[2026:RJ-JP:17698-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal No. 468/2015 Sunita @ Gyana W/o Shyam Lal Aged about 34 years, R/o Kathuwas, PS Mandhan District Alwar (At Present in Central Jail Jaipur) ----Accused/Appellant Versus State Of Rajasthan Through PP ----Respondent Connected With D.B. Criminal Appeal No. 467/2015 Anil Kumar @ Leela @ Liliya S/o Late Shri Kallu Ram Aged about 28 years, R/o Jharoda, PS Buhana, District Jhunjhunu (Raj.) (Accused is in jail at Alwar) ----Accused/Appellant Versus State Of Rajasthan Through PP ----Respondent For Appellant(s) : Pt. Shri Ram Joshi Mr. Shailender Singh Balwada with Mr. Sohan Kumawat For Respondent(s) : Mr. Amit Kumar Punia, PP HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE BHUWAN GOYAL Order 27/04/2026 Since, these appeals are directed against the common judgement dated 21.02.2015, the same have been heard together and are being decided vide this common order. Vide judgement impugned dated 21.02.2015 passed by the learned Additional Sessions Judge No.2, Behror, District Alwar (for brevity, ‘learned trial Court’) in Sessions Case No.1/2014, the accused-appellants (for brevity, ‘appellants’) have been convicted and sentenced as under:- [2026:RJ-JP:17698-DB] (2 of 9) [CRLA-468/2015] Section 302 IPC:- Life imprisonment and fine of Rs.10,000/- each; in default whereof, six months’ additional rigorous imprisonment. Section 201 IPC:- Seven years’ rigorous imprisonment and fine of Rs.5,000/- each; in default whereof, three months’ additional rigorous imprisonment. Both the sentences to run concurrently,. The relevant facts in brief are that Shri Tarachand (PW6) submitted a written report (Ex.P4) dated 16.10.2013 to the Police Station Mandhan, District Alwar wherein, it was averred that when at about 6:30 am on that day, Smt. Sunita-wife of Shyam Lal went to meet the call of nature, she found the dead body of Shyam Lal in the bushes near the water tank. Based thereupon, proceedings under Section 174 CrPC were initiated. On 20.10.2013, Tarachand submitted yet another written report (Ex.P5) at the Police Station Mandhan wherein, it was alleged that they have come to know that some unknown persons have committed murder of his brother Shyam Lal. Thereupon, an FIR No.153 dated 20.10.2013 was registered under Section 302 IPC. After investigation, the appellants were charged-sheeted under Sections 302 and 201 IPC. Charges against them were framed under Sections 302 or 302/34 and 201 IPC. After trial, they have been convicted and sentenced, as supra. Assailing the impugned judgement, learned counsels contended that the findings of the learned trial Court are based on conjectures and surmises and, as a matter of fact, there is no legally admissible evidence available on record to connect them [2026:RJ-JP:17698-DB] (3 of 9) [CRLA-468/2015] with the alleged offence. They contended that the prosecution case rests upon the testimony of Deepak Kumar (PW17)-son of the deceased and the appellant-Sunita @ Gyana as the sole eye witness; however, his police statement under Section 161 CrPC was recorded as late as on 31.10.2013, i.e., after about 15 days from the date of incident and after about 10 days from the date of registration of the FIR for which no explanation is furnished. Further, inviting attention of this Court towards his testimony, they would contend that in his examination-in-chief itself, contradicting his police statement, he has given a clean chit to his mother-Sunita. They contended that a perusal of his cross-examination reveals that his deposition was not creditworthy at all and it was not safe to hold them guilty relying upon the same. Learned counsels submitted that although, the prosecution has come out with the story of illicit relationship between the appellants to establish the motive but, no cogent evidence was led to do so. They also argued that the learned trial Court has relied upon the recovery of incriminating materials at behest of the appellant-Anil Kumar @ Leela @ Liliya to connect them with the alleged offence but, the same was not reliable as there was lack of independent witnesses to the seizure memo and also for the reason that recovery was from an open place. They, therefore, prayed that the appeals be allowed, the judgement dated 21.02.2015 be quashed and set aside and they may be acquitted of the charges framed against them. Per contra, learned Public Prosecutor, opposing the submissions, contended that the learned trial Court has recorded [2026:RJ-JP:17698-DB] (4 of 9) [CRLA-468/2015] the finding of their guilt based on appreciation of cogent evidence available on record in right perspective and therefore, the appeals deserve to be dismissed. Heard. Considered. From the postmortem report of the body of the deceased- Shyam Lal (Ex.P30) as also from the testimony of Dr. Vikas Soral (PW11) and Dr. Ravish Yadav (PW14)-the Members of the Medical Board which conducted the autopsy, it is reflected that there were marks of multiple abrasions on both sides of neck at upper part and cause of death was asphyxia due to throttling. Thus, it is found to be an established case of homicidal death. To connect the appellants with the aforesaid offence, the prosecution has relied upon the testimony of Deepak Kumar (PW17)-son of the deceased and the appellant-Sunita @ Gyana as the sole eye witness. In his examination-in-chief, he has deposed that while sleeping in his room, he heard somebody calling his name at about 12:00-1:00 am whereupon, he went to his mother’s room which was found to be bolted from inside with light on. On knocking, somebody unlatched the room from inside and upon peeking through the door inside the room, he found the appellant-Anil Kumar sitting on the chest of his father and strangulating the neck but, he did not see his mother inside. He has further stated that he screamed but, the appellant-Anil Kumar threatened to kill him at Neem Ka Thana if he disclosed the incident to anybody. He has further deposed that he went back to his room weeping and when he woke up at 4:30 am, he found the [2026:RJ-JP:17698-DB] (5 of 9) [CRLA-468/2015] appellant-Anil Kumar sleeping in his mother’s room but, his mother was not present. He has stated that thereafter, he went to his college and till Narnaul, the appellant-Anil Kumar also accompanied him in the train. He has specifically stated that his father and mother were on very good terms. However, during his cross-examination, contradicting his statement recorded under Section 161 CrPC (Ex.D5), he denied involvement of his mother- the appellant-Sunita @ Gyana in the offence. He has admitted that the appellant-Anil Kumar has also attended the condolence meeting along with his brothers. This Court finds his testimony to be totally unreliable for the following reasons:- (i) Although, he claimed to have witnessed the appellant-Anil Kumar committing murder of his father in the intervening night of 15th-16th October, 2013 at about 12:00-1:00 am but, in the first information furnished by Tarachand-brother of the deceased to the police station at 10:30 am on 16.10.2013, this fact was not disclosed; rather, even murder was not suspected. Further, another written report was submitted by Shri Tarachand on 20.10.2013 still, the incident was not narrated therein and a doubt only was cast on some unknown person. For the first time, this witness disclosed the incident to the police under Section 161 CrPC on 31.10.2013 and for this inordinate delay, no explanation much less plausible explanation was furnished. Further, he did not disclose this information to any of his family members including his mother or the police authorities which, indisputably, had met him on 16.10.2013 itself. (ii) So far as his defence of threatening by the appellant-Anil Kumar is concerned, as per his own [2026:RJ-JP:17698-DB] (6 of 9) [CRLA-468/2015] deposition, in the next morning, he had gone to his college and had met with his friends. Moreover, he was a grown up boy of 17 years at the relevant time. In view thereof, the reason offered to keep mum for a period of about 16 days does not appear to be convincing. (iii) In his examination-in-chief, although, he has stated that the room-the scene of crime, was latched from inside and upon knocking, somebody opened it; however, in the same breath, he has deposed that inside the room, only the appellant-Anil Kumar and his father were present with the appellant sitting on the chest of his father and strangulating the neck. This testimony renders it impossible for opening of the latch from inside either by the accused or by his father creating a serious doubt as to his credibility. (iv) He has claimed to have found the appellant-Anil Kumar sleeping in his mother’s room when he woke up in the next morning at 4:30 am which was highly improbable even if not impossible being against the natural human conduct. (v) He has claimed to have screamed upon seeing the aforesaid incident but, neither his mother nor, any member of the large family, as per the testimony of Sandeep (PW5)-his cousin, were living in the adjoining houses, came to the scene of crime. It is worthy to observe here that the incident occurred in a village in the dead night at about 12:00-1:00 am when there was complete silence and the scream by a grown up son seeing his father being murdered, would have travelled to the great distance in the natural course. (vi) Even after seeing his father being murdered by the appellant-Anil Kumar, he had gone back to his room and slept. Furthermore, in the morning, without even talking to his mother or visiting the room where his father was murdered, he had gone to his college in [2026:RJ-JP:17698-DB] (7 of 9) [CRLA-468/2015] the public transport, had interacted with his friends there-quite unnatural conduct. (vii) During his cross-examination, he has denied not to have made most of the allegations mentioned in his police statement (Ex.D5). Thus, his testimony suffers the vice of improvement and contradiction on material aspects of the case. The testimony of Sandeep (PW5)-another witness relied upon by the prosecution, is based on hearsay inasmuch as he has categorically stated that he was informed by Deepak of murder of his father by the appellants. Further, as already observed, even Deepak Kumar has not levelled any allegation against his mother. In view of the aforesaid, we are of the considered view that the prosecution has not been able to connect the appellants with the alleged offence through ocular evidence. So far as motive is concerned, it was the prosecution case that since, the appellant-Sunita had extramarital affairs with the appellant-Anil Kumar, they committed murder of Shyam Lal- husband of the appellant-Sunita; but, their star witness-Deepak Kumar (PW17) has not made any inculpatory allegation against his mother in his Court statement resiling from his statement recorded under Section 161 CrPC. It is very conspicuous that still the prosecution has not declared him hostile and has relied upon his testimony. Moreover, although, the prosecution has come out with a case that the appellants used to converse with each other over mobile phone but, the secondary electronic evidence tendered by them was not supported with a certificate under Section 65B of the Evidence Act rendering it inadmissible in [2026:RJ-JP:17698-DB] (8 of 9) [CRLA-468/2015] evidence. Therefore, we hold that the prosecution could not establish any motive behind the offence. Lastly, the prosecution has relied upon the recovery of a mobile phone and the identity card of the deceased on the disclosure statement made by the appellant-Anil Kumar. However, the same does not inspire confidence of this Court. Firstly, none of the panch witnesses to it was produced in the witness-box despite the same being the Police Constables. Secondly, recovery on 27.10.2013 was made from the nearby the place where the dead body of Shri Shyam Lal was found, but, the same was thoroughly searched on 16.10.2013 itself while preparing the site plan (Ex.P1). Thirdly, indisputably, it was an open place accessible to all and sundry. In the conspectus of aforesaid analysis of the evidence available on record, we are of the considered view that the prosecution has not been able to establish the charges levelled under Section 302 IPC or 201 IPC against the appellants and the appeals deserve to be allowed. Resultantly, the appeals are allowed. The judgement impugned dated 21.02.2015 passed by the learned Additional Sessions Judge No.2, Behror, District Alwar in Sessions Case No.1/2014 is quashed and set aside. The appellants are acquitted of the charges framed against them. They be set at liberty forthwith if not required to be detained in any other case. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellants namely 1. Sunita @ Gyana W/o Shyam Lal and 2. Anil Kumar @ [2026:RJ-JP:17698-DB] (9 of 9) [CRLA-468/2015] Leela @ Liliya S/o Late Shri Kallu Ram are directed to furnish a personal bond each in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in the event of Special Leave Petition being filed against the judgement or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. (BHUWAN GOYAL),J (MAHENDAR KUMAR GOYAL),J PRAGATI/34-35