JUDGMENT : Rekha Borana, J. 1. The instant criminal appeal has been filed by the accused-appellant Ajeet Singh under Section 374 Cr.P.C. being aggrieved of the judgment dated 17.07.2018 passed by the Additional Sessions Judge (Women Atrocities Cases), Bhilwara in Sessions Case No.28/2014 whereby he has been convicted for the offences punishable under Sections 376 & 306 of the Indian Penal Code and sentenced as below : Section 376 IPC Imprisonment for life and a fine of Rs.25,000, in default of payment of fine to further undergo six months’ additional simple imprisonment. Section 306 IPC Rigorous imprisonment for ten years and a fine of Rs.10,000, in default of payment of fine to further undergo six months’ additional simple imprisonment. The sentences were ordered to run concurrently 2. Brief facts of the case are as under : 3. On the basis of Parcha Bayan (Ex.P/21) of Mst.S, the victim (deceased) daughter of Shiv Singh Chouhan recorded on 23.12.2013, an FIR under Sections 376, 120B & 306/511 IPC was registered at Police Station Bijoliya against the accused Ajeet Singh Rajput, Sunil Kumar Khateek, Dinesh Kumar Khateek, Satya Narain Singh @ Pintu Singh Rajput and Sonu Nayak. According to the statement of the deceased in the Parcha Bayan, on 30.10.2013, she was subjected to rape by the accused Ajeet Singh; the other co-accused assisted the main accused as they took her to the backyard of the college premises where she was subjected to rape. She further stated that a video clipping of the crime was also prepared and Ajeet Singh threatened her that if she disclosed the incident to anyone, he would kill her. She further stated that today (i.e. 23.12.2013) when she talked to Ajeet Singh and asked as to why he was refusing to marry her when he had promised for the same, Ajeet Singh replied that it was not his fault, therefore, he would not marry her. He told her that she was free to do as she desired. Therefore, she went to meet Ajeet Singh’s mother at Motara Kheda who asked Ajeet Singh to give a sum of Rs.5,000/- to the victim so as to buy her silence. After that, she returned to her house at about 6.00 pm. She feared that her family’s reputation would be tarnished and thus, she poured kerosene on her body and immolated herself. After that, she returned to her house at about 6.00 pm. She feared that her family’s reputation would be tarnished and thus, she poured kerosene on her body and immolated herself. She stated that Ajeet Singh was entirely responsible for the incident. 4. On the basis of said Parcha Bayan, FIR No.251/13 was registered at Police Station Bijoliya for the offences punishable under Sections 376, 120B & 306/511, IPC and investigation was undertaken. 5. During the investigation, the dying declaration of Mst.S, the victim, who was admitted in the Community Health Centre, Bijoliya was recorded. As she expired, offence under Section 306 IPC was applied to the case. 6. After concluding investigation, charge-sheet for the offences punishable under Sections 376(d) & 306, IPC was filed against all the accused named in the FIR. Thereafter, the case was committed for trial to the Court of Additional Session Judge (Women Atrocities Cases), Bhilwara (hereinafter referred to as ‘the learned trial Court’). Learned trial Court framed charges against the accused-appellant as well as the co-accused, who denied the same and claimed trial. The prosecution examined as many as 34 witnesses and got exhibited 117 documents/articles. Statements of the accused persons were recorded under Section 313, Cr.P.C. who denied the prosecution allegations. Ajeet Singh stated that he had been falsely implicated in the case because he was a student leader being the President of the Student Union and Mst.S being associated with the rival group, implicated him at the instance of his opponent student leader Harish Jat. He further stated that he neither promised Mst.S that he would marry her nor did he subject her to rape. It was Mst.S who had asked him to marry her but on refusal, she falsely implicated him in the case. On behalf of the accused, in all 6 witnesses were examined and 6 documents were exhibited in defence. 7. Dinesh Kumar Khateek expired during trial and the proceedings were dropped qua him on 13.06.2017. 8. After conclusion of trial, learned trial Court vide impugned judgment dated 17.07.2018 held the accused-appellant Ajeet Singh guilty for the offences under Sections 376 & 306, IPC and consequently convicted him as mentioned above. So far as other co-accused are concerned, learned trial Court acquitted all of them giving them benefit of doubt. 9. Aggrieved against the impugned judgment dated 17.07.2018, the present appeal has been preferred by appellant Ajeet Singh. 10. So far as other co-accused are concerned, learned trial Court acquitted all of them giving them benefit of doubt. 9. Aggrieved against the impugned judgment dated 17.07.2018, the present appeal has been preferred by appellant Ajeet Singh. 10. The first ground raised by Shri Dhirendra Singh, learned Senior counsel appearing for the accused appellant was that the present incident of rape as alleged is a totally false and concocted story. Learned Sr. counsel submitted that as per the prosecution story, the victim was allegedly subjected to rape on 30.10.2013 and thus, there was no reason or cause why she remained silent for a period of two months and did not inform about the alleged incident of rape to anyone. He urged that the significant delay in lodging a report of the alleged incident of rape is fatal to the prosecution case. 11. The second ground raised on behalf of the accused-appellant was that Mst.S, the victim was 21 years of age and was mature enough to take decisions of her own. Even as per her Parcha Bayan (Ex.P/21), the accused never promised that he would marry her and therefore, it could not have been concluded that the refusal to marry by the accused amounted as an instigation to the victim for committing suicide. Learned Sr. counsel further submitted that conviction of the appellant is based totally on the statements of partisan witnesses who were all the family members of Mst.S, the victim and her Parcha Bayan and dying declaration, which are contradictory and unworthy of credence. All the witnesses examined on behalf of the prosecution being mother, father, sister and brother of the deceased could not have been relied upon by learned trial Court as they are interested witnesses and moreover, their statements were based on the alleged information given to them by Mst.S, the victim after setting fire to herself, which in itself is unbelievable and cooked up story. 12. Thirdly, learned Sr. counsel argued that learned trial Court committed a grave error in convicting the appellant when on the basis of the same set of evidence and facts, the other co-accused were acquitted giving them the benefit of doubt whereas the case of the appellant as well as the other co-accused stood on the same footing and all of them had also been named by Mst.S, the victim in her Parcha Bayan. According to learned counsel, the prosecution miserably failed to prove its case beyond all reasonable doubt and the learned trial Court seriously erred in convicting the appellant ignoring the major contradictions, discrepancies and infirmities appearing in the prosecution case. 13. Per contra, learned Public Prosecutor submitted that the present is a clear case proved on record corroborated by oral as well documentary evidence. It was submitted that the prosecution has proved the offences against the accused appellant beyond all manner of doubt and therefore, the conviction of the appellant as recorded by learned trial Court is perfectly valid and deserves to be upheld. 14. We have heard learned counsel for the accused-appellant as well as learned Public Prosecutor, perused the impugned judgment passed by the learned trial court, appreciated the evidence and have gone through the complete record of the case. 15. As is evident from a bare perusal of the impugned judgment, conviction of the accused-appellant has been based primarily on the Parcha Bayan (Ex.P/21) of Mst.S, the victim; as well as the suicide notes recovered from her house during the investigation. While relying upon the dying declaration (Ex.P/60), learned trial Court held as under: ^^e`rdk }kjk mDr Ádkj ls xokg ihŒMhŒ&22 dks fn;s x;s e`R;qdkfyd dFku ls Hkh ÁsflMsUV vthr flag 'kDrkor }kjk mlds lkFk tcju [kksVk dke djuk rFkk mls 'kknh ds fy, oknk djds euk djuk o mls rax djds mls vkRegR;k ds fy, nq"Ásfjr djuk nf'kZr gksrk gSA** 16. The most crucial evidence relied upon by the learned trial Court is Parcha Bayan of the Mst.S, the victim which deserves consideration at the first instance. 17. The most crucial evidence relied upon by the learned trial Court is Parcha Bayan of the Mst.S, the victim which deserves consideration at the first instance. 17. For the purpose, it would be fruitful to reproduce both the ‘Parcha Bayan’ and the ‘Dying Declaration’ of Mst.S, the victim: Parcha Bayan (Ex.P/21): ^^lqJh laxhrk iq=h f'koflag tkrh jko.kk jktiwr mez 21 lky iSlk iढkbZ fuoklh fctkSfy;k Fkkuk fctkSfy;k r`rh; o"kZ ek.Myxढ us nfj;kIr iqfyl ij c;ku fd;k dh fnukad 30 vDVwcj 2013 dks Jh vthr flag jktiwr ÁslhMsUV dkyst ek.Myxढ us esjs lkjs diMs+ mrkj fn;sA dkyst ds fiNokMs esa esjs dks cgyk Qqlyk dj cqyk;k vkSj esjs lkFk vthr flag jktiwr o mlds lkFk galu fliw] lksuw uk;d ihUVw vthr flag ds fjys'ku yxrk gSA lquhy igkM+h;k buesa ls vthr flag us gh esjs lkFk cykRdkj fd;k FkkA bu lcus esjs dks cqykdj [kksVk dke vthr flag ls djk;k FkkA vthr flag us esjh fDyhihax Hkh fd FkhA mlds ckn vkt rd esjs dks /kedh nsrk jgk dh vxj fdlh dks crk;k gS rks tku ls [kRe dj nawxk vkt 1&1@2 cts fnu dks ek.Myxढ dkyst esa vthr flag ls dkyst esa lkeus ckr fd rqus esjs dks 'kknh dk oknk fd;k vc D;k euk dj jgk gSA rc mlus dgk fd esjh dksbZ xyrh ugha gSA eSa rsjs ls 'kknh ugha d:axkA rsjh bPNk vkos tks dj yks mldh eka ds ikl eksVjk [ksM+k xbZ rc mldh eeh dks dgk dh bldks 5000@& :i;s ns nks rkfd pqi gks tk;sxh mlds ckn eSa vius ?kj vk xbZ ml le; 6 ihŒ,eŒ gks x;s gSA fQj ?kj ij dsjkslhu iM+k FkkA o eSa esjs ifjokj dks cnuke ugha djuk pkgrh Fkh blfy;s eSa dsjkslhu esjs 'kjhj ij Mky fy;k esjs lkFk tks ?kVuk gqbZ ftldk lEiw.kZ ftEesnkjh vthrflag jktiwr fd gSA** Dying declaration (Ex.P/60): ^^Á'u% vkidk uke D;k gS\ mÙkj% laxhrkA Á'u% vki fdrus cfgu HkkbZ gS\ mÙkj% rhu gSA nks cfgu o ,d HkkbZ gSA Á'u% vki D;k dke djrh gS\ mÙkj% iढkbZA Á'u% dkSulh d{kk esa dgka iढrh gS\ mÙkj% f'kopj.k ekFkqj jktdh; egkfo|ky; ekaMyxढ] chŒ,Œ r`rh; o"kZ esa iढ jgh gwaA Á'u% vki dSls ty xbZ\ mÙkj% esjs lkFk [kksVk dke nks ekg igys dkyst ds ÁslhMsUV vthr falag 'kDrkor us fd;k FkkA eSus mlls dgk fd viuh xyrh eku rks mlus euk dj fn;kA 'kknh dk >wBk oknk fd;k FkkA ftUnxhHkj lkFk nsus dk oknk fd;kA esjs lkFk xyr dke fd;k FkkA mldh eEeh us 'kknh ls euk dj fn;kA esjs lkFk ÁslhMsUV vthr 'kDrkor us tcju [kksVk dke fd;k FkkA eSa mlds ?kj xbZ Fkh dy mlus tyk fn;kA dsjkslhu vthr us Mkyk FkkA fQj dgk fd mlls rax vkdj eSaus Mkydj vkx yxk yhA Á'u% vkidks dkyst esa dkSu rax djrk FkkA mÙkj% ÁslhMsUV vthr flag 'kDrkor djrk FkkA Á'u% dgka ij tyk;k Fkk\ mÙkj% esjs ?kj ij tyk;k FkkA Á'u% vkx fdlus cq>kbZ\ mÙkj% esjh eka us cq>kbZ FkhA Á'u% vkidks vLirky dkSu ysdj vk;k Fkk\ mÙkj% f'koflag th firkth ysdj vk;s FksA Á'u% ml le; ?kj ij dkSu&dkSu Fks\ mÙkj% dksbZ ugha FkkA Á'u% vkSj D;k dguk pkgrh gSA mÙkj% eSa gkFk tksM+dj fourh djrh gwa fd ÁslhMsUV vthr dks ltk nsuk ftlls vkSj yM+fd;ksa ds lkFk ,slk ugha djsA** 18. In the Parcha Bayan (Ex.P/21), Mst.S, the victim specifically stated that she, after reaching home at 6.00 p.m. poured kerosene on her body and set herself afire whereas in her dying declaration (Ex.P/60) recorded in presence of the Doctor she first stated ^^esjs lkFk ÁslhMsUV vthr 'kDRkkor us tcju [kksVk dke fd;k FkkA eSa mlds ?kj xbZ Fkh dy mlus tyk fn;kA** She then improved her version and stated that ^^dsjkslhu vthr us Mkyk Fkk** and in the very next breath, she again improved her version and said ^^mlls rax vkdj eSaus vkdj vkx yxk yh** On being questioned ^^dgka ij tyk;k Fkk** she replied ^^esjs ?kj ij tyk;k Fkk** Further when being asked ^^ml le; ?kj ij dkSu&dkSu Fks** she replied ^^dksbZ ugha FkkA** 19. A bare perusal of the story as set out in the Parcha Bayan (Ex.P/21) and the dying declaration (Ex.P/60) makes it clear that there are stark contradictions in these two versions of Mst.S, the victim. The prosecution has not even tried to put up a claim that Mst.S, the victim was put to fire by Ajeet Singh whereas in her dying declaration, the victim specifically stated that Ajeet Singh had set her afire. The highest case as set out by the prosecution is that after refusal by Ajeet Singh to marry her and upon being insulted by his mother, Mst.S proceeded to her home and committed suicide by setting herself afire. Whereas in her dying declaration Mst.S, the victim stated that she was put to fire by Ajeet Singh, meaning thereby, intention of the victim was to somehow entangle Ajeet Singh for the incident. It is clear that she wanted to ensure by all means that Ajeet Singh be implicated in the matter and he be punished for the same. Moresoever, in her dying declaration (Ex.P/60) she made glaring improvement from the Parcha Bayan (Ex.P/21) and stated that Ajeet Singh had promised to support her for life time and to marry her but later he refused. In her dying declaration, she did not name the other co-accused persons whom she had named in her Parcha Bayan. Therefore, it is crystal clear that there are stark contradictions in the two statements of Mst.S and it seems that her intention had been somehow to implicate Ajeet Singh in the offence. 20. In her dying declaration, she did not name the other co-accused persons whom she had named in her Parcha Bayan. Therefore, it is crystal clear that there are stark contradictions in the two statements of Mst.S and it seems that her intention had been somehow to implicate Ajeet Singh in the offence. 20. So far as the allegation of rape is concerned, learned trial Court, while acquitting other co-accused by giving them the benefit of doubt, reached to a conclusion that the prosecution has failed to prove their involvement in the crime beyond reasonable doubt. The specific version of Mst.S, the victim in the Parcha Bayan was that the other co-accused took her to the backyard of the college premises where Ajeet Singh subjected her to rape. Learned trial Court reached to a categoric conclusion that the involvement of other co-accused in taking Mst.S to the place of crime was not established. In this background, the conclusion that Ajeet Singh subjected the victim to rape in the backyard of the college does not sound logical. Moreover, it is clear on record that on 30.10.2013, i.e., the alleged date of commission of rape, there was an NSS Camp organised in the College and more than 70 students were participating therein. It cannot be countenanced that in presence of so many students in the college, it would have been possible for the appellant to have subjected the victim to forcible rape against her wishes. Moreover, it has no where been the version of the deceased that she was forcibly taken to the place of crime or that the appellant committed forcible sexual intercourse with her against her wishes. Rather, she stated in the Parcha Bayan that she was lured to the backyard of the college. There was, thus, no element of force in the alleged act of sexual intercourse. As the victim was a major girl, the theory of allurement does not stand in the eyes of law. Rather, as per the two statements (supra), there was not a whisper that the accused Ajeet Singh indulged in the act of sexual intercourse with the victim after giving her the assurance of marriage. It has also not been the version of the deceased that she shouted for any help or that she was wrongly confined at the place of crime against her wishes. It has also not been the version of the deceased that she shouted for any help or that she was wrongly confined at the place of crime against her wishes. Rather, it is clear on record that the deceased went to the alleged place of crime along with the other co-accused and after the alleged act of rape, she was driven back to the gate of the college by one of the co-accused. It is also clear on record that Mst.S did not talk about the said incident to any one till 23.12.2013, that is for a period of almost two months. Even the witness Vishaka (P.W.12), who allegedly accompanied Mst.S to Ajeet Singh’s place to talk to her mother, specifically admitted that Mst.S never informed her about any such incident. In the Parcha Bayan (Ex.P/21), the victim alleged that after the incident of 30.10.2013, the accused continued to extend threat of killing her. However, this theory is ex-facie unbelievable in face of the claim made by the victim that the accused had made a promise to marry her. The contradiction in two theories is absolutely irreconcilable. In addition thereto, we may note that in the dying declaration (Ex.P/60), there is not a whisper of allegation that the accused had extended any threat to the victim after the so-called incident of forcible intercourse which could have acted as a deterrent for her to lodge a timely report. Thus, the significant delay in lodging the FIR definitely impacts credibility of the story put-forth in the two statements of the deceased. Therefore, on the basis of material available on record and the statements of the witnesses examined at the trial, it cannot be accepted that the rape as alleged was committed on Mst.S, the victim by the accused-appellant Ajeet Singh on 30.10.2013. If at all, any such incident happened, it was with the consent of both persons. 21. So far as the alleged suicide notes relied upon by learned trial Court are concerned, in considered opinion of this Court, the same could not have been relied upon by the learned trial Court as the same were not proved by any FSL Report which could prove the handwriting to be of Mst.S, the victim. It has been specifically admitted by the Investigating Officer that the said suicide notes were never sent to Forensic Science Laboratory for comparison by Handwriting Expert. It has been specifically admitted by the Investigating Officer that the said suicide notes were never sent to Forensic Science Laboratory for comparison by Handwriting Expert. Therefore, in absence of any evidence to confirm that the notes were scribed by the victim, they could not have been relied upon by learned trial Court. Further, the statements of mother and sister of the deceased had been that Mst.S came late on 23.12.2013 and when asked, she said that because of the bus getting late, she got delayed. Soon after that, she went to the Bada situated at the backyard of her house and ten minutes later, her cries were heard upon which her mother went to the Bada and saw that Mst.S had set herself afire. It has not been the version of the mother or the sister of the deceased that before putting herself to fire, she went to her room and thus, there was neither time nor opportunity for the victim to have written those notes. 22. Moreover, there are two suicide notes available on record, first being on the entire page and the other being a single line. First suicide note finds place at 5th or 6th page of the note book whereas second suicide note is on 4th last page of the note book. Moreover, even seen from naked eyes, it is clear that the handwriting on both the suicide notes is totally different. Therefore, in absence of any corroborative evidence, it cannot be concluded that the alleged suicide notes were written by Mst.S and the same ought not to have been relied upon by learned trial Court. 23. One most glaring fact of the case is that Mst.S had specifically alleged that Ajeet Singh recorded a video clipping and threatened that he would make the same viral. It is clear on record as admitted by the Investigating Officer in his evidence that neither any video clipping was recovered from the mobile of accused Ajeet Singh nor such video clip was proved by the prosecution during the trial. Therefore, the said version of the deceased can also not be relied upon in absence of corroborative evidence. None of the witnesses including the family members of the deceased have stated that Mst.S had ever talked to them of any incident of rape or about any video clipping or any threatening being given to her by Ajeet Singh. 24. Therefore, the said version of the deceased can also not be relied upon in absence of corroborative evidence. None of the witnesses including the family members of the deceased have stated that Mst.S had ever talked to them of any incident of rape or about any video clipping or any threatening being given to her by Ajeet Singh. 24. Mahendra Singh Chouhan (P.W.1), the brother of the deceased, in his statement specifically stated that Ajeet Singh first promised to marry Mst.S then raped her and ultimately refused to marry her. He admitted that his sister did not talk or inform him ever that she had been subjected to rape prior to 23.12.2013. All the witnesses stated that it was only after Mst.S had set herself to fire, for the first time, she informed them of the alleged incident of rape and of having been given the promise of marriage by Ajeet Singh. 25. Even if the prosecution story is to be believed, it can be a case of refusal to marry by the accused-appellant, aggrieved of which the deceased committed suicide. For the sake of contemplation, the only evidence in support of this conclusion would be the two statements of the deceased : (1) The Parcha Bayan (Ex.P/21 and; (2) The Dying Declaration (Ex.P/60). 26. A careful perusal of the dying declaration (Ex.P/60) would indicate that the deceased made a bald allegation that the accused gave her a false promise of marriage and assured to support her for lifetime. However, this assertion in the dying declaration is very vague. In contradiction, a perusal of the Parcha Bayan recorded prior in point of time would indicate that the victim did not utter a single word that it was the accused who promised to marry her or that she was induced to establish sexual relations under a false promise of marriage. The words spoken by her are reproduced herein-below: ^^fd rqus esjs dks 'kknh dk oknk fd;k vc D;k euk dj jgk gSA rc mlus dgk fd esjh dksbZ xyrh ugha gSA eSa rsjs ls 'kknh ugha d:axkA** 27. These words spoken by her in the Parcha Bayan would rather indicate that it is she, who imputed that Ajit Singh had promised to marry her and was trying to wriggle out of the said assurance. These words spoken by her in the Parcha Bayan would rather indicate that it is she, who imputed that Ajit Singh had promised to marry her and was trying to wriggle out of the said assurance. As per the Parcha Bayan (Ex.P/21), the deceased met the accused on 23.12.2021 and he bluntly refused her proposal of marriage. The deceased then went to meet the mother of the accused who suggested that a sum of Rs.5,000/- should be paid so as to buy the silence of the girl. The victim then, proceeded to her home. She felt that her family’s reputation would be tarnished and thus, she poured kerosene on her body and set herself to fire. However, as against this version in the Parcha Bayan, while giving dying declaration (Ex.P/60), the girl gave out highly contradictory version. In this statement, she alleged that Ajeet Singh gave her a false promise of marriage and his mother opposed the proposal. 28. Apparently thus, the evidence regarding the victim having been given a false assurance of promise and owing to the refusal of the accused, she being instigated to commit suicide, is highly contradictory and vacillating and is not sufficient to affirm the guilt of the accused. 29. In view of the above observations, it cannot be concluded that the accused resiled from the promise to marry the deceased because of which she was instigated to end her life. 30. Resultantly, it is clear on record that the prosecution has miserably failed to prove the offences as alleged against the accused appellant and learned trial Court has erred in convicting the appellant purely on the basis of the two statements of the deceased which are highly contradictory and totally unreliable. 31. Therefore, the conviction of the appellant accused under Sections 376 & 306, IPC cannot be held to be sustainable. 32. Accordingly, the instant appeal is allowed. The order/judgment dated 17.07.18 passed by learned trial Court is set aside and the accused-appellant is acquitted from the charges levelled against him under Sections 376 & 306, IPC. 33. The accused appellant is in jail. He be released forthwith if not warranted in any other case. 34. 32. Accordingly, the instant appeal is allowed. The order/judgment dated 17.07.18 passed by learned trial Court is set aside and the accused-appellant is acquitted from the charges levelled against him under Sections 376 & 306, IPC. 33. The accused appellant is in jail. He be released forthwith if not warranted in any other case. 34. However, keeping in view the provisions of Section 437A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety bond in the like amount before the learned trial Court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Hon’ble Supreme Court. 35. Record be sent back to the trial court forthwith.