Holding

The Supreme Court affirmed the convictions, held that the procedural delay did not invalidate the prosecution, applied s.149 IPC, and found the High Court's alteration of the death sentence to life imprisonment appropriate.

Summary

A dispute over a banner led a group of armed accused, including Aqeel Ahmad, to enter the informant's house and fire at his sons, killing both. The accused were convicted of murder under IPC s.302, with some also convicted under s.149 (murder in unlawful assembly) and s.148, receiving death and life sentences respectively. The High Court altered the death sentence to life imprisonment, prompting appeals challenging the conviction, the applicability of s.149, alleged delays in forwarding the occurrence report under CrPC s.157, and the propriety of the death penalty. The Supreme Court held that any delay in sending the report does not vitiate the investigation, the prosecution case remains reliable, s.149 IPC correctly applies, and the number of deaths is not determinative for a death sentence. Consequently, it dismissed all appeals, upholding the convictions and the High Court's alteration of the death sentence to life imprisonment.

Issues considered

The propriety of the delay in forwarding the occurrence report to the magistrate under CrPC s.157 and its impact on the investigation.
Whether the FIR was delayed or tampered with, affecting the credibility of the prosecution case.
The applicability of IPC s.149 to the accused, including the driver, in the murder committed in an unlawful assembly.
The appropriateness of confirming the death sentence versus altering it to life imprisonment.
Whether the number of victims influences the award of the death penalty.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 159, s. 174, s. 366, s. 82, s. 83
Indian Penal Code, 1860s. 148, s. 149, s. 302

Subjects

murderunlawful assemblySection 149 IPCdeath penaltyFIR delayCrPC Section 157sentencingappealSupreme Court

Judgment

[2008] 17 S.C.R. 1330

A AQEEL AHMAD
v.
STATE OF U.P. \

(Criminal Appeal No. 595 of 2007)
DECEMBER 19, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Penal Code, 1860 - ss. 302, 302 rlw. s. 149 and s. 148 -
c Accused armed with weapons entering house of informant -
Exhortation by four - Appellant and other fired at informant's
son resulting in their death - Conviction of appellant u/s. 302
and imposed death sentence - Conviction of others uls. 302 ....
rlw. s. 149 and sentenced to life imprisonment- Accused also
convicted uls. 148 with two years imprisonment - Upheld by
D
High Court however, death sentence of appellant altered to
life imprisonment- Correctness of- Held: Special report was
sent to Magistrate ·and he received the same on the fourth day
of the incident - There was no delay in lodging FIR -
Investigation commenced immediately - Even if there was
E any lapse on part of investigating officer that would not affect
credibility of the prosecution case - Furthermore, number of
deaths in a case would not be determinative factor for
awarding death sentence - Thus, order of High Court does
not suffer from infirmity- Code of Criminal Procedure, 1973
F - s. 157.
According to the prosecution case, dispute arose
b~tween the parties as regards the fixation of banner with I "
the name of FK. On the fateful day at about 4.00 pm,
accused persons-SK, SB, CA, AS, AQ and IR armed with
G weapons came to the house of informant-SK's father.
They abused informant and his sons-FK and SH, took out
,..
.,;.
the banner and burnt it. The companions of SK and SB
exhorted, and SK and AQ fired at FK and SH which ,.~

resulted in their death. People from the vicinity came
1330
H
AQEEL AHMAD v. STATE OF U.P. 1331

there and the accused went away. SA also received A
injuries. FIR was lodged at 6.25 pm. Investigation was
carried out. The site plan was prepared. The statement
of the witnesses-PW 1-informant, PW 2 and 3 was
recorded. Accused SK, SB and AQ were arrested. Their
statements were recorded and arms were recovered. 8
Accused AQ was convicted u/s. 302 IPC and sentenced
to death. Accused IR, CA, AS and SK were convicted for
offence punishable u/s. 302 r/w. s. 149 IPC and sentenced
to life imprisonment. They were also convicted u/s. 148
IPC and sentenced to two years imprisonment. Appeals
and Reference for confirmation ·of sentence was filed. C
High Court dismissed the appeals but altered the death
sentence of AQ to life imprisonment. Hence the present
appeals.
Dismissing the appeals, the court
D
HELD: 1.1. There is no doubt that forwarding of the
report to the Magistrate with reference to Section 157
Cr.P.C. is indispensable and absolute and it has to be
forwarded with earliest dispatch which intention is implicit
with the use of the word 'forthwith' occurring in Section
157 of the Code which means promptly and without any E
undue delay. The real purpose is to avoid possibility of
the improvement in the prosecution case and
introduction of distorted version by deliberations and
consultation and to enable the Magistrate concerned to
have a watch on the progress of the investigation. In the F

-,
instant case, the High Court noted that the same was
received on 20.12.2001. It observed that if there was any
lapse on the part of the investigating officer that would
not affect the credibility of the prosecution version. [Para
5] (1337-G; 1338-A-C] G
Sunil Kumar v State of Rajasthan (2005) 9 SCC 283,
Referred to.
1.2. It was submitted that the prejudice is caused
because the evidence of PWs 9 and 10 show that there
were some deliberations and improvements made. Non H
1332 SUPREME COURT REPORTS [2008] 17 S.C.R.

A examination of SA who is supposed to be injured witness
also has relevance. It is pointed out that the medical
evidence is contrary to the oral testimony. While· the
medical report shows two wound and two entries it was \
stated that firing took place once. No question was put
to the relevant witnesses on this aspect. Submissions
8
were made regarding nature of the wounds. It was also
stated that PW-1 could have used one of the cars which
he possessed and there· is no reason as to why he had
taken the deceased on scooter. This has also been
explained by the prosecution witnesses. [Paras 6, 7 and
C 8] (1338-D-F]
1;3. As regard the applicability of s.149 IPC, it is
submitted that co-accused included the driver. If they
were carrying weapons, there was no question o.f any "'
exhortation. It may have been done by the absconding
D accused. It is unlikely that the driver would give orders
to his master. [Para 9] (1338.-GJ
Sunil Kumar v State of Rajasthan (2005) 9 SCC 283,
Referred to.
E 1.4. As\ regard the submission that there was no
possibility of any false or delayed FIR and there has been
no prejudice caused, the accused persons accepted that
there was no previous enmity and, therefore, the question
of any fabricatio_n does not arise. So far as the purported
delayed registration or manipulation, it is to be noted that
F investigation commenced immediately. [Paras 11 and 12]
(1343-B; 1344-A]
Pala Singh and Anr. v. State of Punjab (1972) 2 SCC / -
640; State of Kamataka v. Moin Patel & Ors. (1996) 8 SCC
167 and Rabindra Mahto and Anr. v. State of Jharkhand
G (2006) 10 SCC 432, Referred to
1.6. PW-12 referred to the site plan and case number
was clearly mentioned. The correctness of the site plan
has not been challenged. On 18.12.2001 the proceedings
in terms of Sections 82 and 83 of the Code were initiated
H
AQEEL AHMAD v. STATE OF U.P. 1333

and non-bailable warrants were issued. On 20.12.2001 on A
the basis of the report attachment of the property was
directed. Even if there has been lapse in the investigation
that cannot affect the credibility of the witnesses. [Para
14] [1344-F-A]
Ram Bali v. State of U.P. (2004) 1OSCC 598, Relied on. B
1.7. It was highlighted that in the panchanama
prepared u/s 174 of the Code names of accused persons
were not indicated and that adds vulnerability to the
prosecution version. This plea is clearly unsustainable.
[Para 14) [1345-A] C
Amar Singh v. Ba/winder Singh and Ors. (2003) 2 SCC
518, Referred to.
1.8. The appeals filed by the accused persons are
without merit and are dismissed. As regard State's
appeal, the number of deaths in a case would not be the D
determinative factor for awarding the death sentence.
Even in the case of single victim death sentence can be
awarded taking into consideration the circumstances of
the case. In the instant case, looking to the background
facts it cannot be said that the High Court by altering the E
sentence from death to life has acted inappropriately.
Therefore, the State's appeal is also d~smissed. [Paras 15
and 16) [1347-B-D]
Case Law Reference:
(2005) 9 SCC-283 Referred to Paras 5· F
and 10 --
(1972) 2 SCC 640 Referred to Para 11
(1996) 8 SCC 167 Referred to Para 12
(2006) 10 SCC 432 Referred to Para 13
(2004) 10 s_cc 598 Relied on. Para 14 G
(2003) 2 SCC 518 Referred to Para 14
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 595 of 2007.
From the final Judgment and Order dated 23.12.2005 of H
1334 SUPREME COURT REPORTS [2008] 17 S.C.R.

A the High Court of Judicature at Allahabad in Criminal Appeal
No. 2630 of 2004. \

WITH
Criminal Appeal Nos. 596 and 597 of 2007.
Jaspal Singh, Salman Khurshid, Ratnakar Dash, Jaspal
B Singh, Salman Khurshid, lmtiaz Ahmad, Naghma lmtiaz,
Kamran Malik (for M/s. Equity Lex Associates), Vikas Bansal,
Anuvrat Sharma; Siddharth Dave and Senthil Jagadeesan for
the appearing parties.
The Judgment of the Court was delivered by
c
DR.ARIJIT PASAYAT, J.1. Challenge in these appeals
is to the judgment of a Division Bench of the Allahabad High
Court upholding the conviction of appellant Aqeel Ahmad
(Appellant in Crl. A No.595/07) in Criminal Appeal No.2630
of 2004 but altering the sentence of death as awarded by
D learned Additional District and Sessions Judge, Court No.3,
Aligarh to life sentence. Criminal Appeal No.2593 of 2004 filed
by Ashiq Ali and Criminal Appeal No.2590 of 2004 filed by
Mohammad Shakir and Chaudhary ·Aleem were also
dismissed. The Criminal Reference for confirmation of death
E sentence as referred under Section 366 of the Code of Criminal
Procedure, 1973 (in short the 'Code') was answered in the
negative. While Criminal Appeal No.595 of 2007 has been filed
by Aqeel Ahmad, the other accused persons, namely,
Mohammad Shakir, Ashiq Ali· and lrfan have filed Criminal
F Appeal No.596 of 2007. Since the accused Ashiq Ali did not
file surrender certificate, special leave petition was dismissed
so far as he is concerned. So far as accused Chaudhary Aleem
and lrfan are concerned it is submitted that they have died
during the pendency of the matter before this Court. State of
,, G U.P. has filed Criminal Appeal No.597 of 2007 questioning
alteration of death sentence to life sentence .bY the High Court.
2. Background facts leading to the trial of accused persons
as projected by the prosecution is as follows:
A report was lodged by Ahmadur Rahman Sherwani at
H Police Station, Civil Lines, Aligarh stating that some
AQEEL AHMAD v. STATE OF U.P. 1335
[DR. ARIJIT PASAYAT, J.]

construction of lane from the crossing of Amirnisha to Goshtwali A
gali was going on from the quota of Khwaja Aleem, M.L.A. A
I banner was fixed by Vyapar Mandal, Amirnisha and on the
banner, name of his son Favad Khan Sherwani was mentioned
as General Secretary. On 16.12.2001 at about 4.00 p.m,
Shakir, Sabhasad had taken out the banner. He came at the
B
house of informant armed with O.B.B.L. Gun. lrfan driver,
Chaudhary Aleem, Shakir son of Shabbir and Ashiq Ali. His
sons Favad and Shahood Ali khan were present there and they
~ started abusing them and challenged saying that how he could
dare to fix the banner and set the banner on fire. His sons told
him that since there was a festival next day, they should talk c
about it later on. Hearing this, companions of Shakir Sabhasad
exhorted and Shakir and appellant Aqueel Ahmad started firing
from their guns which hit both his sons. He alongwith Iqbal
Ahmad, Farooq Ahmad, Shah Alam, Jalaluddin, Mohd. Shabir,
Maroof Ahmad Khan, Majid Ali khan, Subhash Chandra and 0
others who were making purchases in the nearby shops came
to rescue them and accused persons firing from their country
:...
made pistols and guns went away. His younger son Favad
..... Khan (described as 01) died on the spot and injured Shahood
(described as 02) died in the hospital during treatment. Shah
E
Alam had also received fire arm injuries and he was taken to
the Medical College. The report was registered at the Police
Station Civil Lines on 16.12.2001 at 6.25 p.m. and the distance
of the police station is 1 km. from the place of occurrence. After
the registration of the report, Shri B.K. Tiwari, S.H.O. Civil Lines
-< started the investigation. He recorded the statement of scriber F
~ of the report Om Prakash Chaturvedi, informant and Iqbal
Ahmad. Thereafter, he reached at the place of occurrence and
prepared the site plan on the direction of the informant which
is Ex.Ka-21. He prepared site plan of the place where the
banner was fixed, which is Ext. Ka-22. He prepared the G
" recovery memo of the blood stained and plain earth and
prepared the recovery memo of empty cartridge 12 bore and
"'"~ one bullet. Recovery memo of half burnt banner was prepared.
The recovery memos are Ext. Ka-23, 24 and 25. He recorded
the statement of witnesses, thereafter he reached the Medical H
1336 SUPREME COURT REPORTS [2008] 17 S.C.R.

A College and instructed Sub-inspector N.L. Arya to prepare the
inquest memo of the deceased persons Favad and Shahood. \
After the preparation of inquest memos the dead bodies were
sealed and handed over to the constables for post-mortem
examination on 17.12.2001. He recorded the statements of
8 Farooq Ahmad, Jalaluddin, Shakir son of Shabbir, Majid Ali and
Iqbal Ahmad. Accused Shakir was arrested and his statement
was recorded. On 5.1.2002 statement of Shakir, Sabhasad was
recorded and on 10. 1. 2002 statement of accused Aqeel
Ahmad was recorded and they were taken on police remand
and on the pointing out of Shakir, Sabhasad a gun was
C recovered and recovery memo was prepared which is Ext. Ka-
27. On the pointing out of Aqeel Ahmad a gun was recovered
and recovery memo is Ext, Ka-28. On 25.1.2002 a D.B.B.L.
Gun No. 17524 was recovered from the shop of Choudhary
Gun House, Arms and Ammunition Dealer, Malviya Market,
D Aligarh, recovery memo is Ext. Ka-38. A written application l.
was given by the proprietor of the Gun House Surendra Singh, }
The gun was deposited by Ashiq Ali, the recovery memo is
Ext.Ka-30.
After the investigation he submitted the charge sheet
E against the accused persons. Since the accused persons
abjured guilt they were put on trial. To establish the accusations ·
prosecution examined 12 witnesses, out of whom PW-1 is the
informant and father of the deceased. PWs 2 and 3 were stated
to be eye-witn~sses. The two deceased persons are Favad
F and Shahood and as noted above are described as 01 and
02. Placing reliance on the evidence of the prosecution f
witnesses, the trial Court found the accused persons guilty. Out
of 6 accused persons, accused Shakir absconded and he had
not faced trial. The trial Court had found the evidence of eye
witnesses clear, cogent and trustworthy and recorded the
G conviction as noted above. While the accused Aqeel Ahmad
was convicted under Section 302 IPC and sentenced to death,
the other accused persons lrfan, Chaudhary Aleem, Ashiq Ali
and Shakir were convicted for offence punishable under Section
302 read with Section 149 IPC and sentenced to undergo t
H imprisonment for life. Each of the accused persons were also

.,
AQEEL AHMAD v. STATE OF U.P. 1337
[DR. ARIJIT PASAYAT, J.]

convicted under Section 148 IPC and sentenced to two years A
imprisonment. Before the High Court in the appeals and the
Reference for confirmation of sentence, the basic stand of the
I accused persons was that there was unexplained delay in
lodging the FIR. The presence of PW-1 has not been
established. There was no evidence that the special r-eport was
B
sent to the Magistrate. Since Shah Alam who was stated to be
an injured witness was not examined, the evidence of PWs 2
and 3 cannot be believed. The investigation was tainted.
Appropriate questions were not put under Section 313 of the
\ Code. There was no evidence to show that death was on
account of appellants' firing and in any event the ingredients of c
Section 302 are not made out and at the most even if the
prosecution version is accepted in its totality, the offence would
be under Section 304 Part I IPC.
The High Court did not find any substance in these pleas.
The appeals were dismissed but the death sentence was D
altered to life sentence in case of accused Aqueel Ahmad, as
noted above.
.... , 3. In support of appeals by the accused persons, learned
counsel for the appellants re-iterated the various stands taken
before the High Court. E
4. It is pointed out that there was no evidence that the
special report was sent to the concerned Magistrate with
reference to Section 157 of the Code. It is submitted that the
requirements have not been complied with. in response,
learned counsel for the informant and the State supported the F
judgment. Additionally, learned counsel for the State submitted
~ , that this was a case where death sentence as awarded by the
trial Court should have been confirmed.
5. There is no doubt that forwarding of the report is
indispensable and absolute and it has to be forwarded with G
earliest dispatch which intention is implicit with the use of the
word 'forthwith' occurring in Section 157 of the Code which
..,.. ..; means promptly and without any undue delay. The real purpose
is to avoid possibility of the improvement in the prosecution
case and introduction of distorted version by deliberations and H
,.::
1338 SUPREME COURT.REPORTS [2008] 17 S.C.R.

A consultation and to enable the Magistrate concerned to have
·a watch on the progress of the investigation. In Sunii Kumar v.
State of Raja,sthan (2005 (9) SCC 283) it was observed by
\
this Court that as a rule of universal application it cannot be laid ,,_
down that whenever there is some delay in sending the FIR to
the Magistrate, the prosecution version becomes unreliable. It
8
would depend upon the facts of each case. It was noted in the
said case that investigation was take~ up immediately and
certain steps in the investigation were taken. Therefore, the
plea that there was delayed FIR and/or that the FIR was
inexistent at the relevant point of time was turned down. In the
C instant case the High Court noted that the same was received
on 20.12.2001. The High Court observed that if there was any
lapse on the part of the investigating officer, that would not affect
the credibility of the prosecution version.
6. Another factor which was highlighted by learned counsel
D for the appellants was that the prejudice is caused because the
evidence of PWs 9 and 10 show that there were some
. deliberations and improvements made. Non examinatiol') of
Shah Alam who is supposed to be injured witness also has
relevance: It is pointed out that the medical evidence is contrary
E to the oral testimony. While the medical report shows two
wound and two ent~ies it was stated that firing took place once.
7. Interestingly, as rightly submitted by respondents that no
question was put to the relevant witnesses on this aspect.
Submissions were made regarding\nature of the wounds.
F 8. It was also stated that PW"'.1 could have used one of the
cars which he possessed and there is no reason as to why he
had taken the deceased on scooter. This has also been
explained by the prosecution witnesses. •

'
\ '
9. ~o far as applicability of Section 149 IPC is concerned,
G it is submitted that the co-accused included the driver. If they
were carrying weapons, there w~s no question of any
exhortation. It may have been done by the absconding .,
accused. It is unlikely that the driver would give orders to his
master.
H 10. In Sunil Kumar's case (supr~) i(was inter alia
AQEEL AHMAD v. STATE OF U.P. 1339
[DR. ARIJITPASAYAT, J.]

observed as follows: A
7. The pivotal question is applicability of Section 149 IPC.
Said provision has its foundation on constructive liability
which is the sine qua non for its operation. The emphasis
is on the common object and not on common intention.
Mere presence in an unlawful assembly cannot render a B
person liable unless there was a common object and he
was actuated by that common object and that object is one
of those set out in Section 141. Where common object of
~ an unlawful assembly is not proved, the accused persons
cannot be convicted with the help of Section 149. The
crucial question to determine is w.hether the assembly
c
consisted of five or more persons and whether the said
persons entertained one or more of the common objects,
as specified in Section 141. It cannot be laid down as a
general proposition of law that unless an overt act is
proved against a person, who is alleged to be a member D
of unlawful assembly, it cannot be said that he is a member
of such an assembly. The only thing required is that he
should have understood that the assembly was unlawful
and was likely to commit any of the acts which fall within
the purview of Section 141. The word 'object' means the E
purpose or design and, in order to make it 'common', it
must be shared by all. In other words, the object should be
common to the persons, who compose the assembly, that
is to say, they should all be aware of it and concur in it. A
common object may be formed by express agreement F
after mutual consultation, but that is by no means
_. i necessary. It may be formed at any stage by all or a few
members of the assembly and the other members may just
join and adopt it. Once formed, it need not continue to be
the same. It may be modified or altered or abandoned at
any stage. The expression 'in prosecution of common G
. object' as appearing in Section 149 have to be strictly
construed as equivalent to 'in order to attain the common
"'- ·* object'. It must be immediately connected with the common
object by virtue of the nature of the object. There must be
community of object and the object may exist only up to a H
1340 SUPREME COURT REPORTS [2008].17 S.C R.

A particular stage, and not thereafter. Members of an unlawful
assembly may have community of object up to certain
point beyond which they may differ in their objects and the \
knowledge. possessed by each member of what is likely
to be committed in prosecution of their common object may
vary not only according to the information at his command,
B
but also according to the extent to which he shares the
community of object. and as a consequence of this the
effect of Section 149. IPC may be different on different
members of the same assembly. ~
8. 'Common object' is different from a 'common intention'
c as it does not require a prior ~oncert and a common
meeting of minds before the attack. It is enough if each
has the same object in view and their number is five or
more and that they act as an assembly to achieve that
object. The 'common object' of an assembly is to be
D ascertained from the acts and language of the members
composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the
course of conduct adopted by the members of the
assembly. What the common object of the unlawful
E assembly is at a particular stage of the incident is
essentially a question of fact to be determined, keeping
in view the nature of the assembly, ttie arms carried by the
'
members. and the behaviour of the members at or near
the scene of the incident. It is not necessary·under law that
F in all cases of unlawful assembly, with an unlawful common
object. the same must be translated into action or be
successful. Under the Explanation to Section 141, an ,. (.

assembly which was not unlawful when it was assembled,
may subsequently become unlawful. It is not necessary that
the intention or the purpose. which is necessary to render
G an assembly an unlawful one comes into existence at the
outset. The time of forming an unlawful intent is not
material. An assembly which. at its commencement or
~ A.
even for some time thereafter. is lawful. may subsequently
become unlawful. In other words it can develop during the
H course of incident at the spot eo instante.

·-"
AQEEL AHMAD v. STATE OF U. P. 1341
[DR.-ARIJIT PASAYAT, J.]

9. Section 149, IPC consists of two parts. The first part of A
the section means that the offence to be committed in
prosecution of the common object .must be one which is
committed with a view to accomplish the common object.
In oroer that the offence may fall within the first part, the
offence must be connected immediately with the common
B
object of the unlawful assembly of which the accused was
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
~ yet fall under Section 141, if it can be held that the offence
was such as the members knew was likely to be committed
and this is what is required in the second part of the c
'
section. The purpose for which the members of the
assembly set out or desired to achieve is the object. If the
object desired by all the members is tfle same, the
knowledge that is the object which is being pursued is
shared by all the members and they are in general D
agreement as to how it is to be achieved and that is now
the common object of the assembly. An object is
. ....._ entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available and,
like intention, has generally to be gathered from the act E
which the 'person commits and the result therefrom. Though
no hard and fast rule can be laid down under the
circumstances from which the common object can be
culled out, it may reasonably be collected from the nature
of the assembly, arms it carries and behaviour at the time
of or before or after the occurrence. The word 'knew' used F
/
., in the second limb of the section implies something more
than a possibility and it cannot be made to bear the sense
of 'might have been known'. Positive knowledge is
necessary. When an offence is committed in prosecution
of the common object, it would generally be an offence , G
which the members of the unlawful assembly knew was
'
•..t likely to be committed in prosecution of the common
object. That, however, does not make the converse
proposition true; there may be cases which would come
within the second part but not within the first part. The H
1342 SUPREME COURT REPORTS [2008] 17 S.C.R.

A distinction between the two parts of Section 149 cannot
be ignored or _obliterated. In every case it would be an
issue to be determined, "Yhether the offence committed falls
witnin the first part of it was an offence such as the
members of the assembly knew to be. likely to be
committed in prosecution of the common object and falls
B
within the second part. However, there may be cases
which would be within the first part but offences committed
in prosecution of the common object would also be
generally, if not always, be within the second part, namely,
/
offences which the parties knew to be likely t6 be
c committed in the prosecution of the common object. (See
Chikkarange Gowda and others v. State of Mysore AIR
1956 SC 731).
xx xx xx
12. It has been established by the evidence of the eye
D
witnesses that all the eight accused persons were armed
with weapons, they surrounded the deceased and in fact
prevented others from going near tl}e deceased to rescue j,..

him. They had arrived together in the,same jeep and left
by the jeep after the incident. One important and relevant
E factor, which has been noticed by the trial court and the
High Co1.,1rt, is that the jeep was kept in starting position.
Significantly the defence in the cross examination brought
out the fact that the accused persons surrounded the ,
deceased and prevented those who wanted to go to
F rescue the deceased by threatening them with dire
consequences. The trial court and the High Court ·have ,,.... <
analysed the factual position in great detail and have
pointed out the aforesaid relevant factors. Therefore, there
is no infirmity in the conclusion of the courts below about
the applicability of Section 149 IPC.
G-
xx xx xx ,,.
17. Where a group of assailants who were members of
~ ..... ~
the unlawful assembly proceeds to commit the crim'e in
pursuance of the common object of that assembly, it is often
H not possible for witness_es to describe the actual part
AQEEL AHMAD v. STATE OF U.P. 1343
[DR. ARIJIT PASAYAT, J.]

played by each one of them and when several persons A
armed with weapons assault the intended victim, all of
them may not take part in the actual assault. Therefore, it
was not necessary for the prosecution to establish as to
the specific overt act was done by each accused."
11. It was pointed out by learned counsel appearing for the. B
informant and the State that there was no possibility of any false
or delayed FIR and there has been no prejudice caused. The
accused persons accepted that there was no previous enmity
\ and, therefore, the question of any fabrication does not arise.
As regards the delayed dispi;!tch of report of the Magistrate is
concerned, reference can also be made to the decision of this
c
Court in Pala Singh and Anr. v. State of Punjab (1972 (2) SCC
640). In para 8 it was observed as follows:
"8. Shri Kohli strongly criticised the fact that the occurrence
report contemplated by Section 157 CrPC was sent to the
D
Magistrate concerned very late. Indeed, this challenge, like
the argument of interpolation and belated despatch of the
~ inquest report, was developed for the purpose of showing
that the investigation was not just, fair and forthright and,
therefore, the prosecution case must be looked at with
great suspicion. This argument is also unacceptable. No E
doubt, the report reached the Magistrate at about 6 p.m.
Section 157 CrPC requires such report to be sent forthwith
by the police officer concerned to a Magistrate
empowered to take cognizance of such offence. This is
really designed to keep the Magistrate informed of the F
... ' investigation of such cognizable offence so as to be able
to control the investigation and if necessary to give
appropriate direction under Section 159. But when we find
in this case that the FIR was actually recorded without
delay and the investigation started on the basis of that FIR G
and there is no other infirmity brought to our notice, then,
however improper or objectionable the delayed receipt of
-·- '1 the report by the Magistrate concerned it cannot by itself
justify the conclusion that the investigation was tainted and
the prosecution insupportable. It is not the appellants' case
I
H
1344 SUPREME COURT REPORTS [2008] 17 S.C.R.

A -that they have been prejudiced by this delay."
12. So ,far as the purported delayed registration or
manipulation is concerned it is to be noted that investigation
commenced immediately. In State of Karnataka v. Main Patel
and Ors. (1996 (8) SCC167), it was noted as follows:
B "16. The matter can be viewed from another angle also. It
has already been found by us that the prosecution case
that the FIR was promptly lodged at or about 1.30 a.m. and
that the investigation started on the basis thereof is wholly
reliable and acceptable. Judged in the context of the above
c facts the mere delay in dispatch of the FIR - and for that
matter in receipt, thereof by the Magistrate - would not
make the prosecution case suspect for as has been
pointed out by a three-Judge Bench of this Court in Pala
Singh v. State of Punjab, the relevant provision contained
in Section 157 CrPC regarding forthwith dispatch of the
D
report (FIR) is really designed to keep the Magistrate
-informed of the investigation of a cognizable offence so
j.
as to be able to control the investigation and if necessary
to give proper direction under Section 159 CrPC and
therefore if in a given case it is found that FIR was recorded
E without delay and the investigation started on that FIR then
however improper or objectionable the delayed receipt of
the report by the Magistrate concerned, it cannot by itself
justify the conclusion that the investigation was tainted and
the prosecution unsupportable."·
F 13. In Rabindra Mahto and Anr. v. State of Jharkhand
(2006 (10)
and 20.
sec 432), the position was re-iterated in paras 19 1
-
14. PW-12.has referred to Ext. Ka-21 and Ka-22, (the site
plan) and case number i.e. crime No.570 of 2001 has been
G clearly mentioned. The correctness of Exts. Ka-21 and Ka-22 .........
has not been challenged. On 18.12.2001 the proceedings in
terms of Sections 82 and 83 of the Code were initiated and ~- --.
non-bailable warrants were issued. On 20.12.2001 on the basis
of the report attachment of the property was directed. Even if
H there has been lapse in the investigation as contended by,
AQEEL AHMAD v. STATE OF U.P. 1345
[DR. A~IJI! PASAYAT, J.]

learned counsel for the appellants that cannot affect the A
credibfnty of the witnesses. (See Ram Bali v. State of UP. 20Q4
(10) SCC 598). It was highlighted that in the panchanama
prepared under Section 174 of the Code names of accused
persons were not indicated and that adds vulnerability to the
prosecution version. This plea is clearly unsustainable. In Amar
8
Singh~. Ba/winder Singh and Ors. (2003 (2) sec 518), it was
observ~d as follows: ' ·
' "12. The High Court has also held that the detaps
about the occurrence were not mentioned in the inquest
report which showed that the investigating officer was not C
sure of the facts when the inquest report was prepared and
this feature of the case carr;ed weight in favour of ttile
accused. We are unable to accept this reasoning of the
High Court. The provision for holding of an inquest and
preparing an inquest report is contained in Section 174
CrPC. The heading of the section is "Police to enquire D
and report on suicide etc." Sub-section (1) of this section
provides that when the officer in charge of a police station
or some other police officer specially empowered by the
State Government in that behalf receives information that
a person has committed suicide, or has been killed by E
another or by an animal or by machinery or by an accident,
or has died under circumstances raising a reasonable
suspicion that some other person has committed an
offence, he shall immediately give information to the
nearest Executive Magistrate and shall proceed to the F
place where the body of such deceased person is, arjld
there, in the presence of two or more respectab'le
inhabitants of the neighbourhood, shall make an
investigation, and draw up a ·report of the apparent cause
of death describing such wounds, fractures, bruises, a111d
other marks of injury as may be found on the body and G
stating in what manner, or by what weapon or instrument
(if any), such marks appear to have been inflicted. The
requirement of the section is that the police officer shall
record the apparent cause of death describing the wounds
as may be found on the body and also the weapon or H
1346 SUPREME COURT REPORTS [2008] 17 S.C.R.

A instrument by which they appear to have been inflicted and
this has to be done in the presence of two or more
\
respectable inhabitants of the neighbourhood. The section
does not contemplate that the manner in which the incident
took place or the names of the accused should be
mentioned in the inquest report. The basic purpose of
B
holding an inquest is to ~eport regarding the apparent
cause of death, namely, wJ;lether it is suicidal, homicidal,
accidental or by some machinery etc. The scope and
purpose of Section 174 CrPC was explained by this Court
in fedda Narayana v. State of A.P. (1975 (4) SCC 153)
c and it will be useful to reproduce the same: (SCC pp. 157-
58, para 11):
'The proceedings under Section 174 have a very
limited scope. The object of the proceedings is
merely to ascertain whether a person has died
D under suspicious circumstances or an unnatural
death and if so what. is the apparent cause of the
death. The question regarding the details as to how
the deceased was assaulted or who assaulted him
or under what circumstances he was assaulted is
E foreign to the ambit and scope of the proceedings
under Section 174. Neither in practice nor in law
was it necessary for the police to mention those
details i.n the inquest report.
It is therefore not necessary to enter all the details
F of the overt acts in the inquest report. Their
omission i~ not sufficient to put the prosecution out
of court.'
13. In Khujji v. State of M.P. (1991 (3) SCC 627) this Court,
after placing reliance upon the abovequoted decision,
G rejected the contention raised on behalf of the accused that
the evidence of eyewitnesses could not be relied upon as
their names did not figure in the inquest report prepared
at the earliest point of time. In Shakita Khader v. Nausheer
Gama (1975 (4) SCC 122) it was held that an inquest
. H under Section 174 CrPC is concerned with est~blishing
AQEEL AHMAD v. STATE OF U.P. 1347
[DR. ARIJIT PASAYAT, J.]

the cause of the death only. The High Court was, therefore, A
clearly in error in holding that as the facts about the,
occurrence were not mentioned in the inquest report, it
would show that at least by the time the report was,
prepared the investigating officer was not sure of the facts
of the case." B
15. Therefore, the appeals filed by the accused persons
are without merit, deserve dismissal which we direct.
•• 16. So far State's appeal as regards sentence is
concerned, it is to be noted that number of deaths in a case
c
.
would not be the determinative factor for awarding the death'
'
sentence. Even .in the case of single victim death sentence can
be awarded taking into consideration the circumstances of the ,
case. In the instant case looking to the background facts it
cannot be said that the High Court by altering the sentem;:e from •
death to life has acted inappropriately. We, therefore, dismiss
0
the State's appeal also. All the appeals are dismissed.
N.J. Appeals dismissed.

-
'