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 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 also going on. Many people had gathered there. The evidence of P.W. 1 is that when accused persons dragged, they had shouted but none came to their rescue. Such evidence of P.W. 1 that none came out under the situation does not inspire confidence. However, P.W. 2 states that he was told by P.W. 1 that accused persons had been dragging her and she rescued. The evidence of P.W. 1 is that when accused persons dragged, they had shouted but none came to their rescue. Such evidence of P.W. 1 that none came out under the situation does not inspire confidence. However, P.W. 2 states that he was told by P.W. 1 that accused persons had been dragging her and she rescued. But then he says nothing as regards his response or reaction in explaining as to why no response/reaction was shown by him. P.W. 1 when states to have fled away after being able to escape, interestingly, she is again narrating about the rape upon the victim being committed by the accused persons which appears to be exaggeration and exposes the over anxiousness of the witness, P.W. 1 and that leads to doubt her version as regards the role of the accused person. She although states to have then returned to the dancing place, but says that she did not disclose the incident to anyone. For this she is not offering any explanation when so many persons there and she saw in her front that victim was dragged away and raped by the accused persons, her conduct in that manner is not normal and that as a circumstance comes to stand on the way of the reliability of her evidence. On the next morning she divulged before the brother of the victim. This P.W. 1 has also stated that the accused persons came and talked with them and then dragged. The accused persons have suggested that when they were talking, the husband of the victim came with the husband of P.W. 1 and charged them as to why they were talking and being frightened by their presence, the' victim fled away. P.W. 1 of course has stated that the husband of victim used to come and call victim to go but she was not willing to go with her husband. Her previous statement before I.O. (P.W. 8) is that the victim did not try to escape and she went with the accused persons and that has been proved through P.W. 8. The I.O. (P.W. 8) has stated to have ascertained in course of investigation that in that night, the husband of victim and the husband of P.W. 1 had chased the victim. He has proved the fact that P.W. 1 had not stated anything about rape of the victim. The I.O. (P.W. 8) has stated to have ascertained in course of investigation that in that night, the husband of victim and the husband of P.W. 1 had chased the victim. He has proved the fact that P.W. 1 had not stated anything about rape of the victim. The doctor P.W. 6 is saying to have noticed no such bodily injury upon the victim and as regards any such feature suggesting sexual assault. Accused Arjuna has not been examined to show that he had sustained injury because of the bite given by P.W. 1 on his hands. P.W. 5 is saying that P.W. 1 had not told anything before the Panchayat. The conduct of P.W. 1 as per her evidence is that having escaped she came to the dancing place, stayed till morning without disclosing about the incident to anybody rather run in support of the defence story and it cannot be overruled that the deceased when was chased by her husband and the husband of P.W. 1, escaping from their clutch she came and maintained silence so as to avoid any ugly situation immediately. Her evidence that she had the victim to have been dragged by the accused persons, and raped, her remaining silent throughout the night runs against normal human conduct and behavior. The evidence of D.Ws. 1 and 2 on the score that the victim and P.W. 1 were chased by their husbands gets support from the above conduct of P.W.1 as emerge from evidence when the evidence of P.W. 8 also provide some strength to that. With above evidence on record, the trial court's finding that the accused persons have committed offence under sections 366 and 354, IPC, in my considered view, does not stand to judicial scrutiny. In that view of the matter, the impugned judgment of conviction and order of sentence are held as liable to be set aside. 7. In the result, the appeal stands allowed and the impugned judgment convicting the accused persons for offence under sections 366/354, IPC followed by the order of sentence are hereby set aside. The bail bonds executed by them shall stand discharged.