S.D. Jha, J.
1. The appellant-State of M.P. through this appeal against acquittal, challenges judgment dated 29-2-88 delivered by II Additional Sessions Judge Dewas in Sections Trial No. 12 of 1985 (State v. Ashok and others) acquitting the respondents accused of charges under Sections 306, 498A IPC and Section 4 of the Dowry Prohibition Act 1961.
2. Accused Ashok is the son of accused No. 2 Anokhilal and accused No. 3 Sharda is mother of accused Ashok. Accused N01. 4, 5 and 6 namely Giru alias Girjesh, Kiran find Madhu alias Munni are sisters of accused Ashok and daughters of accused No. 2 Anokhilal and No. 3 Ms. Sharda. Prosecution case is that deceased Kamini alias Shobha daughter of Surendrakumer (P.W. 1) was married to accused Ashok, on 20-1-84. la the marriage two gold rings, one small almirahs and some utensils were given. According to the prosecution, accused Ashok and his parents and sisters used to harass Kamini laying that gold rings were less in weight and almirah was small. It ii also alleged that they used to make grievance about other goods having been not given in dowry. It is also alleged that accused Ashok and other accused persons bad illtreated Kamini and earlier Ashok had caused injury to Kamini on her head. Kamini complained to her father Surendrakumar and other relatives when she went to her parent's place about illtreatment by the accused persons. It is also alleged that the accused had illicit relations with another woman.
3. Due to this illtreatment Kaminibai on 17-9-84 it her husband's place, took poison. Accused Ashok took her to hospital at Dewas and later she was brought to M.Y. Hospital Indore where she died on 18-9-84. Arun Khemaria (P.W. 9) the Town Inspector on 21-9-84 registered marg 148/84. Inquest was held on the dead body of Kamini and then it was sent for post mortem examination. Her viscera was taken out and forwarded to the Chemical Examiner Sagar. Arun Khemaria (P.W. 9) on coming to know of the illtreatment imputed to deceased Kamini as also demand of dowry and the lapse of lime since her marriage drew FIR Ex. P/10, investigated the offence and put up challan against the accused persons for offences as stated above. It appears that in the first round the accused persons were by order dated 31-7-85 discharged of the offences in respect of which they were prosecuted, by the first Addl. Sessions Judge Dewas. This order of discharge was set aside by this Court by order dated 2 7-86 in Criminal Reunion No. 311 of 1985. Thereafter by order dated 9-7-86 the first Addl. Sessions Judge Dewas framed charges; under Section 4 of the Dowry Prohibition Act 1961, of cruelty under Section 498A and under Section 306 IPC for having abetted in commissions of suicide by Kaminibai. Accused pleaded not guilty to the charges. In his examination accused Ashok while admitting marriage with Kamini on 20-1-84 and relationship of the parties with one another, denied all the material allegations. Ha stated that he never indulged in any marpit with Kamini nor demanded any dowry. He also stated that none of the members of his family ever demanded any dowry from Kaminibai or from her relatives and illtreated her in any way. Ha had been falsely implicated by oil father Surendra Kumar because his daughter had died due to spirit of vengeance. Other accused persons more or less took up the same plea. They examined Naib Tahsildar Pathak (D.W. 1) to prove the dying declaration Ex. D12 wherein the deceased had not implicated any of the accused. At the conclusion n of the trial, the Additional Sessions Judge by the impugned judgment found death of Kamini accidental and not suicidal. He found other charges also not established. He, therefore, acquitted the accused persons. Aggrieved by the Judgment the State has come up in appeal.
4. It may he stated at the outlet that in this Court father of deceased Kamini namely Surendrakumar and the accused have filed applications for composition I.As. 1421/90 and 1422/90 praying for suitable orders on these applications. The consideration of these applications and orders on them were deferred to the time of final hearing.
5. At the hearing of the appeal Shri S.K. Pawnekar Govt. Advocate for the State, Shri S. K. Vyas Council for respondents-accused and Shri G. Desai for the complainant were heard. While Shri Pawnekar argued that on the material adduced by the prosecution, the accused -respondent ought to have been convicted und sentenced in accordance with law, Shri S K. Vyas for the accused-respondents submitted that the prosecution evidence adduced in the case did not bring home the charged against the accused-respondents. He emphasised that while the present incident had taken place on 17-9-84, Section 8A of the Dowry Prohibition Act 1961 (hereinafter called 'the Dowry Act') had been inserted by Act No. 43 of 1986 with effect from 19-11-86. in the present case, eight of the prosecution witnesses had been examined by 16-11-86, the presumption arising under Section 8A of the Dowry Act coming into force from 19-11-86 could not be pressed into service in the present case when the incident had taken place on 17-9-84. About Section 113A of the Evidence Act, he submitted that Section 113A providing for presumption as to abetment of suicide by a married woman inserted in Evidence Act (Act No. 1 of 1982) by Criminal Law (Second Amendment Act of 1983) was applicable only in case of suicide by a married woman. In the instant death of Kamini was not found by the court below by to be one of suicide but one of accidental death. He submitted that the finding of accidental death recorded by the court below was fully justified. Proceeding further, he submitted that as committing of suicide by Kamini is not held established there can be no question of abetment of suicide punishable under Section 306 IPC by the accused-respondents. About charge under Section 4 of the Dowry Act- penalty for demanding dowry-Shri Vyas emphasised that according to the prosecution evidence, there was no demand of dowry at the time of marriage which if admitted by Surendra Kumar (P.W. 1) father of the deceased herself.
As for subsequent demand testified to by relatives of the deceased attributing the lame to the statement of the deceased, he submitted that definition of dowry contained in Section 2 of the Dowry Act came to be enlarged by Act No. 63 of 1984 Section 2 with effect from 2-10-85. By the said amendment the words 'or any time after the marriage' were added. As the present incident took place on 17-8-84 and the marriage had taken place earlier long before the amendment enlarging scope of definition of dowry came into force even if the prosecution story as to the alleged demand be taken to be true that would not help the prosecution. He however submitted that finding of the trial Court as to demand of dowry not having been established on evidence accused was fully justified. It was also submitted that the story of demand of dowry attributed to Kamini in her statement to relatives was not admissible in evidence under Sub-section of Section 2 of the Dowry Act.
6. Now, taking up first the charge under Section 306 IPC abetment by accused to suicide by deceased Kamini, in order to bring home the charge under this lection, it is necessary to establish that Kamini committed suicide. The point has been discussed by the trial Court against point for determination No. 1 in paras 22 to 31 of the Judgment and the trial Court found that death of deceased Kamini was accidental (AKASMIK AUR DURGHATNAJANYA). Material evidence on the point consist in statement of Dr. Ramesh Khajwania (P.W. 7) who examined Kamini on 17-9 84 when she was brought to him by her husband, admitted her into intensive care unit and thereafter forwarded her for treatment to M.Y. Hospital Indore. He also recorded dying declaration Ex. P/7 of Kamini (which would be discussed latter). Dr. K.K. Saxena (P.W. 11) who conducted post mortem on the dead body of Kamini on 18-9-84 as per post mortem report Ex.P/19-A which was written in his presence by Dr. Riyaz Hussain and Dr. A.K. Guru (P.W. 10) Dy. Director of Forensic Science Laboratory Sagar who examined viscera of deceased Kamini, Dr. Saxena could not express any definite option as to cause of death of Kamini and sent viscera of the deceased for chemical examination to Forensic Science Laboratory Sagar. Dr. A.K. Guru (P.W. 10) as per report Ex. P/18 found pesticide in viscera (Arts. B and C) and stomach contents (Art. E) of deceased Kamini. This evidence establishes that Kamini died due to insecticide. The question however, still to be examined is whether the (Kamini) look it voluntarily in order to commit suicide or whether she happened to take it inadvertently as found by the trial Court.
7. There is no direct evidence on the point as to how Kamini happened to take insecticide-accidentally or suicidally. There is no witness on the point. The evidence on the point consists in dying declarations of Kamini Ex. P/7 recorded be Dr. Khajwania (P.W. 7), in case diary statement Ex. D/10 recorded by the Investigating Officer Arun Khemaria (P.W. 9) and Ex. D. 12 recorded by Naib Tahsildar Pannalal Pathak (D.W. 1). The trial Court rightly excluded from consideration the dying declaration Ex. D. 12 recorded by Naib Tahsildar Pannalal) Pathak (D W. 1) and Ex. D. 10 which were not proved by the prosecution, but was exhibited by the defence.
8. Coming to the dying declaration Ex. P/6 recorded by Dr. Khanjwani a (P.W.7) Kamini therein stated that she was suffering from pain in her neck and insisted of tablet for pain in the neck she inadvertently took another tablet. Some ten minutes after when she felt nervousness (JEE GHABRAYA) then the narrated the fact to her mother-in-law and thereafter her husband Ashok brought her to the hospital. There is nothing in this dying declaration to show that deceased Kamini committed suicide. The dying declaration which is the only evidence in the case shows that deceased Kamini happened to take tablet inadvertently.
9. In the memo of appeal a ground was urged that the Investigating Officer and Dr. Khajwania had conspired with the accused and this fictitious dying declaration was attributed to Kamini when she had not made any such dying declaration. No such argument had been advanced before the Court. Even otherwise, there is no material on record to come to any such conclusion. Before the lower Court it was also argued that signatures on dying declaration (Ex. P/7 were not compared with the letters Ex. D1 and D2 of Kamini. This point has been discussed by the trial Court in para 26 of the judgment. This argument is liable to be rejected. Even otherwise if this dying declaration is excluded there is no evidence worth mention to prove mode.
10. It was argued by Shri Pawnekar that Kamini who was married on 20-1-84 committed suicide in September 1984. Therefore, presumption under Section 113A of the Evidence Act as to abetment of suicide by 9. married woman should be raised against the accused-respondents. Suffice it to lay that presumption would arise if it is shown that the married woman had committed suicide within a period of seven years from the date of her marriage. There is nothing 10 show that Kamini committed suicide. Therefore, presumption under the provision would not help the prosecution. The finding on the point, therefore, in para 33 of the Judgment at the trial Court holding the presumption as not being applicable in the present cafe, would have to be upheld. Therefore, acquittal of the accused-respondents of charge under Section 306 IPC must be and is hereby upheld.
11. Coming next to the charge under Section 4 of the Dowry Act, according to Surendra Kumar (P.W.I) para 19 of his deposition, in the marriage there was no demand of dowry. According to the prosecution case, Kamini after marriage when came to her parent's house complained to Surendra Kumar and other relatives that accused Ashok and his other relatives made a grievance about gold ring being fake and small as also the almirah being small. As already observed, Kamini was married on 20-1-84. The definition of dowry contained in Section 2 of the Dowry Act at that time did not have the words 'or any time after the marriage'. These words came to be inserted with effect from 2-10-85 by Act No. 63 of 1984. Kamini, as already observed, died on i8 9-84. Assuming the version given by Kamini to her father Surender Kumar (P.W. 1) and her other relatives examined by the prosecution be taken to be correct and believable, which the trial Court found not believable primarily for the reason that the report in the police was not lodged, having regard to definition of dowry as obtaining at the relevant time as aforesaid, the prosecution cannot derive any benefit from the same, as at the relevant time such demand made after marriage was not included in the definition of dowry. It is well settled that no person shall be convicted of any offence except for failure of law in force at the time of commission of the Act as stipulated in Article 20 of the Constitution of India. Having regard to this, acquittal of the accused-respondents of the charge under Section 4 of the Dowry Act would have to be and if hereby upheld.
12. It was argued by Shri Pawnekar that presumption under Section 8A of the Dowry Act inserted by Act No. 43 of 1986 with effect from 19-11-86 should be pressed into service against the accused-respondents. This argument ii mentioned only to be rejected. Assuming that as a rule of evidence it could be applied even to the old pending cases on the date of coming into force of this amendment, it would suffice to lay that before thin rule; of evidence can be used, the act must constitute demand of dowry within the definition let out in Section 2 of the Dowry Act. When the alleged demand at the relevant time did not fell within the definition, this rule of evidence as to presumption and placing burden of proof on the accused cannot be made use of against the accused. The argument is rejected.
13. Before discussing the charge under Section 498A IPC mention may be made of Shri Pawnekar's arguments that the accused should be convicted of the offence of dowry death punishable under Section 304B IPC. He argued that Kamini died otherwise than in normal circumstances within 7 years of her marriage and the evidence showed that she was subjected to cruelty or harassment by her husband and his relatives in connection with demand for dowry and, therefore, bar husband and his relatives should be deemed to have caused her death. He also argued that offence of dowry death punishable under Section 304B IPC was a minor offence with respect to charge under Section 306 IPC and there is no legal bar in altering the charge into one under Section 304B IPC and convicting the accused hereunder. Suffice it to say that Section 304B IPC was inserted With effect from 19-11-86 vide Act No. 43 of 1986 and Kamini died on 18-9-86, What has been stated above with reference to offence under Section 4 of the Dowry Act would equally apply to this argument also. This argument is also rejected.
14. Coming next to charge under Section 498A IPC, the prosecution for the purpose of proof of this charge relied on statement made by Kamini before her death to her father Surendra Kumar (PW 1), Narendra Kumar (PW 2), cousin of Surendra Kumar, uncle Baburao (PW 3), brother Ashok Kumar (PW 4), father's neighbour Pramod Chandra (PW 5) and her mother (mother not examined by the prosecution). The trial Court discussed the question of demand of dowry and cruelty by the accused persons with Kamini against points for determination Nos. 2 and 3, in para 10 to 21 of the judgment. He disbelieved the evidence for reasons of omissions, contradictions, inconsistencies end discrepancies as also failure to lodge report with the police. While cases of this nature, parents and relatives of bride may not think of rushing to the police to lodge a report, the question still to be considered is whether the statement attributed to Kamini and made to these witnesses would be admissible in evidence. Sub-section of Section 32 of the Indian Evidence Act alone would appear relevant for (he purpose of present appeal which rends as under :-
32. Statements, written or verbal, or relevant facts made by a pence who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expunge which under the circumstances of the case appears-to the Court unreasonable, are themselves relevant facts in the following cases :
(1) When the Statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made, under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.
In the present case, it has already been held that death of Kamini is not proved to be suicidal. Having regard to the observations of the Supreme Court in Motisingh v. State of U.P., AIR 1964 SC 900 to the effect that Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement as to the cause of his death, or as any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent-State, the complaint made by deceased Kamini to her father and other relatives referred to in opening part of this para would not be admissible in the facts and circumstances of the case as evidence of illtreatment by Ashok and his relatives with deceased Kamini so as to bring home the charge of cruelty punishable under Section 498A IPC.
15. Cases frequently arise when wife in her declaration made before death exemplates husband accused and his relatives or the wife's death is not relatable to any act of the accused or his relatives (as in the present case) but credible witnesses coma forward to state that wife had earlier complained of illtreatment and torture at the hands of the accused and his relatives. In view of Supreme Court decision cited above, such earlier statements made by wife in the eventuality as aforesaid would not be admissible as dying declaration under Sub-section 1 of Section 32 of the Evidence Act, 1872. It is primarily for the executive to consider whether any amendment in law in necessary to make such statements regarding cruelty and torture by husband and his relatives narrated by the wife to any person, relevant and admissible as evidence.
16. Besides the foregoing, the approach of this Court while dealing with an appeal against acquittal is well settled. In Tota Singh and Anr. v. Slate of Punjab the principles of interference by appellate Court in appeal against acquittal have been enunciated as in the following words :-
'This Court has repeatedly painted out that the mere fact that the appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an older of acquittal ii circumscribed by the limitation that no interference is to be made with the order of acquittal union the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two view are possible on an appraisal of the evidence adduced in the cue and the court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the court below on its consideration of the evidence in erroneous.'
17. As a result of the foregoing discussion, finding no force in appeal, it if dismissed.