lakhisarai."
He also recorded: "23. The Doctor had noticed as many as ten injuries on the various parts of the body of the victim. No chit of paper regarding the treatment of the victim in the Sadar Hospital, Lakhisarai or in the Patna Medical College Hospital has been produced by the prosecution. Had those papers been produced, the Court would have been in a position to appreciate from the medical papers whether deceased was in a position to speak. 24. Going through the kind of injuries suffered by the victim, we cannot believe that the victim would have been in a position to speak. We can see from the kind of recording of the fardbeyan that it is giving every detail of himself and that of the accused persons as also the narration of occurrence which could not have been possible. In this regard, learned counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court rendered in the case of Suresh Sahu (supra)."
Supreme Court's judgement in paragraphs ‘41’ to ‘44’ reads:“41. The prosecution relies heavily on the disclosure of the names of the accused-appellants in the oral dying declaration of the deceased. However, having gone through the evidence of the medical jurist, Dr. Ajit Kumar Chaudhary (PW-5), we are unable to subscribe to the theory that the deceased would have been in a position to speak after receiving the injuries described .....42. It is impossible to believe that, having received such grave head/cranial injuries, the deceased would have been in a position to speak what to talk of making an oral dying declaration. 43. That apart, admittedly, the deceased was taken to the hospital at Mandar, at the first instance, from where he was referred to R.M.C.H., Ranchi. The treatment documents of the deceased from the Mandar Hospital could have provided vital information regarding his condition at the time of arrival at the hospital. However, the prosecution did not bring any such document on record, which further weakens the case of prosecution on the theory of oral dying declaration. 44. The evidence of Tapeshwari Kumari (PW-1) and Saroj Kumari (PW-2), being the sisters of the deceased, on the aspect of oral dying declaration is unworthy of credence for the reasons which we have assigned above.”
Justice Prasad observed:"25. In view of the above discussions, we are of the opinion that the learned Trial Court has grossly erred in appreciating the fardbeyan of the victim by taking the same as dying declaration. 26. We have further noticed that the I.O. (PW-5) has tated in paragraph ‘1’ that he had recorded the further statement of the informant (victim) and had recorded it by way of videography but the said videographic statement has not been produced before the learned Trial Court. The electronic evidence
of videography would have been a vital piece of evidence in this case and it would have demonstrated how the deceased had made statement during his hospitalization in the Sadar Hospital. Non- production of the video by the I.O. (PW-5) would prove fatal to the prosecution.'
The High Court referred to paragraph 28 of the judgment of the Supreme Court in the case of Tomaso Bruno (supra). The judgment reads:“28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 CrPC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW 1, PW 12 and PW 13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”
Justice Prasad observed: "27. We, therefore, find that in this case so far as the fardbeyan of the victim/deceased, which has been attached with the formal FIR is concerned, the same is not free from blemish and doubt for the reasons discussed hereinabove. 28. We have further noticed that in this case the said dying declaration has to be discarded in view of the provisions contained in Section 313 Cr.P.C. The dying declaration was not put before the accused-appellant during his statement under Section 313 Cr.P.C."
Reliance was placed on the judgment of the High Court in the case of Munna Shukla and the judgment of Supreme Court in the case of Aejaz Ahmad Sheikh. The High Court in paragraph ‘24’ of its decision in the case of Munna Shukla held:- “24. In the case of Jaswant Singh v. State (Delhi Administration) reported in (1978) 4 SCC 85 : AIR 1979 SC 190, it has been held by the Apex Court that the dying declaration, which is not recorded by a Magistrate has to be scrutinized closely but it is well settled that if the Court is satisfied on a close scrutiny of the dying declaration that it is truthful, it is open to the court to convict the accused on its basis without any independent corroboration.”
The Supreme Court in in paragraph ‘16’ of its decision in the case of Aejaz Ahmad Sheikh has held:-“16. The most unfortunate part is that the evidence of PW-11 about the dying declarations made by these two victims has not been put to the accused in his examination under Section 313 of CrPC. Not only that what is stated in the evidence by PW-11 is not put to the accused in his statement under Section 313 of CrPC., but even the fact that the dying declarations were made by Fatima and Amina to PW-11 was not put to the
accused.”
Justice Prasad observed: "31. We have also noticed that in this case the fardbeyan of the informant talks of prior enmity whereas the statement of Sheetal Yadav (PW-2) talks of rangdaari as the reason for the occurrence. Defence has exhibited several documents and marked exhibits to show that the deceased was a veteran criminal. He was convicted in Sheikhpura P.S. Case No. 716 of 2018. 32. We have further noticed that in this case the prosecution witness numbers PW-1, PW-2 and PW-3 are not eyewitnesses to the occurrence. PW-2 has stated that his statement was not recorded by police. Presence of PW-2 and PW-3 is not stated in the fardbeyan of the deceased or in the fardbeyan of PW-3 which was recorded on 19.01.2019 at 13:00 Hrs. The occurrence took place outside the village and in this regard, the statement of PW-3 says that it happened in south-west Bahiyar to the village."
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