Allahabad HC Affirms Murder Conviction of Jabir, Holds Injured Eyewitnesses Reliable Despite Minor Discrepancies
A Division Bench upheld the 1988 Sessions Court conviction of Jabir for murder and attempt to murder, finding injured witnesses credible and common intention under Section 34 IPC established.
The High Court of Judicature at Allahabad has dismissed a criminal appeal filed against a 1988 Sessions Court judgment that convicted three persons for the murder of Mamman Hussain and the assault of two others on 18 December 1985. A Division Bench comprising Justice Salil Kumar Rai and Justice Padam Narain Mishra, with the judgment delivered by Justice Salil Kumar Rai, affirmed the conviction and sentences in respect of the sole surviving appellant, Jabir (appellant no. 2), under Sections 302, 307 and 323 of the Indian Penal Code, each read with Section 34 IPC. The court held that the evidence of two injured eyewitnesses was consistent on all material features of the occurrence, that minor discrepancies in their testimony did not affect the core of the prosecution case, and that the circumstances as a whole established the common intention required by Section 34 IPC.
The Occurrence and Trial Court Proceedings
The prosecution case arose from an incident on the afternoon of 18 December 1985 at about 4.00 p.m. Zahid, the first informant, and his father Mamman Hussain were proceeding to cut fodder from a machine installed within their enclosure when the three appellants — appellant no. 1 armed with a lathi and appellant nos. 2 and 3 armed with tabals — entered the enclosure and assaulted them. When Zahid's wife Sharifan intervened, appellant no. 1 also assaulted her with the lathi. On hearing the cries of the victims, several persons arrived and challenged the appellants, who then left.
The prosecution attributed a background motive to the assault. About four or five months before the occurrence, the wife of Ashraf — nephew of appellant no. 1 — had allegedly eloped, and Ashraf suspected Ahsan, a person distantly related to Zahid, of being responsible. Ashraf also suspected Mamman Hussain and Zahid of having facilitated the elopement. Additionally, on the morning of 18 December 1985, appellant no. 3, Sabir, had a scuffle with Zahid and left threatening to teach him a lesson that evening.
Zahid took Mamman Hussain and Sharifan to the police station, where Case Crime No. 586 of 1985 was registered at 6.15 p.m. under Sections 307 and 323 IPC, Police Station Chandpur, District Bijnor. The three were medically examined between 6.45 p.m. and 7.20 p.m. the same evening. Mamman was found to have four incised wounds, one lacerated wound on the scalp and one abrasion; one of the incised wounds, measuring 25 × 7 cm, had caused protrusion of the intestines. Mamman Hussain succumbed to his injuries on 23 December 1985.
The Sessions Judge, Bijnor convicted all three appellants in Sessions Trial No. 50 of 1986 under Sections 302/34, 307/34 and 323/34 IPC, imposing rigorous imprisonment for life under Section 302/34, three years under Section 307/34 for appellant no. 1, five years under Section 307/34 for appellant nos. 2 and 3, and six months under Section 323/34 for all three. By order dated 28 November 2019, the appeal before the High Court was declared to have abated as against appellant nos. 1 and 3, leaving only Jabir's appeal for adjudication.
Arguments Advanced Before the Division Bench
Counsel for the appellant argued that PW-1, Zahid, had given materially inconsistent evidence on whether he first took Mamman Hussain to the police station or to the hospital. When the inconsistency was pointed out during cross-examination, PW-1 became disturbed and offered no satisfactory explanation. Counsel also relied on a further inconsistency: PW-1 attributed the injury on his own head to a tabal blow but accepted in cross-examination that it might have been caused by a lathi and could not identify which accused had struck him. The absence of the case crime number from the letter of reference to the doctor was also cited as suggesting that the FIR was ante-timed.
A separate contention concerned the non-examination of Ahsan and the other persons — Jahri and Bashir — named as witnesses of the occurrence in the FIR. Ahsan was described as especially material because the prosecution itself attributed the alleged motive to his suspected elopement with Ashraf's wife. The defence argued that the prosecution had withheld Ahsan deliberately and that his non-examination left a material gap both in the evidence of the occurrence and in the establishment of motive. DW-1, Sirajuddin, was examined for the defence and stated that there was pre-existing litigation between the appellants and a person related to the first informant, supporting the suggestion of false implication.
The Additional Government Advocate supported the trial court judgment. The State submitted that PW-1 and PW-2, being injured witnesses, were the most direct evidence of the assault, that the discrepancies relied upon were minor, and that non-examination of additional witnesses did not weaken a case based on reliable direct testimony. On Section 34 IPC, the State argued that the appellants arriving together armed, jointly assaulting the victims, and leaving together when challenged plainly established common intention.
The Court's Reasoning on Ocular Evidence
The Division Bench set out the applicable approach to appreciating ocular evidence. Minor discrepancies, variations in narration, errors in estimating time or sequence, and omissions which do not affect the core of the prosecution case do not ordinarily justify rejection of otherwise credible evidence. Human memory is not photographic and witnesses cannot be expected to reproduce every detail of an unexpected occurrence. The relevant question is whether the discrepancy is such as to render the testimony inherently improbable or materially affect its credibility. This principle was stated to assume particular relevance where witnesses are from a rural or rustic background.
The court also noted that the maxim falsus in uno, falsus in omnibus has no application in India, and that an inconsistency between a prior statement and court testimony must have the capacity to materially affect the version under consideration before it can discredit the witness.
Applying these principles, the bench held that PW-1's confusion about whether he first went to the police station or the hospital did not materially affect his account of the occurrence itself. The FIR was registered at 6.15 p.m., with the injured examined between 6.45 p.m. and 7.20 p.m. and a police constable present. PW-4, the examining doctor, confirmed their presence at the hospital. The defence had not challenged in cross-examination of PW-4 that they had arrived without a police reference or without police personnel. The timing recorded in the injury reports was not seriously contested. As to the absence of the case crime number from the letter of reference, the bench noted that no legal requirement had been shown making its inclusion indispensable, and that the surrounding circumstances — prompt registration, prompt medical examination and the constable's presence — did not support the inference of an ante-timed FIR.
PW-2, Sharifan, also supported the prosecution version, identified appellant nos. 2 and 3 as being armed with tabals, and denied that her injury was caused by the fodder machine or that darkness had prevented identification of the assailants. The bench found both PW-1 and PW-2 consistent on the material features of the occurrence.
Non-Examination of Witnesses and the Question of Motive
On the non-examination of Ahsan and others, the court held that such non-examination is not by itself a ground for discarding evidence that is otherwise natural, trustworthy and convincing. An adverse inference may arise where a witness was available and could have explained the genesis of the occurrence, supplied a missing link or cured an existing infirmity in the prosecution case. Here, PW-1 and PW-2 were themselves injured and directly spoke to the assault. The bench found no material infirmity in their evidence that required Ahsan's testimony to supply a missing link. His evidence would, at best, have been additional evidence on an occurrence already established by the injured witnesses.
On motive, the court acknowledged that the defence had raised valid points: Ashraf's wife had returned and was living with him, Ashraf had never lodged any report about her alleged elopement, and DW-1 had disputed the prosecution's version. However, the bench held that motive assumes considerable importance in cases based on circumstantial evidence; where there is reliable direct evidence connecting the accused with the occurrence, absence or weakness of motive ordinarily loses much of its significance. The court observed that even setting aside the elopement narrative entirely, the prosecution evidence established a scuffle between PW-1 and appellant no. 3 on the morning of 18 December 1985, followed by a threat, making the afternoon assault neither isolated nor unexplained. DW-1's testimony was found of limited weight given his denial, in cross-examination, of even knowing the name of Ashraf's wife.
Common Intention Under Section 34 IPC
The bench addressed the applicability of Section 34 IPC directly. It observed that the mere fact that several persons participated in the same occurrence does not make each liable for every offence committed during it; their participation must have a functional relationship with the offence in question. On the facts, however, all three appellants came together, arrived armed, and actively joined in the assault upon Mamman Hussain and PW-1. When Sharifan intervened, the assault extended to her as well. The appellants thereafter left together when the assembled villagers challenged them.
The bench concluded that the participation of appellant no. 2, Jabir — who was armed with a tabal — was directly connected with the offences charged, and that the circumstances as a whole established the requisite common intention. The assault was directed at vital parts of the body. The findings of the trial court were held to suffer from no illegality warranting interference.
Order
The Division Bench dismissed the appeal. The conviction of appellant no. 2, Jabir, under Section 302 read with Section 34 IPC, Section 307 read with Section 34 IPC, and Section 323 read with Section 34 IPC, was affirmed. The sentences imposed by the Sessions Judge, Bijnor were also affirmed and directed to run concurrently.
Jabir was noted to be on bail at the time of the judgment. The court directed him to surrender before the trial court within one month from 19 August 2026 and in any event on or before 20 September 2026. Upon surrender, he is to be taken into custody to serve the sentence, with the period already undergone to be adjusted in accordance with law. In the event of failure to surrender, the trial court is to take such coercive measures as are permissible in law to secure his presence and execution of the sentence.
The Superintendent of Police, Bijnor was directed to ensure execution of any warrant issued by the trial court. The trial court and the Superintendent of Police, Bijnor were directed to submit a compliance report to the High Court by 30 September 2026. The trial court record is to be remitted forthwith, and a certified copy of the judgment is to be transmitted to the trial court for information and compliance within 24 hours through the Registrar (Compliance).