Point of Law : When there are eyewitnesses to prove the charge, failure on the part of the prosecution to establish every link in the chain of circumstance would become irrelevant.

JUDGEMENT :

Suman Shyam, J.

Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. T. Deuri, learned counsel appearing for the appellant. Also heard Mr. M. Phukan, learned Public Prosecutor, Assam representing the State. None has appeared for the informant/respondent No.2.

2. By the judgment dated 19.09.2019 passed by the learned Additional Sessions Judge No.1, Kamrup(M), Guwahati in Sessions Case No.85(K)/2015 the sole appellant was convicted for committing the murder of his brother Sirajul Ali Ahmed by firing a bullet at him. Assailing the impugned judgment, the present appeal has been filed.

3. The prosecution story, in a nutshell, is that the deceased Sirajul Ali Ahmed was in his shop by the name ‘Maazira Hardware’ situated in front of the NRL Petrol Pump at Adabari, Guwahati when a quarrel started between him and his younger brother Md. Saifuddin Ahmed i.e. the accused regarding parking of a motorcycle and a bicycle in front of their shops. When the quarrel was going on, at around 7.45 a.m. on 10.02.2013, Ms. Rubi Begum i.e. wife of the accused had called her father-in-law Md. Soifuddin Ali Ahmed who came to the place and directed the accused to bring the gun and shoot down the deceased. Accordingly, accused Saifuddin brought the gun from his residence and fired at the deceased in front of the shop and in presence of local people including Md. Samsul Ali Ahmed, who is the elder brother of the deceased and his son Md. Jitu Ali.

4. On 11.02.2013, the wife of the deceased viz., Arzeda Khanam had lodged an ejahar before the Officer-in-Charge, Maligaon Police Station, Maligaon reporting the incident. In the F.I.R. it was mentioned that after killing her husband, accused Md. Saifuddin Ahmed had made a phone call to the Maligaon Police Station so as to give a twist to the incident and had informed the police that it was the elder brother Samsul Ali Ahmed who had actually shot the deceased. According to the informant, the incident was a part of a pre-planned conspiracy between Md. Soifuddin Ali Ahmed and his son Md. Saifuddin Ahmed alias Sahil and Ms. Rubi Begum i.e. the wife of Saifuddin Ahmed, to kill the deceased due to some property dispute.

5. On receipt of the ejahar, Jalukbari P.S. Case No.105/2013 was registered under Sections 120(B)/302 of the IPC and the matter was taken up for investigation. The case was registered against two accused persons viz., the appellant Saifuddin Ahmed and his father Soifuddin Ali Ahmed. However, it appears from the record that during the course of investigation, Soifuddin Ali Ahmed had died as a result of which, the Investigating Officer (I.O.) had submitted charge-sheet under Section 302 of the IPC read with Sections 25(1B)(a)/27(1) of the Arms Act against the appellant only.

6. On committal of the case for trial by the Sessions Court, formal charge was framed against the appellant under Section 302 of the IPC read with Section 27(1) of the Arms Act, 1959 and the same was read over and explained to the accused. However, since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial.

7. The prosecution had examined two witnesses viz., PWs-1 and 2 as eyewitnesses. Besides them, 9 other witnesses including the doctor, who had conducted the post-mortem examination, the I.O. who had carried out the investigation and the Scientist in the Forensic Laboratory were examined as official witnesses. After recording the evidence adduced by the prosecution side, the accused was examined under Section 313 Cr.P.C. and his statements recorded whereby, he had not only denied all the incriminating circumstances put to him but had also taken a plea that at the time of the incident he was confined in his home due to paralysis suffered by him in one of the legs and therefore, had nothing to do with the incident. As a matter of fact, according to the accused, a quarrel took place between his deceased father and brother Samsud, who were trying to snatch the gun from each other’s h