The central legal point established in the judgment is the court's analysis of the evidence and finding that the accused persons were not guilty of the offenses under sections 366/354/34, IPC.

JUDGMENT :

D. Dash, J.

1. The appellants in this appeal have called in question the judgment of conviction and order of sentence dated 25.7.1989 passed by the learned Addl. Sessions Judge, Jeypore in S.C. No. 52/53 of 1989 (S.C. 38 and 39 of 1988).

The appellants have been convicted for commission of offence under section 366/354/34, IPC and each of them have been sentenced to undergo rigorous imprisonment for a period of seven years for offence under section 366/34, IPC and rigorous imprisonment for two years for the offence under section 354/34 with the stipulation that those would run concurrently.

2. The prosecution case in short is that on 10.02.1988 one Mangala Pujari of village Ramanaguda was performing the funeral ceremony of his paternal uncle in his house. He had invited many guests to attend the said function. P.W.1, victim, the accused persons and many others were present in that function. 'Dhemsa' dance being performed nearby, P.W.1, the deceased and the accused persons had taken part therein. Sometime thereafter they having come outside, took rest. It is the further case of the prosecution that accused Arjuna Pujari dragged P.W.1 and accused Gurunath Pujari dragged the deceased towards a nearby Mohua tree. P.W. 1 having been able to rescue herself fled away and then accused persons took away victim and committed rape upon her. On the next morning, the dead body of the victim was found hanging from the branch of the Mahua tree being tied at the neck by a lungi. P.W. 1 then disclosed this fact to the brother of the deceased and others. Panchayat being convened in the village. P.W. 1 narrated the incident there. So on the next day, P.W. 5 lodged an FIR at the police station which led to registration of one Unnatural Death (U.D.) case and the enquiry was taken up. Brother of the deceased having found that the police is inactive in the matter, then lodged the complaint in the court of law on 15.2.1988 which stood registered as I.C.C. 6 of 1988. The court below after enquiry and calling for a report from the Office-In-Charge of Mathili Police Station under section 210, Cr.P.C.; on perusal of the post mortem and other documents took cognizance of offence under section 376/302, IPC and vide order dated 23.1.1989. These accused persons thus stood arraigned in the said case. The case was then committed to the court of Sessions. Thereafter, Mathili P.S. Case No. 11 of 1988 being registered, charge sheet was submitted against the accused persons for commission of offence under sections 354/366/306/34, IPC. That the case was also committed to the court of Sessions. Both the cases being clubbed together, trial commenced.

3. The prosecution in order to establish its case examined nine witnesses and proved the first FIR leading to registration of U.D. case (Ext. 4), post-mortem report (Ext. 3), later report (Ext. 8), inquest report (Ext. 1) etc. The accused persons in their defence examined two witnesses.

4. The trial court on analysis of evidence while holding that the prosecution has failed to bring home the charges under sections 376/302/34, IPC against the accused persons, has found them guilty for commission of offence under sections 354/366/34, IPC and accordingly, they being convicted thereunder have been sentenced as aforestated.

5. Heard learned counsel for the appellants and learned Standing Counsel.

Perused the judgment of the trial court.

6. The important witness on behalf of the prosecution is P.W. 1. This P.W. 1 having married three years prior to the incident, there had been a divorce and she was then residing with her parents. That victim also having married and having withdrawn from the society of her husband, was then residing with her parents. It has been stated by her that when accused Arjuna was dragging her. She escaped from his clutch by giving a bite at his hands. This dragging of P.W. 1 and the victim by accused was outside the place where the 'Dhemsa' dance was being performed. During then one opera show was al