JUDGMENT (V.K. Ahuja, J.) (Oral) - This is an appeal filed by the appellants under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Kullu, dated 24.9.2001, vide which the appellants were held guilty under Section 498-A I.P.C. and were sentenced to three years rigorous imprisonment and a fine of Rs. 5,000/- each. The appellants were acquitted of the charge framed against then under Section 306 I.P.C.. 2.Being aggrieved by the conviction imposed upon the appellants, they have filed the present appeal, while cross appeal has not been filed by the State of H.P. against the acquittal under Section 306 I.P.C. 3.Briefly, stated, the facts of the case are that on 6.8.1999, a rapat was lodged with the police by one Moti Ram accompanied by Karam Chand, father of Naina Devi, in which it was alleged that daughter of Karam Chand, namely, Naina Devi, is missing from the house. Complainant Moti Ram is the father-in-law of Smt. Naina Devi, who gave a telephonic call to Karam Chand whether his daughter Naina Devi has come to his house and he told him that she has not visited him alongwith the children. In view of the fact that Smt. Naina Devi was not traceable, her father-in-law Moti Ram lodged a report with the police accompanied by the father of the deceased, namely, PW-1 Karam Chand. A missing report was registered on 6.8.1999 as per Ext.PW13/A. Subsequently, the dead body of Naina Devi was recovered on 7.8.1999 and that of her another daughter and the dead body of another son was recoverd on 11.8.1999, though the dead body of third daughter of deceased Naina Devi was not recovered. On this report, subsequently, the police recorded the statement of the brother of the deceased, namley, Bhup Singh under Section 154 Cr.P.C. Ext.PW2/A on 7.8.1999 and the case was registered under Section 498-A, 306 read with Section 34 I.P.C. After investigation, the challan was filed before the Court of learned Judicial Magistrate, who committed the case to the learned trial Court, who tried the appellants under Sections 498-A, 306 read with Section 34 I.P.C. Respondent No. 1 is the father-in-law of the deceased, respondent No. 2 is the mother-in-law of the deceased, while respondent No. 3 is the brother-in-law of the deceased. 4.After trial, the learned trial Court held appellants guilty under Section 498-A read with Section 34 I.P.C. and convicted and sentenced them as detailed above, while they were acquitted of the charge framed against them under Section 306 I.P.C. 5.I have heard learned Counsel for the parties and have gone through the record. 6.The submissions made by the learned Counsel for the appellants were that the learned trial Court had drawn its own conclusions from the evidence that the charge under Section 498-A I.P.C. was proved, though there was no legal evidence led against the appellants and merely on presumptions, the learned trial Court concluded that the offence under Section 498-A was proved. I have been taken through the evidence by the learned Counsel for the appellants and it has to be inferred from the evidence as to whether the charge against the appellants stood proved or not under Section 498-A I.P.C. 7.The prosecution has examined 17 witnesses and out of the 17 witnesses, the statements of the relatives of the deceased and other witnesses examined can be said to be material, which need to be appreciated by this Court as to whether they prove the guilt of the appellants or not. 8.The first witness is PW-1 Karam Chand, father of the deceased, who has given the cause of discord in between the complainant and appellants/in-laws that they had been accusing her of not caring for the children. Her father PW-1 Karam Chand further stated that four years prior to the death, his daughter suffered injury due to fall. She became weak and was operated for appendicitis. He further stated that due to operation, she was unable to do her work. He also stated that 6-7 months prior to her death, she fell ill, intimated telephonically. Then he called his daughter alongwith children to stay with him. He also stated that prior to ailment, his daughter had started preparing meals for herself and children separately since her in-laws were not providing proper food to her and children. She kept her kitchen separately for 15 day and then he sent his son, daughter and Up Pradhan Tek Chand to her house and then they prevailed upon her to have common mess with in-laws. She thereafter joined in common mess with the in-laws. She kept her kitchen separately for 15 day and then he sent his son, daughter and Up Pradhan Tek Chand to her house and then they prevailed upon her to have common mess with in-laws. She thereafter joined in common mess with the in-laws. He also stated that on ailment when his daughter came to his house, he provided treatment and medicines to her but no contribution was made by her in-laws. He also stated that he took his daughter to the hospital at Kullu but there was some problem in their lab, then he took his daughter to Beas Hospital, Kullu. In cross-examination, PW-1 Karam Chand admitted that she used to have headache and was taken before the deity where matted wheat flour as per custom was offered to the density to free his daughter with blessings of the deity. He admitted that matted wheat flour was offered to the deity to thwart and evil spirit. He was confronted with his police report in which it was mentioned that Naina Devi was mentally disturbed. He stated that in his report to the Police Ext.DA he had mentioned that his daughter was not being provided proper food and he was confronted with his report in which it was not so mentioned. He admitted that his daughter suffered appendicitis pain in the house of in-laws and treatment was provided by her in-laws. 9.PW-2 Bhup Singh, brother of the deceased, has stated that his sister used to tell about the ill treatment to her and her children and this was told by her to his father. Accused had also been telling that the deceased was not doing her house hold work. He also stated about the preparation of food separately by her and reconciliation effected with their efforts and that of Up Pradhan Tek Chand. PW-3 Smt. Pushpa Devi, sister of deceased, also stated similarly. She stated that the deceased used to remain ill and went weak and had told her in her parents house that she was not being given treatment by the respondents nor any expenses for medical treatment. She however, stated that during the time she remained ill for about one month in her parental house, the expenses were borne by her father. She however, stated that during the time she remained ill for about one month in her parental house, the expenses were borne by her father. 10.PW-4 Inder Ram, a neighbour of the deceased, had stated that he visited the house of the deceased’s father when she was ill for one month and the treatment was provided by her father. He enquired from her who told him that her in-laws were not treating her and providing any treatment. He came up with the plea that she was suffering from fever and not from any other ailment, which is contrary to the version given by her other relatives, in which they mentioned about the fall and appendicitis operation. PW-5 Inder Singh is the cousin brother of the deceased, who stated that he came to know from the deceased about the torture by her in-laws and that she was not being cared and looked after by her in-laws who were not providing any treatment to her. He was confronted with the police statement and it is clear that he has made several improvements, as per statement made to the police, in which he has not mentioned visiting of house of deceased on some festival. He is not aware that his cousin was being taken to the deity for treatment who used to remain disturbed. 11.On appraisal of the above evidence led by the prosecution, it is clear that the facts which emerge on record are that the deceased and her husband were married for the last 12 years and there was no discord in between them for any reason. Her relations with her husband were good and it is for the last three years that she made allegations in regard to maltreatment by her in-laws. It was mainly in regard to not looking after her children and providing them proper food. It appears from the record that the deceased fell in 3-4 years ago, remained under treatment and she used to have headache, suffered a fall and had become weak and had also undergone operation of appendicitis. It appears that since she had become weak and used to remain ill, she may not have been able to look after her children and provide them food properly, for which the appellants may be having some grievances. The learned trial Court had concluded that the deceased was also not treated properly by her in-laws. It appears that since she had become weak and used to remain ill, she may not have been able to look after her children and provide them food properly, for which the appellants may be having some grievances. The learned trial Court had concluded that the deceased was also not treated properly by her in-laws. There is no complaint that appellants were not being provided food etc. by her. Her father had started depositing some money in her name in R.D. account for further assistance which she may require in future but it cannot be said that no money was provided by the husband, otherwise she would not have been able to have separate kitchen, for which reconciliation was effected by one of her brothers and sister and one Tek Chand. The most material witness Tek Chand who had gone alongwith brother and sister of deceased and effected the reconciliation, was given up by the prosecution as having been won over by the accused, who could have thrown some light for the cause of discord. 12.In regard to non-examination of Tek Chand, Up Pradhan, the learned Counsel for the appellants had relied upon the decision in The State of U.P. and another v. Jaggo alias Jagdish and others, AIR 1971 Supreme Court 1586, wherein it was observed by their Lordships as under :- “All witnesses of the prosecution need not be called but witness whose evidence is essential to the unfolding of the narrative must be called. His absence seriously affects the truth of the prosecution case.” 13.It is clear from the above discussion that this practice of giving up the witness Tek Chand by the learned Prosecutor has to be deprecated and real test is in the Court, when the witness is examined, turns hostile and is subjected to cross-examination by the learned Prosecutor, only then an opinion can be drawn by the Court as to whether the witness has deposited truthfully or not. 14.It is clear from the above discussion that the only allegation made out was that the deceased was not providing proper food to her children but the circumstances show that this grievance may be there since the deceased had suffered from several ailments, had become ill and may not be in a position to look after them properly but there is no grievance that she was not looking after the appellants or was not doing household work and the evidence led is contradictory. It is also on record from the statements of witnesses examined by the prosecution that no complaint was ever made to Panchayat, Mahila Mandal or the police or any other authority, in case the deceased was being harassed for the last 3-4 years. There is also substance in the plea raised by the learned Counsel for the appellants that the deceased’s family was not consisting of illiterate persons but they are the persons who had been members of Mahila Mandal or other such associations and had been pursing the cause for providing help to destitute women in the State. There is admission by PW-2 Bhup Singh, brother of the deceased, who is a famous Comrade of Kullu Valley and has been fighting for the cases of women and the Chairman of the Mahila Mandal was also known to him for the last several years. To the similar effect is the statement of PW-3 Pushpa Devi, sister of the deceased that she has been agitating about the rights of women in their Mahila Mandal. She is a member of Mahila Mandal for the last 8-9 years and in case there was such a grievance to them about the ill treatment to their sister, they would have lodged report with the Panchayat or other authority or had taken recourse to the law. It is clear that due to her ill health, the deceased may be depressed and that the learned trial Court had concluded that it may be a reason for her suicide but on the same evidence, the learned trial Court had acquitted appellants of the charge under Section 306 I.P.C., against which order no appeal has been preferred by the State. The evidence led cannot be said to be sufficient to bring home the guilt of the appellants for the offence under Section 498-A. 15.I may make a reference to latest decision cited by the learned Counsel for the appellants in Noorjahan v. State represented by DSP, 2008(3) Supreme Court Cases (Cri.) 915, the Apex Court had referred to the provisions of Sections 498-A and 306 I.P.C., and has made observations in Para-16 as under :- “16. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the woman is required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offence It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty.” 16.Keeping in view the above discussion, it is clear that there was no legal evidence to hold the appellants guilty for the offence under Section 498-A I.P.C. in view of the fact that they have been acquitted on the same evidence for the offence under Section 306 I.P.;C. The evidence led was not sufficient to bring home the guilty of the appellants under Section 498-A and as such, the findings of the learned trial Court are liable to be set aside holding the appellants guilty and sentencing them. The appeal filed by the appellants is accepted and the sentence is set aside. Fine if deposited, shall be refundable to the appellants or in case of any appeal, as per the decision thereof. Bail bonds furnished by the appellants shall stand discharged forthwith. M.R.B. ———————