JUDGMENT : Pradeep Nandrajog, J. 1. Believing the testimony of Choti Devi PW-1 and Tohfa PW-7, that the prosecutrix made dying declarations to them of the appellant Chandra Prakash having raped her on 03.11.1999 and holding that Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10 were written by the prosecutrix and were her dying declarations, vide impugned judgment dated 27.03.2002, the appellant has been convicted for the offences punishable under Sections 376 and 306 IPC. For the former offence the appellant has been sentenced to undergo RI for a period of seven years and pay fine in sum of Rs. 1000/- in default to under RI for three months. For the later offence, same sentence has been imposed. Both sentences have been directed to run concurrently. 2. That the prosecutrix died at 2.45 p.m. on 04.11.1999 at SMS Hospital, Jaipur and that the cause of death was her consuming aluminium phosphate, evidenced by the FSL report of viscera, Ex.P-32 was not disputed by learned counsel for the appellant while arguing the appeal. 3. It is apparent that in the appeal, the attempt was to discredit the testimony of PW-1 and PW-7. As also to question the FSL report dated 31.05.2000, Ex.P-47 and FSL report dated 26.02.2002, Ex.C-1. 4. Prosecutrix was brought at SMS Hospital, Jaipur at 1.48 p.m. on 04.11.1999, evidenced by the bed-head ticket Ex.P-26. She died at 2.45 p.m. same day, evidenced by the bed-head ticket, Ex.P-26 and Ex.P-27. Ct. Gopal Singh PW-21 was the duty officer at PS Mahesh Nagar, who recorded the DD entry Ex.P-31 at 5.30 p.m. noting therein that one Satish Kumar, a compounder from SMS Hospital Jaipur had informed that a girl who was brought to the hospital in the early hours of the afternoon had died. S.I. Mahendra Singh PW-23 reached the hospital to make enquiries as contemplated by Section 174 Cr.P.C. 1973 and recorded the statement of Badri Narain PW-8, the father of the prosecutrix at 6.00 p.m. and suffice to state, in said statement there is no mention by PW-8 that either his wife or his sister PW-7 had told him that the prosecutrix had told the two that because she was raped by the appellant she had consumed poison. 5. The next day i.e. 05.11.1999 the investigating officer seized four slips i.e. Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8, as recorded in the seizure memo Ex.P-4. 5. The next day i.e. 05.11.1999 the investigating officer seized four slips i.e. Ex.P-5, Ex.P-6, Ex.P-7 and Ex.P-8, as recorded in the seizure memo Ex.P-4. Six days later, on 11.11.1999 he seized the slip Ex.P-10. 6. In between, on 05.11.1999 statements of PW-1, PW-7, the sister of the prosecutrix PW-9, the brother PW-22 and her uncle PW-3 were recorded on 05.11.1999. 7. Whereas PW-7, in her statement recorded on 05.11.1999 told the investigating officer that the prosecutrix had told her the reason of her consuming poison was the rape committed by the appellant, in her statement recorded on 05.11.1999, PW-1 did not say so. PW-9, PW-11 and PW-3 also did not said that either PW-1 or PW-7 had told them that the prosecutrix had consumed poison on account of being raped by the appellant. 8. In their testimony in court, PW-1 and PW-7 maintained that at the first instance the prosecutrix made a dying declaration to PW-1, who immediately went to the house of PW-7 and summoned her so that the prosecutrix could be taken to the hospital. As per both of them, the prosecutrix repeated the same statement when PW-7 reached the house of PW-1 where the prosecutrix had consumed sulfas. As per the two, the slips Ex.P-5 to Ex.P-8 and Ex.P-10 were the result of the diary maintained by the prosecutrix when they snatched the same from her hand, the pages got torn. 9. Learned counsel for the appellant urged that from the fact that PW-3, who was the younger brother of the father of the prosecutrix and was a doctor at SMS Hospital, Jaipur, did not inform S.I. Mahendra Singh that his niece had committed suicide because she was raped by the appellant is proof that the prosecutrix did not make any dying declaration to PW-1 or PW-7, who certainly would have met him in the hospital and would have told him so if indeed a dying declaration was made to them by the prosecutrix. Questioning Ex.P-5 to Ex.P-8 and Ex.P-10, learned counsel urged that firstly there is no evidence that the slips were sealed. Learned counsel urged that the diary which allegedly got torn when PW-1 attempted to snatch it from the hand of the prosecutrix was not seized. Questioning Ex.P-5 to Ex.P-8 and Ex.P-10, learned counsel urged that firstly there is no evidence that the slips were sealed. Learned counsel urged that the diary which allegedly got torn when PW-1 attempted to snatch it from the hand of the prosecutrix was not seized. Learned counsel urged that the slips were not handed over to S.I. Mahendra Singh on 04.11.1999 lends credence to the fact that the family members of the prosecutrix got time to manufacture the writings on the slips. Learned counsel highlighted that Ex.P-10 was handed over to the investigating officer on 11.11.1999. Learned counsel urged that in the reports Ex.P-47 and Ex.C-1 reasons have not been given for the opinion that the writings were in the hand of the prosecutrix. 10. Whilst it may be true that in her initial statement recorded under Section 161 Cr.P.C. 1973 PW-1 has not stated that her daughter told her the reason why she had consumed self as and did not state that the said statement was repeated by her daughter when she summoned PW-7 to remove the prosecutrix to the hospital and it would be the natural conduct of a mother to tell said fact to her husband and the brother of her husband and the husband and his brother in turn would so state to the investigating officer, but in the Indian context where a family honour is regretfully linked to the virginity of an unmarried girl, the said omission by PW-1 can be overlooked, being the result of her fear. Same would apply to the conduct of PW-7. If this be so, nothing turns on the fact that the father of the prosecutrix and her uncle did not inform the investigating officer the reason why the prosecutrix consumed self as. 11. As regards the slips Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10, whilst it may be true that four of them were handed over to the investigating officer the day next of the incident and the fifth seven days thereafter, but this is the fault of the investigating officer. If the family of the prosecutrix needed time to create written dying declarations by the prosecutrix, they would not have resorted to the strategy of writing multiple slips and especially Ex.P-6, which as would be noted by me hereinafter has story to tell which is exculpatory of the guilt of the appellant. 12. If the family of the prosecutrix needed time to create written dying declarations by the prosecutrix, they would not have resorted to the strategy of writing multiple slips and especially Ex.P-6, which as would be noted by me hereinafter has story to tell which is exculpatory of the guilt of the appellant. 12. In my opinion much turns on the slips Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10. They are undisputedly in the handwriting of the prosecutrix. Not only the FSL reports proves the same but even a visual comparison of the writings with the sample writings of the prosecutrix in her registers Ex.P-11 and Ex.P-12 prove the same. Besides the testimony of PW-9 and PW-22, the sister and brother of the prosecutrix who would be presumed to be familiar with the writing of the prosecutrix. 13. The slip Ex.P-5 contains writing on the front as also on the rear of the slip. It is recorded as under:- ^^21-06-1999 21 rkjh[k dks eSaus ckr dh mlus dgk fd eSa mls vPNh yxrh gwaA irk ugha eq>s cnuke djuk pkgrk gSA ;k vkSj dqN dgrk gS fd ,d ckj eq>ls ckgj fey ys eSa feyuk ugha pkgrh ckr gqbZ eq>s og vPNk ugha yxrk gS u eSa mlls ckr djuk ilUn djrh gwa eq>s ns[krk jgrk gSA eq>s xUnk yxrk gSA dHkh&dHkh xqLlk vkrk gSa tgj [kkdj ej tkÅA** 14. Translated, the writing is:- "21.6.1999 On 21 I had a talk with him he told me that he likes her. I do not know, whether he wants to defame me. He is asking me to meet outside but I do not want to meet him I do not like him I do not like talking to him. He keeps on staring at me I hate him. Sometimes I get very angry. I feel like consuming poison and dying." 15. Writing on Ex.P-7 is also on both sides of the slip of paper. It reads:- igys crk;k gSA dqeqn dqeqn dqeqn jkedj.k ekS;Z ekekth 29-10-1999 dks tgj [kk fy;k ij Hkxoku dks eUtwj u Fkk vk;dj foHkkx :e uEcj 317 iih 1999 rhljh eafty tqykbZ & 27 Qksu uaŒ 380315 vxLr & 27 fdj.k 864520 flrEcj & 9 flrEcj & 20 31-10-1999] 03-11-1999 31 vDVwcj dks mlus lc dqN dj fy;k ejus dk eu djrk gSA 16. Translated, it reads: I have told you earlier. Kumud Kumud Kumud Kumud..... Translated, it reads: I have told you earlier. Kumud Kumud Kumud Kumud..... On 29.10.1999 I had consumed poison but God had wiled otherwise. 27 July to 27 August and 9 September to 20 September. 31.10.1999, 03.11.1999. On 31st October he has done everything. I feel like dying. 17. The writing Ex.P-8 reads as under:- esjk gR;kjk izdk'k esgjk gSA mlus esjh gh ugha dbZ yM+fd;ksa dh ftanxh cckZn dh gS eSa rks mls ilUn Hkh ugha djrh FkhA 18. Translated it reads: That Prakash Mehra is her killer. He has not only destroyed her life but the life of many other girls. She hates him. 19. The writing on Ex.P-6 is on both sides of the slip. It reads as under:- eSa 22 dks feyh 23 dks ugha 24 dks ,d fnu mlus viuh thou dh dgkuh crk nh dqeqn eSa rsjs Åij Vky fn;k dqeqn eSa nksLrh d: ;k u d: rsjh ejth mls esjs ckjs esa xyr Qseh vkSj gS fd eSa mls ns[krh jgrh gS oks esjs lkeus vk;k rks esa mls crk nwaxhA 20. Translated it reads: I met on 22nd. Not on 23rd. On 24th one day he told me about his life. Kumud I leave it to your decision. You tell me whether I should be friend with me or not. It would be your decision he seems to be under a wrong impression that I am in love with him. 21. The writing on Ex.P-10 reads as under:- esjk gR;kjk izdk'k esgjk gSa tks dh 22. Translated it reads: Prakash Mehra is my killer. 23. From a reading of Ex.P-7, which is dated 21.06.1999, it is apparent that the prosecutrix has written about her hatred for an unknown person. From the writing on Ex.P-6, which is undated, it is apparent that the prosecutrix is seeking the opinion from her friend Kumud whether she should make friends with a person who had confided about his life to her. That she was of the opinion that the person concerned believed that she was in love with him. The writing on Ex.P-7 is to the effect that on 29.10.1999 the prosecutrix attempted to commit suicide and that on 31st October somebody had sex with her. Ex.P-8 and Ex.P-10 name the appellant. 24. The testimony of Dr. That she was of the opinion that the person concerned believed that she was in love with him. The writing on Ex.P-7 is to the effect that on 29.10.1999 the prosecutrix attempted to commit suicide and that on 31st October somebody had sex with her. Ex.P-8 and Ex.P-10 name the appellant. 24. The testimony of Dr. N.L. Disaniya PW-16, who conducted the post-mortem of the prosecutrix and prepared the reports Ex.P-31 to Ex.P-33 establish that the prosecutrix was habituated to sex and that not only the hymen was torn and evidenced by it being inverted having an angle of 6 O'clock, was suggestive of the prosecutrix having undergone an abortion. 25. This piece of evidence has to be considered in light of the writings of the prosecutrix which have been exhibited as Ex.P-5, Ex.P-6, Ex.P-7, Ex.P-8 and Ex.P-10. 26. The exact date when the prosecutrix underwent an abortion has not come on record. But from the writing on Ex.P-5 it is proved that as early as 21.06.1999 the prosecutrix had written about a tormented relationship which she was facing with a male, whose name she has not mentioned in the writing. The writing on Ex.P-7 establishes that on 29.10.1999 the prosecutrix was so fed up of life that she attempted to commit suicide. The writing on the same exhibit of 31st October does record that the tormentor of the prosecutrix has done something with her which was compelling her to commit suicide, but the same does not mean that the prosecutrix was subjected to a sexual assault for the first time on 31.10.1999. The writing on Ex.P-6 establishes that the prosecutrix was seeking guidance from her friend Kumud whether to be friend a person whose name was not mentioned in the writing. The testimony of the mother and aunt of the deceased that she told them that the appellant had raped her on 03.11.1999 runs in the teeth of the writings of the prosecutrix herself, meaning thereby, the prosecutrix was not subjected to a sexual assault for the first time nor did the prosecutrix have sex for first time on 03.11.1999. 27. Writings of the prosecutrix, cumulatively read do not rule out the possibility of a consensual relationship with the appellant. Relationship turned sour. Prosecutrix who had undergone an abortion in the recent past found no way out to break through from the relationship. She found no meaning to life. 27. Writings of the prosecutrix, cumulatively read do not rule out the possibility of a consensual relationship with the appellant. Relationship turned sour. Prosecutrix who had undergone an abortion in the recent past found no way out to break through from the relationship. She found no meaning to life. She decided to end her life. 28. It is settled law that evidence led by the prosecution should not only be incriminating qua the accused but should also rule out the innocence. The writings of the prosecutrix may point a finger towards the appellant, of continuing to have sex with her, pursuant to a relationship which started well, but later on turned sour. The possibility of the prosecutrix continuing with the relationship, may be out of a feeling of hopelessness cannot be ruled out. The prosecutrix breaking down mentally at some stage of the soured relationship cannot be ruled out. This was the cause of her to commit suicide. 29. I conclude by holding that the charge of having committed an offence punishable under Section 376 IPC is not proved against the appellant, because the evidence is of a kind which does not rule out the appellant's innocence. The appellant would be entitled to the benefit of a doubt. 30. The conviction for the offence of abetment to suicide by the learned trial Judge is on the reasoning that by raping the prosecutrix she was compelled to commit suicide. 31. The reasoning is legally unsound. Abetment is defined under Section 107 IPC, as under:- "107. Abetment of a thing - A person abets the doing of a thing, who:- (First) - Instigates any person to do that thing. (Secondly) - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 1 - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 32. No act contemplated by Section 107 IPC can be attributed to the rapist where a female commit suicide on being raped. Apart from the legal reasoning adopted by the learned trial Judge, which is unsound, since I am acquitting the appellant of the charge of having committed an offence punishable under Section 376 IPC, I set-aside the appellant's conviction for the offence punishable under Section 306 IPC. 33. The appeal succeeds. The appellant is acquitted of the charge framed against him. 34. As regards S.B. Criminal Revision Petition No. 456/2002, where grievance of the father of the prosecutrix is that inadequate sentence has been imposed upon the accused, in view of the accused being acquitted, said revision petition is dismissed.