Holding

A member of an unlawful assembly is constructively liable under Section 149 IPC if a common object can be inferred from the facts, and delay in filing or forwarding the FIR does not, by itself, defeat the prosecution when reliable evidence exists.

Summary

The appellants, members of a Mahto clan, attacked two men who were ploughing a field they claimed as their own, using swords, knives and lathis, resulting in the deaths of Sohrai Puran and Ram Mohan Puran and injuries to others. An FIR was lodged the next day and sent to the magistrate a day later; the defence argued that this delay proved the case was fabricated and that the prosecution had not shown a common object to murder, so Section 149 IPC could not apply. The trial court and the High Court convicted the accused under Section 302 read with Section 149 IPC (and Section 323 IPC for some) based on eye‑witness testimony and medical evidence. The Supreme Court held that membership in an unlawful assembly suffices for constructive liability under Section 149 if a common object can be inferred from the facts, and that a delay in filing or forwarding the FIR does not, by itself, invalidate the prosecution when reliable evidence is present. Consequently, the Court dismissed the appeals, upholding the convictions.

Issues considered

Whether the delay in lodging the FIR and forwarding it to the magistrate warrants dismissal of the prosecution case.
Whether mere membership in an unlawful assembly, without explicit proof of a common object to murder, is sufficient for conviction under Section 149 IPC.
How to distinguish between ‘common object’ and ‘common intention’ under Section 149 IPC.
Whether the evidence on record establishes a common object to commit murder.

Legislation cited

Code of Criminal Procedure, 1973s. 157
Indian Penal Code, 1860s. 149, s. 302, s. 323

Subjects

Section 149 IPCunlawful assemblycommon objectFIR delaymurderconstructive liabilityland disputecriminal procedure

Judgment

A RABINDRA MAHTO AND ANR.
v.
ST ATE OF JHARKHAND

JANUARY 6, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860; Section 302 r/w Section 149 and Section 323:

Assault and murder-Accused attacked on members ofprosecution party
C causing death of two persons and injuring others-Trial Court found jive
accused persons guilty of committing offence under Section 302 rlw Section
149 and two accused persons under Section 323 /PC and sentenced them
accordingly-Affirmed by High Court-On appeal, held: Mere membership of

D
an unlawful assembly could be the basis offastening constructive guilt on the
members under Section 149 IPC provided common object of unlawful assembly
' .
shared by the members-Nature of injuries found on the deceased clearly
establishes that the common object of the unlawful assembly was to do away
with the deceased-Also corroborated by the evidence of eye witnesses--
There exists no reason to disbelieve the version of the witnesses-Prosecution
led reliable evidence veracity of which could not be dislodged on the basis of
E delay in lodging FIR and forwarding information to the Magistrate.

'Common object' and 'Common intention '-Distinction between--
Discussed.

Code of Criminal Procedure, 1973; Section 157: Delay in filing FIR--
F Effect of-Discussed.

According to the prosecution, on the fateful day when the deceased
and others were taking rest in a field, accused persons armed with deadly
weapons attacked them. Consequently, they were injured and two of them
G succumbed to the injuries inflicted by the accused persons. An FIR was
lodged on the next day and forwarded to the Magistrate a day after. Trial
Court found five accused persons guilty of committing crime under Section "
30l r/w Section 149 and two accused persons for committing offence
punishable under Section 323 IPC and convicted and sentenced them
accordingly. The order was affirmed by the High Court. Hence the present
H ~8
RABlNDRA MAHTO v. STATE OF JHARKHAND 249
' > appeals. A
It was contended by the accused-appellant that that the delay in
lodging of the FIR and thereafter further delay in sending the same to
the concerned Magistrate, clearly indicates that the accused persons have
been falsely implicated and on this count alone the prosecution case fails,
and that the accused persons could not have been convicted for the offence B
under Section 302 IPC with the aid of Section 149 of the Indian Penal Code
.-, when there is no evidence of a common object of the assembly to commit
murder of the deceased persons.

Respondent submitted that the common object of the assembly has
to be gathered from the facts and circumstances of the case and that there C
is enough evidence on record to indicate that all the accused persons had
formed unlawful assembly to commit an offence of murder of the deceased
persons; and that the prosecution case cannot be discarded only on the
ground of delay in lodging the FIR or delay'in sending the information to
;.. y
the Magistrate. D
Dismissing the appeals, the Court

HELD: 1.1. The basis of constructive guilt under Section 149JPC is
mere membership of an unlawful assembly. If the accused is a member of
an unlawful assembly, the common object of which is to commit a certain E
crime, and such a crime is committed by one or more of the members of
that assembly, every person who happens to be a member of that assembly
would be liable for the commission of the crime being a member of it
irrespective of the fact whether he has actually committed the criminal
act or not. (256-F-G I
F
1.2. There is a distinction between the common object and common
intention. The common object need not require prior concert and a
common meeting of minds before the attack, and an unlawful object can
develop after the assembly gathered before the commission of the crime
at the spot itself. There need not be prior meeting of the mind. It would G
be enough that the members of the assembly which constitutes five or more
persons, have common object and that they acted as an assembly to achieve
that object. In substance, Section 149 IPC makes every member of the
common unlawful assembly responsible as a member for the act of each
and all merely because he is a member of the unlawful assembly with
common object to be achieved by such an unlawful assembly. At the same H
250 SUPREME COURT REPORTS [2006] I S.C.R.

A time, one has to keep in mind that mere presence in the unlawful assembly
cannot render a person liable unless there was a common object and that
is shared by that person. The common object has to be found and can be
gathered from the facts and circumstances of each case.
(256-G-H; 257-A-B(

B 2.1. In the instant case, the appellants claimed ownership of certain
land when the deceased and their men plowed the land, they armed with
weapons came to the place of incident to vindicate their right to the land >
by show of force or use of force. The intention to assert the right by force
is apparent from the fact that the appellants were armed with deadly
C weapons and some of them were carrying lathis. All the persons came
together at the spot, armed with weapons and immediately after reaching
the spot, after short exchange of words, they started assault and caused
grievous injuries to two persons who died on the spot and also assaulted
two eye witnesses namely PW-5 and PW-9. The nature of the injuries found
on the deceased gives clear indication of :i common intent of the assembly
D to go to the extent of causing death of the persons who have plowed their
land. All the members reaching to the spot together armed with weapons
and immediate attack on the persons present there, clearly exhibits the
intention of the unlawful assembly. In the facts and circumstances of the
case, the common object of the unlawful assembly to do away with the
E deceased persons could safely be inferred, and also there exists no reason
to disbelieve the version of these witnesses which found approval of two
courts. (257-C-D-E-F(

3. There cannot be any manner of doubt that Section 157 of Criminal
Procedure Code requires sending of an FIR to the Magistrate forthwith
F which reaches promptly and without undue delay. The reason is obvious
to avoid any possibility of improvement in the prosecution story and also
to enable the Magistrate to have a watch on the progress of the
investigation. At the same time, this lacuna on the part of the prosecution
would not be the sole basis for throwing out the entire prosecution case
being fabricated if the prosecution had produced the reliable evidence to
G prove the guilt of the accused persons. The provisions of Section 157, Cr.
P.C. are for the purpose of having a fair trial without there being any
chance of fabrication or introduction of the fact at subsequent stage of
investigation. The prosecution has led reliable evidence the veracity of
which is not dislodged by delay in recording of the FIR and delay in
H sending the same to the Magistrate in the facts and circumstances of this
RABn:mRA MAHTO v. STATE OF JHARKHAND [NAOLEKAR, J .] 251

case. (259-H; 260-A-B-C-DI A
Meharaj Singh v. State of U.P., (199415 SCC 188; Arjun Marik and
Ors. v. State of Bihar, 119941 Supp. 2 SCC 372 and Suresh Chaudhary v.
State of Bihar, (2003( 4 S.C.C. 128, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 588 B
of 2005 .

.I... From the Judgment and Order dated 11/12/2003 of the High Court of
Jharkhand in Crl. Appeal No. 17 of 1997 (R).

WITH
c
Crl. Appeal Nos. 589/2005 and 3112006.

D.N. Goburdhan, Ms. C.K. Sucharita, A.C., Manish Mohan, B.M. Prasad,
Ms. Arnita Mohan, U. Shanker and Ugra Shankar Prasad for the Appellants.
/.. ., Anil Kumar Jha for Respondent.
D
S.B. Upadhyay (NP) for informant.

The Judgment of the Court was delivered by

P.P. NAOLEKAR, J. Leave granted in S.L.P. (Crl.) No. 2218 of2005
E
The accused appellants were convicted and sentenced by the Additional
Judicial Commissioner. The appellants Rabindra Mahto, Bairam Mahto and
Lemboo Mahto were found guilty under Section 302 IPC and were sentenced
to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000 and
in default to further undergo rigorous imprisonment for two years. The
appellants Jag Mohan Mahto, Fagu Mahto, Dhananjay Mahto, Huna Mahto F
and Girish Mahto were found guilty under Section 302 read with Section 149
I.P.C. and were accordingly convicted and sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs.500 and in default to further
undergo rigorous imprisonment for one month. Further appellants Jag Mohan
Mahto and Lemboo were found guilty under Section 323 IPC and were
convicted and sentenced to undergo rigorous imprisonment for five months.
G
~
All the sentences were directed to run concurrently. The appeal preferred by
the accused-appellants was dismissed by the High Court, aggrieved by the
same, the present proceedings were taken up by the appellants.

The prosecution case, as narrated by the eye witness Gopal Puran, PW- H
252 SUPREME COURT REPORTS [2006] I S.C.R.

A 5 infardbeyan on 11.7.1989 at 8.30 P.M. before Sub-Inspector N.P. Singh
of P.S. Jopno Puti Tola, is that at about 9.00 A.M. he had gone to his field
lying in Jopno Puti Tola Kend Tand with Sohrai Puran, Ram Mohan Puran,
Cheta Puran, and others. They sowed Gunja in the field and thereafter they
were taking rest under the Kend Tree. They saw that from the side of Jopno
B Village Bairam Mahto, Rabindra Nath Mahto, Girish Mahto, Fagu Mahto,
Huna Mahto, Dhananjay Mahto, Lemboo Mahto, Laloo Mahto, Jagmohan
Mahto along with five-six other persons, armed with tangi, lathi, farsa and
sword came to the spot and enquired from them as to why they plowed the ,
field, whereupon there was an exchange of hot words. All of a sudden Huna
Mahto pelted stone on Sohrai Puran, the deceased, as a result of which Sohrai
C Puran fell down. Bairam and Rabindra assaulted Sohrai Puran and also
assaulted Ram Mohan Puran. Thereafter Jagmohan, Laloo, Lcmboo, Fagu
and others attacked Ram Mohan and Sohrai Puran with lathi, farsa and sword
as a result of which Sohrai Puran and Ram Mohan Puran died. Gopal Puran,
PW-5 and Cheta Puran, PW-9 were also assaulted by lathi. Thereafter they
ran towards Village Puti Tola and raised alarm whereupon villagers came to
D the spot but before they could arrive, the accused fled away from the scene
of occurrence. As mentioned above thisfardbeyan was recorded on 11.7.1989
' .
at 2030 Hrs. i.e. 8.30 P.M. and the FIR was registered at I0.00 A.M. on
12.7.1989. The copy of the FIR was sent to the concerned Magistrate on
13.7.1989.
E The Additional Judicial Commissioner and the High Court, on the basis
of the evidence placed on record by the prosecution, found that the prosecution
proved beyond reasonable doubt that the accused Rabindra, Lemboo and
Bairam committed the offence of murder of Sohrai Puran and Ram Mohan
Puran and other appellants committed crime in furtherance of their common
F object forming unlawful assembly, which was formed to commit murder of
the deceased persons and attack on the members present with them. On the
basis of evidence of eye-witness, as there was specific evidence of assault by
accused Rabindra Mahto, Bairam Mahto and Lemboo Mahto on the deceased
with tangi, sword and farsa, which was corroborated by the medical evidence,
G they were found guilty of the offence under Section 302 IPC and other
accused persons who assaulted the deceased with Lathi were held guilty of
an offence under Section 302 read with Section 149 of Indian Penal Code.

The post mortem report prepared by PW-7, Dr. Niranjan Minz found
the following injuries on deceased Sohrai Puran:
H
RABINDRA MAHTO v. STATE OF JHARKHAND [NAOLEKAR. J.] 253
. >-· I
I. Incised wounds:- A
(a) 8.3 cm x bone deep on the front part of the left side of the chest
and adjoining left shoulder cutting the soft tissues, under bones partially
and the first and the second ribs left side completely;

(b) l lx3 cm x cavity deep on the left tempro parietal region of the B
head cutting the left external on the head cutting the left external ear
partially and cutting the left tempro parietal bone completely and the
underlying brain partially;

(c) 4x I Yi cm x soft tissue on the right arm medial side;

(d) 8x4 cm x soft tissue on right chest lateral side situated 3 cm
c
below the right axilla;

(e) 6x2 cm x bone deep on the left bottom upper part cutting the soft
'' y tissues and the underlying bone partially.

2. Lacerated wounds: D
2x I cm x soft tissues on left leg front middle.

3. Internal:

There was presence of blood and blood clots in the chest and cranial E
cavity.

1 According to the doctor the incised wounds were caused by heavy
sharp cutting weapons such as farsa, tangi and sword and lacerated wounds
were caused by hard and blunt substance, may be by lathi.
F
On the same day at about 1330 Hrs. said doctor conducted postmortem
examination on the dead body of Ram Mohan and found the following ante
mortem injuries:

I. Abrasion:
G
(i) 2 x 2 cm on right leg front upper part

2. Bruise:

24 x 2 cm, and 16.2 cm on the back of the chest left side lateral part

3. Incised wounds: · H
254 SUPREME COURT REPORTS [2006) I S.C.R.

A I. 11 x l /4 cm x soft tissues on the right scapular region.

2. 8 x 2 cm x cavity deep on the left occipital parietal region of the
head cutting the underlying bone and the brain matter.

3. 5 x 2 cm 3 1/2 cm on the left and lateral side of neck upper part
B cutting the soft tissue and the bone vessels.

4. 4 x l /4 cm x soft tissues on left elbow lateral side.

4 Internal:-

There was contusion of soft tissues of the chest wall left side. There
C was fracture of third to I 0 ribs with laceration of the left lung. There
was presence of blood and blood clots in the chest and cranial cavity.

According to the doctor, the injuries were caused by hard and blunt
substance, may be by lathi and stone and incised wounds were caused by
heavy sharp cutting weapons such as farsa, tangi or sword.
D
It is urged by Shri D.N. Goburdhan, learned counsel for the appellants
that the delay in lodging of the FIR and thereafter further delay in sending
the same to the concerned Magistrate, clearly indicates that the accused-
appellants have been falsely implicated and on this count alone the prosecution
E case fails and is required to be discarded. It is further urged by Shri Goburdhan
that the accused-appellants cou Id not have been convicted for the offence
under Section 302 IPC with the aid of Section 149 of the Indian Penal Code
when there is no evidence of a common object of the assembly to commit
murder of Sohrai Puran and Ram Mohan Puran.

F Shri Anil Kumar Jha, learned counsel appearing on behalf of the State,
on the other hand, in/er alia submitted that the common object of the assembly
has to be gathered from the facts and circumstances of the case and that in
this case there is enough evidence on record to indicate that all the accused-
appellants have formed unlawful assembly to commit an offence of murder
of two deceased persons, namely, Sohrai Puran and Ram Mohan Puran. On
G the face of the substantive evidence led by the prosecution to prove the guilt
of the appellants, the prosecution case cannot be discarded only on the ground
of delay in lodging the FIR or delay in sending the information to the
Magistrate.

H The prosecution has examined four eye witnesses, namely, Sadho Munda,
PW-2. Kunfal Munda, PW-3, Gopal Puran. PW-5 and Chaita Puran. PW-9.
RABINDRA MAHTO v. STATE OF JHARKHAND [NAOLEKAR. J.] 255

PW-2 Sadho Munda in his evidence stated that he was grazing his cattle in A
the morning when he saw Sohrai Puran, Ram Mohan Puran (both deceased},
Gopal Puran, PW-5, and Chaitan Puran, PW-9 were sowing Gujna in the
field. He further stated that he saw the accused persons along with some
unknown persons who came towards the field from the side of Jopno Village.
Bairam was carrying tangi, Lemboo was armed with farsa and Rabindra was B
armed with sword and rest of them were armed with lathis. They came and
assaulted Sohrai Puran and Ram Mohan Puran and also assaulted Gopal and
Chaita. Gopal and Chaita fled away from the field. After the accused ran
away from the scene of incident, he came near the injured persons who were
then breathing and they were taken to their houses but they died on the way.
To the same effect is the statement of PW-3 Kunjal Munda, who was also C
grazing his cattle in the nearby field and saw the complaining party plowing
the field for sowing Surguja. He stated that after sowing they were taking rest
under the tree when he saw from the eastern side of the village Jopno, the
accused party proceeding towards the place of incident. He saw Balo (Bairam)
r· armed with tangi,' Lem boo, armed with farsa and Gopal, armed with sword
and others armed with lathis. He saw the accused party assaulting Sorhai D
Pura~ and Ram Mohan Puran. He also saw Gopal and Chaita were inflicted
injuries. PW-5, Gopal Puran's evidence was to the effect that he went to the
field for plowing it and for sowing Sarguja and when they were taking rest
under the tree, he saw all the accused persons approaching them from the
·village Jopno, armed with sword, tangi and farsa. Ori reaching the spot, E
accused Huna Mahato threw stone at Sorhai Puran as a result of which he fell
down. Thereafter, Dhananjay Mahato assaulted Sohrai Purari v·ith lathi and
Rabindra Mahato assaulted with sword causing injuries to him. Lemboo also
assaulted Sorhai Puran with farsa. He further said that Rabindra caused injuries
with sword, Bairam with thenga, Lemboo with farsa and other accused persons
assaulted Ram Mohan with thenga, as the result of injuries both the deceased F
fell down and died. He further deposed that Girish Mahato assaulted him
with thenga on head and Fagu Mahato hit him on the right arm with lathi.
Jag Mohan hit Chaita ·with Thenga. Thereafter, he along with Chaita fled
away to Puti Tola. He further stated that the land where the crops were being
sowed belonged to them, in the cross-examination of this witness, questions G
~
were put regarding ownership of the land where the crops were sowed. He
·-"'
was asked whether there was any case in respect of the land between the
parties. From this line of cross-examination, it is apparent that the defence is
claiming ownership over the land.

Another eye witness examined by the prosecution is Chaita Puran. PW- H
256 Sl'PREME cot·RT REPORTS (20061 I S.C.R.

A 9. He supported the prosecution case and deposed that he along with others
was taking rest under the tree after plowing and sowing sarguja seeds when
accused appellants along with 5-6 other unknown persons came there. He
described that Rabindra was armed with sword, Bairam was armed with tangi
and Lem boo was armed with farsa and rest of them were armed with lathis.
He further deposed that he and other stood up and saw Huna pelting stone
B at Sohrai Pu ran as a result of which he fell down and thereafter Lem boo, who
was armed with farsa and Bairam, armed with tangi, both assaulted Sohrai as
a result of which he died. Thereafter, Rabindra with sword, Bairam with tangi
and Lemboo with farsa, assaulted Ram Mohan Puran, and others assaulted
Ram Mohan Puran with lathis. He was also assaulted by Jag Mohan and
C Laloo with lathi. Thereafter, they fled from the spot. This witness stated that
the occurrence took place due to the land in Kend Tad. He further deposed
that it was not correct that the accused persons had at all told that they had
purchased the Kenda Tad land in auction. For the first time the accused
persons told on the day of occurrence that it was their land.

D The main thrust of the argument of the learned counsel for the appellants
is that evidence on record shows that only three accused-appellants, namely,
Rabindra Mahato, Lemboo and Bairam Mahato have assaulted the deceased
persons with sharp edged weapons and in the absence of proof of common
object of the assembly to cause death of two deceased persons the other
E accused persons could not have been convicted by taking aid of Section 149
of the Indian Penal Code. Section 149 of the Indian Penal Code postulates an
assembly of 5 or more persons having a common object i.e. one of those
named in Section 141 of Indian Penal Code and then doing of the act as by t

the members of it in prosecution of that object. The basis of constructive
guilt under Section 149 is mere membership of an unlawful assembly. Under
F Section 149, ifthe accused is a member of an unlawful assembly, the common
object of which is to commit a certain crime, and such a crime is committed
by one or more of the members of that assembly, every person who happens
to be a member of that assembly would be liable for the commission of the
crime being a member of it irrespective of the fact whether he has actually
G committed the criminal act or not. There is a distinction between the common
object and common intention. The common object need not require prior
concert and a common meeting of minds before the attack, and an unlawful •
object can develop after the assembly gathered before the commission of the
crime at the spot itself. There need not be prior meeting of the mind. It would
be enough that the members of the assembly which constitutes five or more
H persons. have common object and that they acted as an assembly to achieve
. ;- I RABINDRA MA.HTO v. STA TE OF JHARKHAND (NAOLEKAR. J.) 257

that object. In substance, Section 149 makes every member of the common A
unlawful assembly resp.onsible as a member for the act of each and all merely
bt<cause he is a member of the unlawful assembly with common object to be
achieved by such an unlawful assembly. At the same time, one has to keep
in mind that mere presence in the unlawful assembly cannot render a person
liable unless there was a common object and that is shared by that person.
The common object has to be found and can be gathered from the facts and B
,t circumstances of each case.
''
From the facts found in the present case it appears that the appellants
claimed ownership of the land in question, when they came to know that the
deceased and their men plowed the land which they claimed to be their, they
armed with weapons came to the place of incident to vindicate their right to
c
the land by show of force or use of force. The intention to assert the right
by force is apparent from the fact that the appellants were armed with deadly
weapo~s such as sword, tangi and farsa and some of them were carrying
f
lathis. All the persons came together at the spot armed with weapons and
immediately after reaching the spot, after short exchange of words, they D
started assault and caused grievous injuries to two persons who died on the
spot. It is alleged, that the two eye witnesses namely PW-5 and PW-9 have
also been assaulted. The nature of the injuries found on the deceased gives
clear indication of a common intent of the assembly to go to the extent of
causing death of the persons who have plowed their land. A II the members
E
reaching to the spot together armed with weapons and immediate attack on
the persons present there ,clearly exhibits the intention of the unlawful
assembly. In the facts and circumstances of the case we can safely infer the
common object of the unlawful assembly to do away with the deceased
persons. We have been taken through the evidence and cross-examination of
the witnesses by learned counsel for the appellants. We do not find any F
reason to disbelieve the version of these witnesses which found approval of
two courts.

Learned counsel for the appellants has then urged that the delay in
lodging the FIR and thereafter further delay in forwarding the same to the
Magistrate concerned would lead to the conclusion that FIR had been recorded G
~ much later than one as shown in the document and as such the very genesis
of the prosecution case belies and cannot be relied upon to convict the accused
appellants. Learned counsel relied upon the decisions of this Court in the
matters of Meharaj Singh v. State of UP. [ 1994] 5 S.C.C. 188, A1jun Marik
and Ors v. State of Bihar, (1994] Supp. 2 S.C.C. 372 and Suresh Chaudhary H
258 SUPREME COURT REPORTS [20061 I S.C.R.
' ....
A v. State of Bihar (2003] 4 S.C.C. 128.
In the matter of Meharaj Singh (supra), this Court in Para 12 has stated
as under:

"FIR in a criminal case and particularly in a murder case is a vital
B and valuable piece of evidence for the purpose of appreciating the
evidence led at the trial. The object of insisting upon prompt lodging
> 1.
of the FIR is to obtain the earliest information regarding the
circumstance in which the crime was committed, including the names
of the actual culprits and the parts played by them, the weapons, if
any, used, as also the names of the eyewitnesses , if any. Delay in
c lodging the FIR often results in embellishment, which is a creature of
an afterthought. On account of delay, the FIR not only gets bereft of
the advantage of spontaneity, danger also creeps in of the introduction
of a coloured version or exaggerated story. With a view to determine
whether the FIR was lodged at the time it is alleged to have been
D recorded, the courts generally look for certain external checks. One
of the checks is the receipt of the copy of the FIR, called a special
report in a murder case, by the local Magistrate. If this report is
received by the Magistrate late, it can give rise to an inference that
the FIR was not lodged at the time it is alleged to have been recorded,
unless, of course the prosecution can offer a satisfactory explanation
E for the delay in dispatching or receipt of the copy of the FIR by the
local Magistrate . Prosecution has led no evidence at all in this behalf.
The second external check equally important is the sending of the
copy of the FIR along with the dead body and its reference in the
inquest report. Even though the inquest report, prepared under Section
F I 74 Cr.P .C., is aimed at serving a statutory function, to lend credence
to the prosecution case, the proceedings get reflected in the report.
The absence of those details is indicative of the fact that the prosecution
story was still in an embryo state and had not been given any shape
and that the FIR came to be recorded later on after due deliberations
and consultations and was then ante-timed to give it the colour of a
G promptly lodged FIR. In our opinion, on account of the infirmities as
noticed above, the Fl R has lost its valu and authenticity and it appears ;>.

to us that the same has been ante-timed and had not been recorded
till the inquest proceedings were over at the spot by PW-8.

In the matter of Arjun Marik (supra), this Court in Para 24 has stated
H as follows:
RABINDRA MAHTO v: STATE OF JHARKHAND [NAQLEKAR, J.) 259

"The matter does not stop here. There is yet another serious infirmity A
which further deepens the suspicion and ca~ts cloud on the credibility
of the entire prosecution story and which has also been lost sight of
by the trial court a!> well as the High Court and it is with regard to
the sending of occurrence report (FIR) TO THE magistrate concerned
on 22-7-1985 i.e. ori the 3rd day of the occurrence. Section 157 of
the Code of Criminal Procedure mandates that if, from information B
...'
~ received or otherwise, an officer in charge of police station has reason
to suspect the commission of an offence which he is empowered
under Secti0n 156 to investigate, he shall forthwith send a report of
the same to the Magistrate em powered to take cognizance of such
offence upon a police report. Section ! 57 Cr.PC. thus in other words c
directs the sending of the report forthwith i.e. without any delay and
immediately. Further, Section 159 Cr. P.C. envisages that on receiving
such report, the Magistrate may direct an investigation or, if he thinks
f fit, to proceed at once or depute any other Magistrate subordinate to·
r
him to proceed to hold a preliminary inquiry into the case in the
· manner provided in the Code of Criminal Procedure. The forwarding D
of the occurrence report 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, which means
promptly and without any undue delay. The purpose and object is so.
obvious which is spelt out from the combined reading of Sections E
157 and 159 Cr. P.C. It has the dual purpose, firstly to avoid the
possibility of improvement in the prosecution story and introduction
of any distorted version by deliberations and consultation and secondly
to enable the Magistrate concerned to have a watch on the progress
of the investigation"
F
In the matter of Suresh Chaudhary, (supra) this Court in Para 9 (bottom)
has held that:

" ...... That apart, the express message which PW-13 sent to the
Jurisdictional IV!agistrate 'reached the said Magistrate at his place only
on 1012.1092 nearly I Yi days after the said complaint was registered G
)< and we find no explanation from PW-13 as to this inordinate delay
which only adds to the doubtful circuri1stances surrounding the
prosecution case".

There cannot be any manner of doubt that Sectioq 157 of Criminal
H
t-

260 SUPREME COURT REPORTS (2006] I S.C.R.

A Procedure Code requires sending of an FIR to the Magistrate forthwith which
reaches promptly and without undue delay. The reason is obvious to avoid
any possibility of improvement in the prosecution story and also to enable
the Magistrate to have a watch on the progress of the investigation. At the
same time, this lacuna on the part of the prosecution would not be the sole
B basis for throwing out the entire prosecution case being fabricated if the
prosecution had produced the reliable evidence to prove the guilt of the
accused persons. The provisions of Section 157, Cr. P.C. are for the purpose ,
of having a fair trial without there being any chance of fabrication or
introduction of the fact at subsequent stage of investigation. The cases cited
by the learned counsel for the appellants do not lay down any law that simply
C because there is a delay in lodging the FIR or sending it to the Magistrate
forthwith, the entire case of the prosecution has to be discarded. The decisions
rendered by this Court and relied upon by the learned counsel for the appellant
would only show that this will be a material circumstance which will be
taken into consideration while appreciating the evidence on record.

D .After going through the material on record, we are of the view that the
prosecution has led reliable evidence the veracity of which is not dislodged
by delay in recording of the FIR and delay in sending the same to the
Magistrate in the facts and circumstances of this case. At best it can be taken
to be an infirmity in investigation.

E For the aforesaid reasons, the appeals are dismissed.

S.K.S. Appeals dismissed.

..