1 2025:CGHC:52170-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1448 of 2024 Kuldeep Malekar S/o Amolsingh Malekar Aged About 25 Years R/o Ward No. 5, Tikrapara, Dondilohara, P.S. Doundilohara, District- Balod, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through, S.H.O. Police Station Doundilohara, District Balod, Chhattisgarh. ... Respondent For Appellant : Mr. B.P.Singh, Advocate. For Respondent/State : Mr. S.S.Baghel, Deputy Government Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Bibhu Datta Guru, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 27/10/2025 1 Heard Mr. B.P.Singh, learned counsel for the appellant. Also heard Mr. S.S.Baghel, learned Deputy Government Advocate for the State/respondent. 2 This criminal appeal is directed against the judgment of conviction and order of sentence dated 15.07.2024 passed by the the learned First Additional Sessions Judge, Balod, District Balod, in Sessions Trial No. 39/2020 whereby the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code (for short, the 2 IPC) and sentenced to undergo rigorous imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 1 month. 3 Today, the matter is listed for hearing on IA No. 1/2024, which is an application for suspension of sentence and grant of bail. However, with the consent of learned counsel appearing for the parties, the matter is heard finally. 4 The appellant/convict alongwith two other co-accused namely Amol Singh Malekar and Smt. Usha Malekar were charged for the offence under Sections 304(B)/34, 302/34 of the IPC and Section 4 of the Dowry Prohibition Act alleging that they being the husband, mother-in-law and father-in-law of Maleshwari Malekar (hereinafter referred to as the deceased), formed a common intention to cause dowry death of the deceased and in furtherance of the said common intention, they tortured her physically and mentally demanding dowry due to which on 30/31.8.2019, within 7 years of marriage, the deceased died in circumstances other than normal. In this way, the accused caused dowry death of the deceased. 5 It is an admitted fact in this case that the deceased was married to the appellant/convict on 10.5.2019 and she died on the intervening night of 30/31.8.2019 at her in-laws' house. 6 The case of the prosecution is that on 31.08.2019, Hinsuram (PW-1) father of the deceased, informed the Dandilhohara Police Station that his son-in-law i.e. the appellant-Kuldeep Malekar, had called him on phone to inform that his daughter, i.e. the deceased was not talking and was not moving her arms and legs. She had been taken to the Government Hospital, Dandilhohara, for treatment. He then went to his daughter's 3 house in Dandilhohara with his wife, Santkumari (PW-2) and found that the deceased had died. She had been taken out of the room and laid in the veranda. He stated that he had no information about the deceased’s death. Based on this information, a Merg bearing No. 50/2019 was registered under Section 174 of the Cr.P.C. and the matter was taken up for investigation. An inquest was prepared in the presence of the witnesses, the scene of the incident was inspected, and a post-mortem examination was conducted. During the inquest, the deceased's father, Hinsuram (PW-1), and mother, Santkumari (PW-2), were present. Based on the statement of brother Numesh (PW-3), it was found that the deceased's in-laws, including her husband i.e. the appellant, mother-in- law, and father-in-law, used to harass and torture her with cruelty for dowry, demanding money, and then strangulated her to death. A case was subsequently registered against the accused under sections 302, 304B, and 34 of the IPC and section 4 of the Dowry Prohibition Act. During the investigation, the crime scene was inspected, a site map was prepared, statements of witnesses were recorded, and a memorandum of the appellant-Kuldeep was recorded, and a mobile phone, a scarf, household items, and a wedding card from Hinsuram were seized. The Superintendent of Police, Balod obtained information from the Medicolegal Institute of Balod regarding the nature of the deceased's death, in which they prima facie wrote that the death of the deceased was of "homicidal" nature and after the postmortem, the viscera of the deceased was seized and sent for chemical examination and after the remaining necessary investigation, the charge sheet was presented in the Court of Judicial Magistrate, First Class, Daudilohara, District-Balod. The case was committed to the Court of Sessions for trial. 4 7 Charges were framed against the appellant and other co-accused persons for the offence under Sections 304(B)/34 and 302/34 of the IPC and Section 4 of the Dowry Prohibition Act. The appellant/convict as well as the co-accused abjured the guilt and prayed for trial. 8 To prove the offence alleged against the appellant, the prosecution examined the witnesses namely; Hinsuram Gaundhare (PW-1), Santkumari Gaundhare (PW-2), Numesh Kumar Gaundhare (PW-3), Smt. Radhika Binjhekar (PW-4), Maan Singh Deshlahre (PW-5), Gyandas Gendre (PW-6), Chaitram Malekar (PW-7), Bhojlal Binjhekar (PW-8), R.P.Yadav (PW-9), Kishanlal Sahu (PW-10), Dr. N.S.Bhandari (PW-11), Kartikram Pisda (PW-12), Smt. Namita Markole (PW-13), Dr. Vikas Kumar Dhruv (PW-14) and Dr. Alim Khan (PW-15) and exhibited as many as 34 exhibits. 9 Upon examination of the accused under Section 313 of the Cr.P.C. the accused/appellant alongwith other co-accused persons pleaded innocence and stated that they had been falsely implicated. The appellant had taken a plea that when the deceased had returned from her parental house, she was having severe cough and cold and she was being treated by Dr. Patel of Sub Health Centre, Pirid and when the disease aggravated, she was taken to the Hospital at Daundi Lohara where she died. In their defense, they got Mrs. Shakuntala Jagnayak (DW-1) examined. 10 The learned trial Judge, after considering the evidence on record, convicted and sentenced the appellant/accused-Kuldeep Malekar as detailed in the opening paragraph of this judgment but acquitted the other two co-accused Amolsingh Malekar and Smt. Usha Malekar. Hence, the present appeal by the appellant/convict-Kuldeep Malekar. 5 11 Mr. B.P.Singh, learned counsel for the appellant submits that there is no eye witness to the incident. Merely on the basis of suspicion, the appellant has been roped in this case. There was no motive for the appellant to cause death of the deceased. The cause of death has also not been clearly opined by the Doctor conducting the postmortem and as such, it cannot be held that the death was homicidal in nature. The alleged incident occurred on 31.08.2019 but the written complaint was given by the father of the deceased at a much later stage on 18.03.2020 i.e. after a delay of about 6 months and 21 days which casts serious doubt on the prosecution story. The relationship between the appellant and the deceased was cordial. There is no clinching evidence present on record on the basis of which the appellant could be convicted. Further, Dr. N.S.Bhandari (PW-11), in his deposition has stated that there were no external injury on the body of the deceased and as such, there was no probability of murder or accident and the cause of death could be any disease also. Hence, the appellant deserves to be acquitted. 12 On the other hand, Mr. Shailendra Sharma, learned counsel appearing for the State/respondent submits that the learned trial Court has rightly arrived at a finding with regard to the guilt of the appellant and the learned trial Court was fully justified in convicting and sentencing the appellant for the offences in question. The judgment is based on evidence available on record and as such, the same does not warrant any interference and the appeal deserves to be dismissed. 13 We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 14 In the present case, the written complaint (Exhibit P/1) was made by the 18.03.2020 by the father (PW-1) of the deceased whereas the incident is 6 alleged to have taken place on 30/31.08.2019 and the FIR (Exhibit P/15) was registered by the Police on 21.03.2020. 15 The postmortem was conducted on 31.08.2019 at 3 p.m. by Dr. Geeta Mishra, Medical OfÏcer, Community Health Centre, Deori Bangla, District Balod. However, she has not been examined by the prosecution. The postmortem report (Exhibit P/18A) states that the cause of death could not be ascertained on the basis of postmortem examination only and as such, viscera were preserved and sent for further FSL examination for opinion and needful. The said Doctor did not found any external injuries on the body of the deceased as per the report (Exhibit P/33). 16 A query was sent by the Station House OfÏcer, Police Station, Daundilohara, District Balod on 19.03.2020 to the Dr. N.S.Bhandari (PW- 11) Medical OfÏcer, Community Health Centre, Daundilohara, wherein the following queries were made: (I) what were the external and internal finding of neck during postmortem examination (ii) what was the sign of struggle, if any (iii) photograph of deceased, if taken during autopsy (iv) C.D. of videography if done during autopsy. The said query was replied to by PW-11 stating that no sign of struggle was found, no photographs or videography was done during the autopsy. However, it was also stated that neck veins were found engorged and frothing was present in trachea. 17 The viscera of the deceased was also examined at FSL, Raipur but no poisonous substance has been found in the body of the deceased. As such, the Superintendent of Police, Balod, on 05.03.2020, wrote to the Head of Department and Incharge Director, Medico Legal Department, Medical College, Raipur to give a clear opinion with regard to the nature and cause of death of the deceased. The said query was responded to by Dr. Vikas Kumar Dhruw (PW-14) opining that overall consideration of 7 available documents, he was of the opinion that the deceased died due to asphyxia as a result of compression of neck and that the death appeared to be homicidal in nature, however to finalise the case, circumstantial evidence was required to be taken into consideration. 18 The conviction of the appellant is based on circumstantial evidence and there is no eye witness to the incident. The learned trial Court has convicted the appellant on the basis of the evidence of Dr. Vikas Kumar Dhruw (PW-14) who has stated in response to the questions asked by the learned trial Court that since froth was found in the trachea of the deceased, it could be said that the deceased died of asphyxia. This witness further clarified that when neck of a person is compressed, it causes compression in the lungs which causes froth in the trachea and whenever any person dies of strangulation, in all such cases froth would be present. 19 The father of the deceased, Hinsuram (PW-1) has deposed before the trial Court that when he saw the dead body of his daughter, he suspected that she would have been murdered as froth was coming out her mouth and there were abrasion marks and swelling on the neck. However, the fact of the matter is that the written complaint (Exhibit P/1) was made by the said witness after more than 6 months of the incident and as such, his evidence becomes unreliable. Had it been a case that the said witness would have found the said circumstances, he would have immediately lodged the complaint but the complaint was made only on 18.03.2020 when the incident had taken place on 31.08.2019. On the contrary, in the cross examination, this witness had admitted that no demand of dowry was made either by the appellant or his parents either at the time of the marriage or after the marriage. He further admitted that the relationship between the two families were cordial and the deceased 8 used to visit their house and that she used to live with her husband peacefully. He also admitted that they had not made any complaint within their society or to the police prior to death of the deceased. 20 The mother of the deceased, Santkumari (PW-2) has deposed that in their society, there is no custom of demanding dowry during the marriage but gifts are given as per their own volition. The brother and sister of the deceased, namely Numesh Kumar Gaundhare (PW-3) and Smt. Radhika Binjhekar (PW-4) have deposed that the marriage of the deceased and the appellant was solemnized peacefully without any hindrance and that no dowry was demanded by the appellant. However, they had not made any complaint either orally or in writing in their society or to the Police Station. 21 The prosecution has tried to built up its case that there was a motive for the appellant to commit the offence of murder of the deceased as she did not fulfill his demand of dowry. However, from the evidence of the father (PW-1), mother (PW-2), brother (PW-3) and sister (PW-4) of the deceased, it is quite clear that no such circumstances existed or that the deceased was subjected torture or harassment on the pretext of demand of dowry. Had it been a case that the deceased was subjected to cruelty, either the deceased herself or her parents, brother or sister would definitely had made a complaint either to the police or at least within their society but such is not the case. There is a long delay of more than 6 months in lodging the written complaint with the police and even the initial postmortem report does not suggest anything which may lead to the conclusion that the death of the deceased was homicidal. Only when queries were made by the police, the fact of presence of froth in the trachea of the deceased was discovered. The prosecution has utterly failed to prove the motive behind causing murder of the deceased. 9 22 The seizure of the scarf by which allegedly the appellant had committed murder of the deceased by strangulation, is also of no assistance as there were no external injuries found on the neck of the deceased in the postmortem report. 23 Further, the parents, brother and sister of the deceased have not explained as to why they did not make any complaint either in their society or to the police if the deceased was subjected to cruelty and that the appellant or his family members were making demand of dowry which makes their entire deposition suspicious and exaggerated. Furthermore, the written complaint was made after a long period of 6 months. If the death of the deceased was suspicious, any of the relative of the deceased could have made the complaint or lodged the FIR at the first instance and would not have waited for more than six months. The father of the deceased has admitted that before making the written complaint (Exhibit P/1), he had not made any complaint to anyone. The conduct of the father of the deceased appears to be an afterthought to anyhow implicate the appellant in the case in hand. 24 From the aforementioned facts and circumstances of the case, we are of the opinion that there is no corroborative evidence led by the prosecution to connect the appellant with the offence in question and the appellant deserves to be given the benefit of doubt. 25 For the foregoing reasons, criminal appeal filed by the appellant- Kuldeep Malekar is allowed and his conviction and sentence under Section 302 of the IPC, are hereby set aside. The accused / appellant is acquitted of the charge levelled against him. He shall be set at liberty forthwith if no longer required in any other criminal case. 10 26 Keeping in view the provisions of Section 437-A of the Cr.P.C. (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the accused-appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Cr.P.C. for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 27 The trial Court record along with a copy of this judgment be sent back forthwith to the trial Court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.10.29 12:35:12 +0530