JUDGMENT
S.C. Jain, J.
(1) The facts giving rise to this appeal are that Masroor Ahmed appellant was married to Kaneez Fatima (deceased) in January, 1985 in accordance with Muslim rites and ceremonies. She remained well for about one year with her in-laws and resided at C-193, Welcome, Seelampur. Kaneez gave birth to a baby after one year of the marriage and on the 6th day of the birth of the child, there was a function called Chatti Chuni, the mother of Kaneez took to the house of Kaneez gold rings weighing 2 grams, silver paijebs weighing 2 tollas and 25 utencils, clothes etc. of the total value of Rs. 3,000.00 as per custom. She gave the articles to the appellant Jamani Begum, mother-in-law of Kaneez. Kaneez who was residing on the ground floor with her husband requisitioned the articles in her room, which annoyed Jamani Begum. Since that day, according to the prosecution, some quarrel started In the house. It is also urged that Masood Ahmed (father-in-law of the deceased) and Jamani Begum (mother-in-law of the deceased Kaneez) asked Masroor Ahmed (husband of the deceased) to get Rs. 10.000.00 and a colour Tv from the parents of the deceased. Masroor along with Kaneez came to the house of Kanez’s parents, where Masroor demanded Rs. 10,000.00 to do some business. On 24.1.1988 the deceased along with her husband visited her parents’ house and told her parents that her mother-in-law had quarrelled with her and spitted on her face in the presence of her husband, who kept mum. In the evening, her husband asked the deceased to accompany him back to her in-laws house, but she refused. Masroor left her and next day, as per the prosecution version, Kaneez came to her in-laws house of her own at 10.30 a.m. and at 11 a.m. or so, she committed suicide by burning herself in the house.
(2) The charge against the appellants, namely, Masood Ahmed, Masroor, Jamani Begum, Zuber Ahmed @ Pappu is that at C-193, Welcome, Seelampur, within the jurisdiction of police station Shahdara, during a period of two years till 25.1.1988, they in furtherance of their common intention subjected Kaneez Fatima to cruelty and caused harassment to her and that on 25.1.1988 death of Kaneez Fatima occurred due to burning, on being subjected to cruelty and harassment and demands of dowry. They were charged under Section 498A/34 read with- Section 304B/34 IPC. They pleaded not guilty to the said charge and claimed trial. During trial, the prosecution examined 23 witnesses including parents of the deceased Gulam Mohd and Islam Fatima. The trial Court believing the prosecution version as correct, found all the appellants guilty for the offences under Section 498A/34 Indian Penal Code and Section 304B/34 Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2000.00 under Section 498A/34 IPC. Under Section 304B/34 Indian Penal Code they were sentenced to undergo 7 years rigorous imprisonment. Both the substantive sentences were ordered to run concurrently.
(3) Aggrieved, the appellants have filed this appeal. According to the counsel for the appellants, in order to bring a case under Section 304B ipc it is essential to prove that death of a woman has been caused by burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.
(4) Counsel for the appellants drew my attention towards the statement of the witnesses examined In this regard. Gulam Mohd, PW1 is father of the deceased and Islam Fatima is the mother of the deceased. In the statement of both these witnesses it has not come, as per the learned counsel, that soon before her death, she was subjected to cruelty or harassment by the appellants for or in connection with any demand for dowry. In the statements of Mohd Mian PW2, Matloob Ahmed PW7, and Hasan PW9, Khursheed Ahmed PW10 and Aziz Khan Public Witness Ii, who are neighbours of the parents of the deceased, it has also not come that there was any harassment or cruelty to the deceased on account of any demand of dowry. They have only stated about some Panchyat but in that Panchyat there was no mention about the demand of dowry. The learned counsel further submitted that the witnesses from the neighborhood where the incident took place, namely, Ulfat, PW4, Sanjida, PW5, Tehsina, PW6, have not supported the case of the prosecution in this respect. The learned counsel also drew my. attention to the statement Ex. PW12/A made by the father of the deceased on the basis of which Fir was recorded. In this statement also there is no mention about the cruel treatment on the part of the appellants for or in connection with any demand for dowry. At the most, it is a case under Section 498A IPC. Learned counsel submitted that Masroor and his younger brother Zuber Ahmed @ Pappu are in jail for more than three years, whereas Masood Ahmed and Jamani Begum, the parents-in-law of the deceased are old persons and they have remained in jail for about two years. According to the learned counsel, no case under Section 304B Indian Penal Code is made out against the appellants and at the most a case under Section 498A/34 Indian Penal Code is made out, and the sentence which they have already undergone is more than enough to meet the ends of justice.
(5) Shri R.N. Kapoor App submitted that evidence as a whole has to be seen and from the evidence it is apparent that after the birth of the child sometime in 1986 the deceased got cruel treatment at the hands of the appellants. According to the App one day prior to this incident when she left for the house of her parents she was spitted on her face by her mother-in-law and she was cruelly treated by other appellants. In the night of 24.1.88 when the husband went to take her to her parents house, she did not accompany her husband on account of harsh treatment towards her. Next day when she returned to her in-laws she was found in burnt condition at 11 a.m. On receipt of information of death father of the deceased immediately rushed to the police station and lodged a report in a natural way and it was recorded as Ex. PW12/A. In that report according to the App all the detail of the demand of dowry could not have been given. According to the App demand for Rs. 10,000.00 for the business of the husband of the deceased and demand of colour Tv and return of the house to her in-laws are demands for dowry and on account of non fulfillment of these demands the deceased was treated cruelly resulting in her death and the case is fully covered under Section 304B/34 1PC.
(6) I have given my considered thought to the submissions made by the counsel for the appellants and App and gone through the record. Section 304B Ipc provides that where the death of a women is caused by .any burns or bodily injury or otherwise than under normal circumstances within 7 years of her marriage and that soon before her death she was subjected to cruelty and harassment by the husband or his relatives in connection with or for demand of dowry such death shall be dowry death and such husband or relative shall be deemed to have caused her death. A perusal of this Section shows that four ingredients have to be satisfied before punishing an offender under Section 304B Ipc that is the woman should have died by burns or bodily injury or otherwise than in normal circumstances ; such death should have occurred within 7 years of her marriage ; she must have been subjected to cruelty or harassment by her husband or any relative of her husband and such cruelty or harassment should be in connection with or for a demand of dowry. As far as this case is con- cerned, the fourth ingredient i.e. cruelty or harassment in connection with or for demand of dowry has not been established on record on the basis of the evidence available. It has come in the statement of Gulam Mohd father of the deceased that after the marriage she was residing with her husband and there was no quarrel. According to him the house C-193 Welcome, Seelampur was in the name of his daughter but the parents of the husband wanted the house to be retransferred in their names. There is nothing on record to prove that this house was ever transferred in the name of the deceased by her in-laws or that any document was registered in her name. As no such document was produced on record and even if there was such a demand that cannot be said to be in connection with or for any demand for dowry. The house belongs to the parents of the husband and if they wanted to take it back, it cannot be said to be in connection with or for demand of dowry. If the harassment has taken place on that account that will not be covered under Section 304B IPC. Second point is regarding the demand for .Rs.l0,000.00 . No date and time has been given about this demand but it has come in the .statement of PW1, Gulam Mohd that six months before her death, she stated that her husband was demanding Rs. 10.000.00 for his business. This is also not in connection with or for demand of dowry and if there was any harassment on that account that cannot be said to be in connection with or for demand of dowry. The third thing is regarding the demand of colour TV. No date and time has been mentioned when it was demanded. When they were happy for one year after their marriage, there was no occasion for making demand for TV. If it was, it cannot be said to be in connection with or for demand of dowry. Mere alleging a thing without any attempt to substantiate the same cannot take the place of proof. The witnesses from the neighborhood have not supported the case of the prosecution in this regard. Mohd Mian, PW2, Matloob Ahmed, PW7,Hasan,PW9.Khursheed Ahmed, PW10, and Aziz Khan, PW11, who are neighbours of the parents of the deceased have also not been able to satisfy the ingredients of 304 B Indian Penal Code in this case. Finding of the trial Court holding the appellants guilty under Section 304B/34 Indian Penal Code cannot be sustained on the basis of evidence available on record and the same is hereby set aside. However, from the statement of Gulam Mohd PW1, Islam Fatima, PW8, Mohd Mian, PW7, Hasan, PW9, Khursheed Ahmed, PW10, and Aziz Khan, Pwi I, it is evident that the deceased was treated cruelly by her husband and his relatives who are the appellants in this appeal before me. PW1 Gulam Mohd father of the deceased and PW8 Mst Islam Fatima, mother of the deceased have stated that their daughter was residing at C-193 Welcome, Seelampur with her in-laws and the house was in the name of their daughter. There was no quarrel earlier but when the parents in-law of the deceased wanted the deceased to transfer the house in their names and the deceased refused to transfer the same, that led to the quarrel between them. It has also come in the statement that six or seven months before the death of their daughter, the deceased told that her husband wanted to do some business and demanded Rs. 10.000.00 for that purpose, but they showed their inability, which also led to the cruel treatment towards the deceased. They have also stated that her in-laws also wanted a colour TV. Though it has not been proved on record from the witnesses examined in this regard that these demands were in connection with or for demand of dowry, but thing is apparent that harassment was caused to the deceased and she was treated cruelly because of the difference between the deceased and the appellants. One day prior to the incident, i.e. on 24.1.88, the deceased had gone to her parents house after having a quarrel ‘with her in-laws and she narrated to her mother that her mother-in-law had spitted on her face and she was given beating by her husband and because of the cruel treatment she did not want to go back to the house of her in-laws. When her husband came to take her back in the evening, she refused to go because of the harassment caused to her at the hands of her husband and his relatives. Next day, feeling that she might not be allowed at their house by the in-laws, she herself went to the house of the in-laws in the morning. What happened in the house of her in-laws, nobody knows, as there is no evidence on this point, but one thing is clear that she committed suicide at 11.30a.m. Though her death could not be said to be as a result of cruel treatment and harassment in connection with or for demand of dowry, one thing is clear that she was harassed with a view to coerce her to meet any unlawful demand of her husband or his. relative bringing this case within the purview of Section 498A/34 IPC. I, therefore, confirm the finding of the trial Court on this charge and hold the appellants guilty under Section 498A/34 IPC.
(7) On the point of sentence it is not disputed that the appellants Masroor and Zuber Ahmed @ Pappu are in jail since the very beginning and ‘they have been in jail for more than three years, Masood Ahmed and Jamani Begum remaining in jail for about two years. Looking to their age and status this Court granted them bail on 23.4.90. As the appellants have been in jail for a considerable long time, I feel that the ends of justice will be met if the period of sentence is reduced to already undergone.
(8) I hereby modify the order of the trial Court to the extent that conviction of the appellants u/s 304B/34 Indian Penal Code is set aside, whereas thier conviction under Section 498A/34 Indian Penal Code is confirmed and the sentence is reduced to already undergone. The appeal is partly allowed.