P. G. Agarwal, J. — This criminal appeal is directed against the judgment and order passed by the Additional Sessions Judge, Nagaon in Session Case No. 180 (N)/92 on 30.1.97. In the above referred Session's case as many as 12 accused persons were tried for the offence under section 302/34 IPC. On conclusion of the trial, ten (10) accused persons were acquitted. Accused Hafijuddin @ Fagu was convicted of the offence under section 302 IPC and accused Abdul Kuddus was convicted for the offence under section 302/34 IPC. Both the appellants were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000 in default further imprisonment for one (1) year. Hence the present appeal. 2. The prosecution allegation is that in an incident that took place on 19.4.91, son of Subed Ali Master was assaulted by the accused persons. Next day, the accused persons armed with deadly weapons came to attack the house of Subed Ali which is situated adjacent to the house of Azizul Haque. This act was protested by Azizul Haque whereupon the accused persons attempted to assault him. Apprehending danger, Azizul Haque ran away to save himself and he was chased by the accused persons and ultimately Azizul was gheraoed at the field. Appellant Abdul Kuddus first assaulted the deceased and thereafter on his command, the co-accused appellant Hafizuddin dealt dagger blow on the neck of Azizul Haque, who fell down on the ground and he sustained grievous injuries. The injured was removed to hospital immediately, where he succumbed to the injuries. 3. On FIR being lodged by PW1, Jalaluddin, police made usual investigation , and submitted charge sheet. So far the factum of killing of Azizul Haque on the date of occurrence is concerned, in view of the overwhelming medical and oral evidence on record, this has not been seriously disputed or challenged. PW 5 is Doctor Brojen Bora, who held the autopsy over the dead body and found the following ante-mortem injuries on the person of the deceased : "A straight injury just above the sterno cavicular joint in the middle of 2.5 cm depth 0.5 cm width 16 cm depth directing backward and downward cutting through the structures like muscle, tracea, nerves, vessels, pleura and right lung with anti mortem clotted blood in the thoracic cavity.
No other external and internal injury in seen." The Doctor has further opined that the above injury could have been caused by any sharp cutting weapon like dagger etc and this single injury was sufficient " to cause death of a normal human being. 4. The entire prosecution case rests on the testimony of the three (3) eye witnesses namely Jalaluddin, PW 1, Md Maniruddin, PW 2 and Md Rafiqual Islam, PW 3. PW 3 is the teen aged son of the deceased, who was waterish father at the relevant time. He has deposed that on the early hours of the fateful day, the accused persons armed with lathi, dao etc raised commotion with a view to killing their neighbour Subed Master. The deceased, thereafter, intervened by stating "Yesterday you assaulted Subed Master's son and why have you come again to kill Subed Master? If you do anything today I shall stand a witness to it" Thereafter, appellant Kuddus ordered the other accused persons to catch his father and the accused persons chased his father His father then ran towards the field but he was ultimately gheraoed. PW 3 also followed him. Accused Abdul Kuddus caught hold his father's hair and dealt some blows and thereafter asked co-accused Hafizuddin to finish his father. Immediately, accused Hafizuddin took out a dagger and stabbed his father on the neck and his father fell down on the ground. The accused persons, thereafter ran away. 5. PW 1 and PW 2 who were also eye witnesses have fully supported the evidence of PW 1 and corroborated him on all material particulars. The three (3) eye witnesses were cross examined at length, but nothing has come out to show that they are deposing falsely or that they have invented story, which is false. The Medical Officer's evidence's record fully corroborated the oral testimony as regards the nature and site of the injury and the weapon used. PW 4, a co-villager also arrived at the place of occurrence immediately after the incident and has supported the prosecution case. 6. Admittedly PW 1, 2 and 3 are close relation of the deceased but they are natural witnesses as the occurrence took place in the early hours of the day and near their residence when PW 3 young son was with the father.
6. Admittedly PW 1, 2 and 3 are close relation of the deceased but they are natural witnesses as the occurrence took place in the early hours of the day and near their residence when PW 3 young son was with the father. They cannot be termed as interested witnesses as none of them had any interest in shielding the real culprit and falsely implicating the accused. Only because PW 3 is the son of the deceased, his evidence does not loose credibility on that score. All the three (3) eye witnesses have categorically stated that it was accused Hafizuddin who dealt the fatal blow on the deceased. As a matter of fact this is a case of single ^ blow which has been attributed to accused Fagu @ Hafizuddin. 7. In view of the above, the learned counsel for the appellant has submitted that so far the accused Abdul Kuddus is concerned there is no material to rope him under section 34 IPC. The evidence on record shows that the accused persons were led by the accused Abdul Kuddus and when the deceased protested, it was he who ordered the accused persons to kill the deceased. The accused persons followed the direction and ultimately gheraod the deceased. Thereafter, it was this accused Abdul Kuddus who first assaulted Azizul and ordered the co-accused to finish him. He also caught hold of the hairs of the deceased to assist the co-accused to deal the fatal blow. Thus evidence on record clearly suggest that Abdul Kuddus was the king in behind the entire incidence and the co-accused acted on his prompting. The involvement of Abdul Kuddus in the incident is well established and he cannot escape liability although the blow was not dealt by him. We find absolutely no force in the submission that accused Abdul Kuddus deserves acquittal. 8. The learned counsel for the appellant has further submitted that this is a case of giving single blow only and as such intention to commit murder cannot be inferred. In a case of murder the number/quantity of blows is not the only the parameter to infer the existence of intention of the assailant, but the entire facts and circumstances leading to the incident are to be considered.
In a case of murder the number/quantity of blows is not the only the parameter to infer the existence of intention of the assailant, but the entire facts and circumstances leading to the incident are to be considered. As stated above we find that the accused persons did not like the interference of the deceased and they chased him from the house to the field, armed with deadly weapons and appellant Hafijuddin gave the fatal blow with such a force that all the nerves, vessels, pleura and right lung were cut to the extent of 16 cm depth i.e. more than 6 inches. In the opinion of the doctor, the said injury was sufficient to cause the death of normal human being. The deceased was a young man of about 35 years of age and he also could not resist the assault. The intention to cause death was writ large on the acts of the appellants. The young man was put to death in broad day light only because he protested against the assault to an innocent person. g 9. During trial Abdul Kuddus took up the plea of alibi but failed to substantiate the same. The investigating Police Officer PW 6 did try to help the accused but his help was of no avail. He admits that this accused Abdul Kuddus was working as a police informer on certain matters. This link with the police might be the reason to have emboldened the appellant Abdul Kuddus to commit such heinous offence in broad day light. The plea of alibi can be succeeded only if it is shown that accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of PW 6 is that this Abdul Kuddus came to the police station at 7 AM. The incident took place at 6 AM and the place of occurrence is only 3 KMs from the police station. Thus, it cannot be said that because of the presence of the accused Abdul Kuddus at police station at 7 AM he could not have remain present at the place of occurrence at 6 AM. The plea of the alibi was rightly rejected by the trial Court. In view of what has been stated above we find absolutely no merit in this appeal. Accordingly the appeal is dismissed.