JUDGMENT A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Sections 498A and 306 of Indian Penal Code, 1860 on a trial held by Fast Track Court, Bangalore City. The facts reveal that the appellant is the husband of Lubna Begum (deceased) and their marriage was held on 31-5-2001. Through the wedlock, they have a male and female children. The appellant used to consume liquor and was assaulting Lubna Begum, his wife all along and the deceased was not able to bear the cruelty and on 7-8-2005 in the evening at about 6.30 p.m. committed suicide by pouring kerosene and setting fire on herself. Immediately, she was shifted to the hospital and her statement was recorded by P.W. 8-Rangaswamy, Police Sub-Inspector in the presence of doctor and on the basis of said statement (Ex. P. 9), a case was registered for the offence under Section 498A of Indian Penal Code, 1860 and FIR (Ex. P. 10) was sent to the Magistrate. During the treatment, her dying declaration (Ex. P. 18) was recorded by P.W. 14-A.S. Patil, the Taluka Executive Magistrate in the presence of doctor and it is on 11-8-2005 at 12.15 p.m. she succumbed to the burns. The inquest was held on the body of deceased and the dead body was sent for post-mortem examination and the post-mortem report (Ex. P. 17) was secured. At the time of spot mahazar, M.Os. 1 to 3 were seized. On completion of investigation, charge-sheet was laid against the accused for the offence under Sections 498A and 306 of IPC. During the trial, prosecution examined P.Ws. 1 to 20, got marked documents Exs. P. 1 to P. 22 and M.Os. 1 to 3. Statement of the appellant was recorded under Section 313 of Criminal Procedure Code, 1973. No defence evidence was led. The Trial Court after hearing the Counsel for parties and on appreciation of the material on record, convicted the appellant for the charge under Sections 498A and 306 of IPC and for the offence under Section 306 of IPC, he was ordered to undergo rigorous imprisonment for three years and to pay fine of Rs. 3,000/-, whereas for the offence under Section 498A of IPC, he was ordered to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/-. Aggrieved by the conviction and sentence, the present appeal is filed. 2. 3,000/-, whereas for the offence under Section 498A of IPC, he was ordered to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/-. Aggrieved by the conviction and sentence, the present appeal is filed. 2. Learned Counsel for the appellant was absent on all occasions in the past and therefore, Sri B.M. Mohan Kumar, Advocate is appointed as Amicus Curiae. 3. I have heard the learned Amicus Curiae and learned High Court Government Pleader. 4. The point that arises for my consideration is: Whether the appellant has made out any grounds to warrant interference in the conviction and sentence ordered by the Trial Court for the offence under Sections 306 and 498A of IPC? 5. It is the submission of learned Amicus Curiae that none of the witnesses including close relatives of deceased have supported the case of prosecution and the statement recorded as per Ex. P. 9 and the dying declaration Ex. P. 18 are not sufficient to award conviction and therefore, he would contend that the appellant is entitled to an order of acquittal. 6. On the other hand, learned High Court Government Pleader has supported the judgment and order of the Court below. 7. Learned Amicus Curiae has taken this Court through the evidence of all important witnesses and it reveals that P.W. 1 is the mother and P.W. 2 is the brother of deceased. P.W. 4 is the landlord of the premises in which the appellant and deceased were residing, whereas P.W. 3 is the wife of P.W. 4. All these witnesses have turned hostile to the prosecution and in the cross-examination as well, they do not speak to any incriminating circumstances to prove the cruelty and harassment, therefore, the evidence of P.Ws. 1 to 4 is of no help to the prosecution. 8. Mainly, the Trial Court has awarded conviction and sentence on the basis of evidence of P.W. 8-Rangaswamy, the Police Officer in whose presence the statement Ex. P. 9 was recorded, P.W. 15-Puttalingaiah, Head Constable who is the scribe of Ex. P. 9 and the evidence of P.W. 9-Dr. Harish Reddy in whose presence Ex. P. 9 was recorded. So also, it relies upon the evidence P.W. 14-A.S. Patil, Taluka Executive Magistrate who recorded dying declaration (Ex. P. 18) and drawn the inquest (Ex. P. 2). P. 9 was recorded, P.W. 15-Puttalingaiah, Head Constable who is the scribe of Ex. P. 9 and the evidence of P.W. 9-Dr. Harish Reddy in whose presence Ex. P. 9 was recorded. So also, it relies upon the evidence P.W. 14-A.S. Patil, Taluka Executive Magistrate who recorded dying declaration (Ex. P. 18) and drawn the inquest (Ex. P. 2). The deceased Lubna Begum in her statement has stated that from a year prior to her death, her husband was beating her now and then and used to consume liquor and he was not bringing any food grains or household articles and therefore, she has stated that she was not able to bear the cruelty ad hence, poured kerosene on herself and set fire on 7-8-2005 at about 6.30 p.m. 9. Perusal of Ex. P. 9 would reveal the conduct of appellant in beating his wife and not bringing household articles and also his habit of consuming liquor. It also indicates that from a year prior to her death, she was subjected to physical cruelty and harassment at the hands of appellant. The contents of Ex. P. 9 are the last words of deceased Lubna Begum and it is her dying declaration. In case, if the statement is proved satisfactorily on the basis of other evidence, there is no reason to discard this evidence so far as proof of cruelty and harassment is concerned. It is no doubt true that her mother, brother have turned hostile to the prosecution, but that itself is not sufficient to reject the prosecution version. 10. At the time when Ex. P. 9 was recorded, it is P.W. 9-Dr. Harish Reddy who was present and in his evidence, he states that deceased had sustained the burns and he was present at the time of recording the statement by P.W. 8 and it is P.W. 8 who has questioned the injured Lubna Begum and as per his instructions P.W. 15 has recorded the statement in his handwriting. So, P.W. 8 in his evidence states about the recording of statement Ex. P. 9 as per the version of injured Lubna Begum and P.W. 9 in his evidence has deposed that the deceased had sustained 79% of burns and she was conscious and was fit to give statement before the Police Officer. So, P.W. 8 in his evidence states about the recording of statement Ex. P. 9 as per the version of injured Lubna Begum and P.W. 9 in his evidence has deposed that the deceased had sustained 79% of burns and she was conscious and was fit to give statement before the Police Officer. So after considering the evidence of P.W. 9-the Doctor, it is very much clear that Lubna Begum was in a condition to give statement. She was well-oriented and there is no reason to discard the evidence of P.W. 9 in this regard. So the contents of Ex. P. 9 would clearly indicate that there was cruelty and harassment meted out by Lubna Begum at the hands of husband i.e., the appellant. 11. P.W. 14-A.S. Patil, the Taluka Executive Magistrate has recorded dying declaration (Ex. P. 18). But unfortunately, the prosecution has not examined the doctor who was present at the time of recording dying declaration. It was the duty of the prosecution to examine the doctor, but anyhow perusal of Ex. P. 18 would reveal the cruelty and harassment meted out by the deceased. To this extent, there is corroboration to the contents of Ex. P. 9 and the contents of Ex. P. 18-dying declaration. Though the deceased Lubna Begum has also stated about the demand of dowry and threat given by the appellant that he would marry another wife in case if she dies. This version is stated for the first time in the dying declaration Ex. P. 18. Therefore, the version of witnesses to the extent aforesaid put forth by the prosecution on the basis of Ex. P. 18, cannot be accepted for the reason that the doctor has not been examined, but anyhow Ex. P. 18 could be taken to the extent of cruel treatment meted out by the deceased at the hands of appellant to corroborate the contents of Ex. P. 9. Therefore, there is ample material on record to affirm the conviction of appellant for the charge under Section 498A of IPC. 12. Perusal of Exs. P. 9 and P. 18 would reveal that the appellant was in a habit of consuming liquor and beating his wife now and then. It cannot be said by the version of prosecution that appellant had mens rea about the commission of suicide by his wife Lubna Begum. 12. Perusal of Exs. P. 9 and P. 18 would reveal that the appellant was in a habit of consuming liquor and beating his wife now and then. It cannot be said by the version of prosecution that appellant had mens rea about the commission of suicide by his wife Lubna Begum. The mere cruel treatment itself is not sufficient unless the cruelty is of such a nature as likely to drive a woman to commit suicide. Beating the wife in an intoxicated condition though attracts the provision under Section 498A of IPC, the later part of clause (a) i.e., Section 498A, Explanation (a) is applicable to the facts on hand. In my considered opinion, this cruelty is not sufficient to infer the knowledge about the deceased committing suicide due to this cruelty. Therefore, the provision under Section 306 of IPC are not attracted and the evidence adduced is insufficient to affirm the conviction for the offence under Section 306 of IPC. Taking into consideration the aforesaid facts and circumstances, I am of the opinion that to the extent of conviction under Section 306 of IPC, the judgment has to be modified. In the result, the appeal is allowed in part. Conviction and sentence ordered against the appellant for the offence under Section 306 of IPC is set aside. He is acquitted of the said charge. The conviction and sentence for the offence under Section 498A of IPC is affirmed. Appellant is entitled for set off under Section 428 of Cr. P.C. The Trial Court is directed to secure the presence of appellant to undergo the sentence. The fee of Amicus Curiae is fixed at Rs. 5,000/- and the State shall pay the same.