Judgment S.L.Kochar, J. ( 1. ) By this appeal, preferred by the appellant, he has challenged his conviction under sections 498-A and 306 of the Indian Penal Code and sentence of R.I. for three years and seven years and fine of Rs. 200/-, in default of payment of fine to suffer additional R.I. for 15 days and R.I. for five years and fine of Rs. 200/-, in default of payment of fine to suffer additional R.I. for 15 days respectively with direction to run both the substantive jail sentences concurrently, passed by the learned Addl. Sessions Judge, Jobat District Jhabua in Sessions rial No. 40/2007 by judgment dated 03.01.2008. ( 2. ) According to the prosecution deceased Sumitra was married with the appellant before 9 to 10 years. Out of this wedlock they were having two children. The appellant, after consuming liquor used to beat and harass his wife (the deceased). The appellant was also having doubt over her character and also levelling allegation to this effect. The deceased was disclosing all these facts and about behaviour of the appellant to her parents when-ever she was visiting their house. The appellant was admonished by the parents of deceased and the appellant some times assured them to correct himself and not to beat and misbehave with the deceased. On 13.11.2006, the deceased was found dead inside her house because of burning. According to the prosecution case, she committed suicide because of cruel behaviour of the appellant. The matter was reported. to the village Chowkidar Naansa who lodged the report at the Police Station and the Police registered the MARG. Dead body of the deceased was sent for postmortem - examination and the same was conducted by PW-9 Dr S.N. Dawar. The postmortem examination report is Ex.P/11. After due investigation, the appellant was charge-sheeted for commission of the aforementioned offences. ( 3. ) The appellant denied the charges and pleaded not guilty. In defence he examined three witnesses whereas the prosecution, in order to establish its case has examined in total tern witnesses and adduced 15 documents. Learned trial Court, after hearing both the parties, finding the appellant guilty, convicted and sentenced him as indicated herein-above. ( 4. ( 3. ) The appellant denied the charges and pleaded not guilty. In defence he examined three witnesses whereas the prosecution, in order to establish its case has examined in total tern witnesses and adduced 15 documents. Learned trial Court, after hearing both the parties, finding the appellant guilty, convicted and sentenced him as indicated herein-above. ( 4. ) Learned counsel for the appellant has submitted that the deceased was married with the appellant before ten to twelve years and having two children, therefore, the provision of section 113-A of the Indian Evidence Act regarding presumption as to abatement to commit suicide by a married woman would not be attracted and there is no direct or circumstantial evidence available on record to establish that the deceased committed suicide. Learned counsel also submitted that possibility of sustaining burn accidentally or she could have ablazed by some one else can also not be ruled out. Therefore, only on the basis of the evidence of cruel behaviour, ill-treatment and beating by the appellant to the wife, offence under section 306 of the Indian Penal Code would not be made out and the appellant cannot be convicted for abatement to commit suicide. Learned counsel has submitted that even if complete prosecution case is accepted, at the most, offence under section 498-A of the Indian Penal Code would be made out against the appellant. ( 5. ) On the other hand, learned State counsel has supported the impugned judgment and finding and also submitted that there is overwhelming direct and circumstantial evidence available on record that the appellant, after consuming liquor used to beat his wife and raising suspicion upon her character and this was his routine behaviour, as stated by the witnesses, mother, father and cousins of the deceased and independent witnesses of the locality. The appellant was found inside the house when the deceased sustained burn injuries, but he did not even try to rescue her which is sufficient to bring home the guilty of the appellant for abatement to commit suicide by the deceased. ( 6. ) Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that the offence punishable under section 306 of the Indian Penal Code would not be made out against the appellant, because there is no evidence on record that the deceased committed suicide. ( 6. ) Having heard learned counsel for the parties and after perusing the entire record, this Court is of the view that the offence punishable under section 306 of the Indian Penal Code would not be made out against the appellant, because there is no evidence on record that the deceased committed suicide. For making out a case under section 306 of the Indian Penal Code, the first most important ingredient required to be proved beyond all reasonable doubt by the prosecution is that the deceased committed suicide, which is lacking in the instant case as there was no eye witness of the incident and the deceased had also not disclosed anything about sustaining burn injuries. Therefore, possibility of receiving burn injuries accidentally or the same could be caused by some other person, is not ruled out. Therefore, the appellant is entitled to get benefit of this circumstance since the deceased met with death otherwise in normal circumstances after seven years of the marriage. Therefore, the provision of presumption under section 113-A of the Indian Evidence Act regarding abatement to commit suicide is not attracted. ( 7. ) The ingredients under section 107 of the Indian Penal Code regarding abatement are also not present in the instant case. No body has stated that the appellant instigated his wife to commit suicide or entered into conspiracy with some one to abate commission of suicide by his wife or deliberately knowing well harassing his wife so that because of the said harassment she could commit suicide. The ill-behaviour of the appellant was continued for a very long period, but the wife did not commit suicide. All the witnesses, close relatives of the deceased and independent witnesses have also spoecifi cally stated that the deceased was a woman of strong will power and courage and she could not commit suicide. ( 8. ) There is overwhelming evidence available on record in regard to cruel behaviour of the appellant with his wife. PW-1 Iman Wele, PW-2 Nirmalabai, PW-3 Vimlesh, PW-4 Kalawati, PW-5 Smt. Kamla, PW-7 Navin, father, mother, aunt, sister-in-law and neighbour respectively have stated that the appellant, after consuming liquor used to bet the deceased who was a teacher and she was disclosing these facts to them when-ever she met them. The appellant was also having suspicion over her character and always teasing her on that score. The appellant was also having suspicion over her character and always teasing her on that score. So many times, the appellant was admonished by his father-in-law and mother-in-law as well as other relatives and in spite of promise not to repeat such mis-behaviour, the appellant did not stop it. The witnesses have also stated that there was a meeting of family members of the appellant and the appellant was scolded as well as admonished for his cruel behaviour with the deceased, but there was no improvement in spite of promise . ( 9. ) PW-5 Smt. Kamla, the sister-in-law of the appellant ( wife of cousin brother), lias deposed that she had seen the appellant quarreling with the deceased and she disclosed several times to her about beating by the appellant after consuming liquor and suspicion on her character. The independent witness PW-7 Navin, a neighbour of the appellant, has also supported the prosecution case in this regard and there is no material on record to discard their testimony. ( 10. ) PW-9 Dr Dawar proved the postmortem report Ex.P/11 and i n his opinion the deceased died because of asphyxia due to extensive hundred percent burn injuries. ( 11. ) The appellant examined DW-1 Smt Adlina who has deposed that the appellant was having good relation with his wife. In cross-examination, she admitted that she did not disclose any-thing to the police. In cross-examination, the Prosecutor has contradicted this witness to impeach her testimony .with her case-diary statement Ex.P/13. This statement was recorded as per provision under section 161 of the Code of Criminal Procedure during the course of investigation, therefore, the same cannot be used for impeaching the credibility of the defence witness even when this witness was initially a prosecution witness and the prosecution did not choose to examine such witness (her). The statement recorded under section 161 of the Cr.P.C. can be used only as per provision under section 162 of the said Code when the witness was examined as a prosecution witness by the prosecution after declaring her hostile and in cross- examination by the defence as per provision under section 145 of the Indian Evidence Act. Since this witness did not appear as a prosecution witness, therefore, she could not be contradicted with her case-diary statement. Since this witness did not appear as a prosecution witness, therefore, she could not be contradicted with her case-diary statement. The testimony of defence witness DW-1 Smt.Adlina, DW-2 Shilpa and DW-3 Ramsingh Solanki is of no assistance to the appellant. All these three witnesses have given general statement that the appellant and deceased were having cordial relation. In their statement, they expressed their opinion and not with regard to any particular incident. DW-3 Ramsingh Solanki was also contradicted by the Prosecutor with his case-diary statement Ex.P/15. The learned trial Court should have not allowed the ;prosecutor to use the case-diary statements recorded by the police as per provision under section 161 of the Code of Criminal Procedure to contradict or impeach the testimony of the witnesses examined in defence. (See: Laxman Kalu V/s State of Maharashtra (AIR 1968 Supreme Court 1390 at para 7 ) and Mrs Shakila Khader etc. V/s Naushert Gama and another ( AIR 1975 SC 1324 ). In the latter case of Mrs Shakila Khader, the Supreme Court has observed thus:- "As regards the evidence of DW-1 it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the Police. Under Section 162 Cr.P.C. only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police and not Court witnesses or defence witnesses. " ( 12. ) Consequently, on the basis of the foregoing legal and factual discussion, this Court is of the opinion that the conviction of the appellant under section 306 of the Indian Penal Code is not made out. Therefore, his conviction and sentence for this offence are hereby set aside. The conviction of the appellant under section 498-A of the Indian Penal Code is upheld, but his sentence is reduced from three years to six months and fine is enhancedfrom Rs. 200/- to Rs. 5,000/- and in default of payment of fine to suffer additional R.I. for six months. Thus, the appeal is allowed in terms as indicated herein. ( 13. ) Office is directed to send a copy of this judgment to the trial Court along with its record for compliance. Appeal allowed