The judgment established that even if Section 149 IPC is not attracted, the appellants could still be convicted with the aid of Section 34 IPC if the common intention to commit the crime and the participation of the appellants in the commission of the crime were established.

JUDGMENT

Dr. S. Muralidhar, CJ. - This appeal is directed against the judgment dated 22nd September, 2007 passed by the learned Sessions Judge, Mayurbhanj in Sessions Trial No.188 of 2000 arising out of G.R. Case No.290 of 1999 corresponding to Mahuldiha P.S. Case No.34 of 1999.

2. By the impugned judgment the Appellants have been convicted for the offences punishable under Sections 323, 302, 436, 452 read with Section 149 IPC and under Sections 147 and 148 IPC.

For the offences punishable under Section 302/149 IPC, they have been each sentenced to rigorous imprisonment (RI) for life and to pay a fine of Rs.10,000/- and in default to undergo RI for one year; for the offence under Section 436 IPC to RI for seven years and to pay fine of Rs.5000/- and in default RI for six months; for the offence under Section 452 IPC RI for five years and fine of Rs;.5000/- and in default RI for six months; for the offence under Section 323 IPC, RI for one year for the offence punishable under Section 147 IPC, RI for two years and for the offence punishable under Section 148 IPC, RI for three years. All sentences were directed to run concurrently.

3. The case of the prosecution is that on 1st/2nd September, 1999 at around 2 am in the night when some persons belonging to the Christian community were performing a dance in front of the Jambani Church, the present Appellants along with some others armed with lathis formed an unlawful assembly, trespassed into the church and asked for Father Arul Doss who was sleeping in a room in the church. Hearing their noise Kete Singh Khuntiar (Informant, PW 3) came out of the mosquito net in which he was sleeping. Somebody assaulted PW 3 on the rear of his head by a lathi and he became senseless. When after some time he regained his senses, PW 3 heard Father Arul Doss shouting loudly. Out of fear, PW 3 went into the jungle and informed the Sarat P.S. This information was ultimately forwarded to the jurisdictional P.S. at Mahuldiha the following morning i.e. 2nd September, 1999. The FIR was registered as Mahuldiha P.S. Case No.34 of 1999. The FIR was against four unknown persons.

4. Trinath Sahoo (PW 22), who was the OIC of Mahuldiha P.S. visited the spot and held an inquest on the dead body of Father Arul Doss. PW 22 prepared an inquest report, collected the sample earth and blood-stained earth from the house of PW 12 where the deceased was first found lying. He also seized four arrows lying in the house of PW 4 and certain other articles. On gathering information, the Appellants were arrested by PW 22. At the end of the investigation, a charge sheet was submitted against the present four Appellants and others. Finally, 17 persons, including the present Appellants were sent up for trial after charges were framed against them under Sections 120B/149, 323/149, 147, 148, 302/149 and 436/149, 452/149 and 212/149 IPC. Whereas the present four Appellants were convicted for the offences aforementioned, the remaining 13 accused were acquitted of all the offences.

5. For the prosecution, 23 witnesses were examined. None was examined for the defence. On an analysis of the evidence, the trial Court concluded in the impugned judgment that the prosecution had been able to prove the guilt of the four Appellants beyond all reasonable doubt. The findings of the trial court were as under:

(i) The evidence of PWs 2 and 5 was natural and their presence at the place of occurrence could not be doubted. Except certain bald suggestions to them in the cross-examination, there was nothing elicited that could impeach the credibility of their evidence.

(ii) PW 2 remembered the features of the four Appellants as the persons who had come to the Church earlier in search of buffalos in the house of Birsingh Ho and was therefore able to identify them. PW 5 could only identify Appellant No.1 (Dara Singh) among the accused that came to the Church.

(iii) It was proved that the present four Appellants were among the 10 to 15 or more persons who formed an