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PETITIONER:

HEM RAJ

Vs.

RESPONDENT:

THE STATE OF AJMER(And Connected Appeal)

DATE OF JUDGMENT:

17/03/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BOSE, VIVIAN

HASAN, GHULAM

CITATION:

1954 AIR 462 1954 SCR 380

CITATOR INFO :

R 1957 SC 216 (18)

R 1959 SC 633 (5)

F 1961 SC 100 (2)

F 1971 SC1405 (5)

RF 1976 SC 758 (8)

F 1977 SC 472 (5)

R 1988 SC 696 (8)

R 1988 SC1883 (246)

R 1989 SC1890 (24)

ACT:

Constitution of India, art. 136 (1)-Principles governing

the exercise of powers by the Supreme Court under art.

136(1)-Confession-whether can be corroborated by evidence

already in possession of Police.

HEADNOTE:

Unless it is shown that execeptional and special

circumstances exist that substantial and grave injustice has

been done and the case in question presents features of

sufficient gravity to warrant a review of the decision

appealed against, the Supreme Court does not exercise its

overriding powers under art. 136(1) of the Constitution and

the circumstance that the appeal has been admitted by

special leave does not entitle the appellant to open out the

whole case and contest all the findings of fact and raise

every point which could be raised in the High Court. Even

at the final hearing only those points can be urged which

are fit to be urged at the preliminary stage when the leave

to. appeal is asked for.

The contention that confession cannot be corroborated by

the use of materials already in the possession of the police

is devoid of force. A confession made and recorded even

during a trial can be corroborated by the evidence already

recorded. It may be made and recorded in the court of

committing magistrate,and material already in the possession

of the police may be used for purpose of corroboration.

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Queen v. Thompson ([18931 2 Q.B. 12) and Mata Din v. The

Emperor (A.I.R. 1931 Oudh 166) referred to.

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JUDGMENT:

CRIMINAL APPFLLATE JURISDICTION : Criminal Appeals Nos. 58

and 87 of 1953.

Appeal by Special Leave granted by- the Supreme Court on

the 30th June, 1953, from the Judgment and Order dated the

25th April, 1953, of the Court of the Judicial Commissioner

at Ajmer in Criminal Appeal No. 13 of 1953 and Criminal

Reference No. 19 of 1953 arising out of the Judgment and

Order dated the 18th March, 1953, of the Court of the

Sessions Judge at Ajmer in Sessions Trial No. 1 of 1953.

Appeal by Special Leave granted by the Supreme Court on the

27th October, 1953, from the Judgment and Order dated the

25th April, 1953, of the Court of the Judicial Commissioner

at Ajmer in Criminal Appeals Nos. 14 and 15 of 1953 and

Criminal Reference No. 15 of 1953 arising out of the

Judgment and Order dated the 18th March, 1953, of the Court

of the Sessions Judge at Ajmer in Sessions Trial No. 1 of

1953.

Bakhshi Tek Chand (Bhagwan Singh and Rajinder Narain, with

him) for appellant in Criminal Appeal No. 58 of 1953.

B.D. Sharma for respondent in Criminal Appeal No. 58 and

appellant in Criminal Appeal No. 87 of 1953.

K.N. Agarwala for respondent in Criminal Appeal No. 87 of

1953.

1954. March 17. The Judgment of the Court was delivered

by

MAHAJAN C.J.-Criminal Appeals Nos. 58 and 87 of 1953

relate to the same occurrence, and arise out of a common

judgment delivered by the Judicial Commissioner of Ajmer.

Both of them are before us by special leave granted by this

court on different occasions.

Unless it is shown that exceptional- and special

circumstances exist that substantial and grave injustice has

been done and the case in question presents features of

sufficient gravity to warrant a review of

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the decision appealed against, this court does not exercise

its overriding powers under article 136(1) of the

Constitution and the circumstance that because the appeal

has been admitted by special leave does not entitle the

appellant to open out the whole case and contest all the

findings of fact and raise every point which could be

raised in the High Court. Even at the final hearing only

those points can be urged which are fit to be urged at the

preliminary stage when the leave to appeal is asked for.

The question for consideration is whether this test is

satisfied in either of these two appeals. After hearing the

learned counsel. .in both the appeals we are satisfied that

none of them raise any questions which fall within the rule

enunciated above.

On the 16th of July, 1952, Mangilal deceased, partner of

firm Rambhajan Mangilal of Bijainagar, received by express

delivery post a letter Exhibit P-5 in a closed cover Exhibit

P-6. This letter was actually delivered to, Mangilal's son

Laduram who, on reading it, found that it purported to have

been sent by " Bhayankar Daku Dal " demanding payment of Rs.

5,000 at 6-30 p.m. on the 17th of July at the -crossing near

the 27th milestone on the Ajmer-Bijainagar road and -saying

that " if you cheat or do 420 or in case you inform the

police, no other punishment except that of death will be

meted out to you and you will be shot dead and made to lie

on the ground." Laduram took the .original letter with the

envelope to his uncle Ramjas at Ajmer and both of them saw

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the Superintendent of Police and gave him the letter and the

envelope and asked for immediate protection and

investigation. The Superintendent of Police, however, took

no action in this behalf. Mangilal failed to comply with

the demand ,to pay.. On the 17th of July about 9-30 p.m.

when he was sitting at his shop and his inunim Gajanand was

writing the accounts two persons came from the neighbouring

street. One of them was dressed in a khaki suit and the

other in a blue suit. The man in blue demanded from

Mangilal a reply to the letter, while the man in khaki

entered the shop and removed Mangilal's gun which was

hanging in a canvas case from a

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peg on the wall of the shop. On Mangilal's replying that

his son Laduram had taken the letter to Ajmer, the person

dressed in blue fired from a Mauser pistol and shot Mangilal

dead. The two assailants then ran away. On the way they

threw the Mauser pistol and khaki clothes in the street at a

short distance from the shop. Mangilal died shortly

afterwards. The first information report was lodged by Nand

Lal (P. W.1) immediately after the occurrence at 9-45 p.m.

In this report Nand Lal described the occurrence in the

following terms :

" From the lane two men, one of whom was wearing khaki

clothes having a hat on the head and the. other wearing blue

clothes with a blue cap on the head came near Mangilalji and

stood there. The man with khaki clothes said something to

Mangilal and the man with blue clothes went straight inside

the shop and picked up Mangilal's gun from behind the door

shutter and brought it out and stood near the khaki clad

man, and at that time shot Mangilal with a pistol he had. "

The prosecution challaned four persons, viz., Hem Raj,

appellant in Criminal Appeal No. 58 of 1953, Hukum Singh,

respondent in Criminal Appeal No. 87 of 1953, Milap Singh

and Abdul Hakim. It was alleged that all the four of them

had acted in conspiracy and realised, money from rich

persons through threatening letters and in pursuance of the

conspiracy Exhibit P-5 was sent. Hem Raj and Hukum Singh

were arrested on the evening of the 26th July at Bijainagar

and were sent to jail on the 28th of July, 1952. On the

30th of July, 1952, Hem Raj made a confession in jail before

a Magistrate. On the 5th of September, 1952, at the first

hearing of the case before the committing Magistrate, the

confession was retracted by means of an application made

through counsel and a number of grounds were given why the

confession was inadmissible and not of any value. All the

accused persons denied the charge. Milap Singh and Abdul

Hakim were acquitted by the learned Sessions Judge who how-

ever convicted Hem Raj and Hukum Singh of the different

offences with which they had been charged. Hem Raj and Hukum

Singh appealed to the Judicial

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Commissioner at Ajmer. Hukum Singh's appeal was allowed but

that of Hem Raj was dismissed. As stated already, Hem Raj's

appeal before us is by special leave and the State has also

appealed against the acquittal of Hukum Singh and that also

by special leave.

Dr. Tek Chand for Hem Raj raised three points before us:

(1) That the confession was inadmissible in evidence, the

prosecution having failed to establish affirmatively that it

was free and voluntary and that it was not preceded by any

inducement to the prisoner to make a statement held out by a

person in authority. It was said that as no direct or

circumstantial evidence of any kind was available, the

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police was straining every nerve to get any one of the four

persons arrested confess, so that he may be given pardon and

made an approver. The police was particularly keen to make

somebody an approver because of their own negligent conduct

in not giving protection to the deceased when Laduram, his

son, had approached the Superintendent of Police with the

threatening letter received by him and that the police also

had not been able to discover how the pistol had been stolen

from its owner. It was contended that Hem Raj was actually

arrested on the 25th July and illegally kept in custody,

that even after remand by the Magistrate he was not

immediately sent to jail but was taken to the house of the

Superintendent of Police and kept there for more than four

hours, that all these circumstances raised a strong

suspicion against the voluntary character of the confession

and showed that the police was making efforts by threats and

inducements to extort a confession from him. It was further

suggested that while Hem Raj was in jail the Superintendent

of Police paid him a visit. There is no relevant evidence

to establish this fact.

(2) That the Magistrate who recorded the confession

did not disclose his identity that he was a Magistrate to

Hem Raj and that instead of recording the confession in his

court room he recorded it in jail without any sufficient

grounds for doing so and this circumstance also vitiated the

confession.

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(3) That there was no independent corroboration of any of

the material facts contained in the confession and that

whatever material has been considered as corroboration by

the courts below was already in the possession of the police

before the confession was recorded and therefore the

confession was merely a recital of facts already in

possession of the police and was modelled on it and that the

police discovered nothing in pursuance of the confession and

their knowledge about the material facts of the case was not

enriched in any manner by the confession and therefore there

was no evidence whatsoever in the case on which the

conviction of the appellant could stand.

The learned Judicial Commissioner as well as the,

learned Sessions Judge considered all these contentions and

negatived them and there were valid reasons for doing so.

On the question whether the confession was voluntary, there

are concurrent findings of the courts below and there are no

grounds for going behind these findings. On the question

whether material particulars of the confession have been

corroborated, there are again concurrent findings. All the

arguments addressed to us relate to the re-appreciation of

evidence which had been believed by the courts below and do

not warrant interference by us in the decisions of the

courts below. We have, however, also examined these

arguments independently and we have no hesitation in

endorsing the views of the courts below.

As regards the voluntary nature of the confession, the

significant fact is that the confession was made on the 30th

of July, that is, two days after Hem Raj had been lodged in

jail, and was not in police custody or amenable to police

influence. He had more than 36 hours to make up his mind

whether to make a confession or not. He is not a rustic but

runs a cycle shop in Bijainagar. It is noteworthy that

Hukum Singh was similarly situated and about whom an

application had been made that he was willing to confess.

When , the Magistrate approached him he said that he would

only make a statement after consulting his lawyer and

declined to make any statement. Further from the 30th of

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July till the 5th of September no

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steps were taken by Hem Raj to resile from his confession.

There was ample time at his disposal to make an application

to the Magistrate or to the District Magisrate that the

confession had been extorted from him by threats and

inducement. On the 5th of September when an application

was made by his counsel refracting the confession it was

more in the nature of an argument than in the nature of a

detailed statement of the facts and circumstances in which

the confession had been made. When examined under section

342, Criminal Procedure Code, he said that he made the

confession under threats held out by the Superintendent of

Police and Sri Ram Chandra, Sub-Inspector. He further said

that the Superintendent of Police told him "that if I made a

confession of my guilt, I would be made an approver ; the

Superintendent of Police said that he was a Vaishya and as I

too was a Vaishya he would help me. I told the

Superintendent of Police that I would do as he asked me to

do. About 10-30 a.m. on the 30th of July Sub-Inspector Ram

Chandra came to jail and compelled me to make a confession."

The last portion was clearly a lie as there is no evidence

whatsoever that Ram Chandra visited him at the time the

Magistrate recorded his confession.

The Magistrate who recorded the confession has been

examined, and he states that he told the prisoner that he

was a Magistrate and that he complied with all the

requirements of law in recording the confession. The

memorandum made by him shows that the following questions

were put to Hem Raj: " Do you wish to make a, confession?",

to which Hem Raj replied " Yes ". " Are you making it of

your own free will and without the compulsion of anybody?";

the answer was " Yes:". The third question was "You are not

bound to make a confession. Do you understand this?? The

answer was "Yes". The fourth question. was : " If you make

a confession it maybe used in evidence against you. Do you

realize this?" The answer was " Yes ". The last question was

" Shall I record your confession ? " The answer was II Yes

". It was after these queries that a confession covering

about 21 pages and full of details which are precise and

cannot be

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described as vague was recorded. The police could not even

dream of these details or make an effort to tutor such a

detailed confession to the prisoner and it is absolutely

unthinkable that such a tutored confession could be narrated

by Hem Raj to the Magistrate after 36 hours of any possible

attempt made to tutor him. As a matter of fact, some of the

facts contained in the confession and indicated later were

not even known to the police then. The confession contained

the usual endorsement that the confession was voluntary and

all the necessary matters had been explained to the prisoner

before he made the confession. It is significant that the

confession was not retracted till Hem Raj took legal advice

and even then it was not stated who supplied all the details

contained in the confession to Hem Raj. The allegations

made by the prisoner have been denied by the police officers

examined and we-are not inclined to accept those allegations

as true. The circumstances relied upon by Dr. Tek Chand

regarding the conduct of the police before Hem Raj was

lodged in jail do not, in our opinion, affect the voluntary

character of the confession. The contention that the

Magistrate did not tell the prisoner that he was a

Magistrate is also belied by the Magistrate's evidence. No

doubt the confession was recorded in jail though ordinarily

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it should have been recorded in the court house, but that

irregularity seems to have, been made because nobody seems

to have realized that was the appropriate place to record

it but this circumstance does not affect in this case the

voluntary character of the confession. Dr. Tek Chand drew

our attention to a quotation from Taylor's Evidence, 11th

Edn., page 588; par&. 872, and to the decision in Queen v.

Thompson(1), in which it had been emphasized that in order

that evidence of a confession by a prisoner may be

admissible, it must be affirmatively proved that such

confession was free and voluntary and that it was not

preceded by any inducement to the prisoner to make a

statement held out by a person, in authority, or that it was

not made until after such inducement had clearly been

removed-. The

(1) [1893] 2 Q.B 12.

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principle laid down in that case is well. settled, but we

do, not think that Dr. Tek Chand is right in contending that

that principle has not been borne in mind by the courts

below; The mere bald assertion by the prisoner that he was

threatened, tutored or that inducement. was offered to him,

cannot be accepted as true without more. There is no

material whatsoever to hold that the prisoner was threatened

or beaten. As a fact it has been found by the courts below

that that assertion was untrue. The story of tutoring, on

the face of it, is incredible. It was not possible for the

police or anyone to teach the prisoner all that is contained

in the confession. As regards inducement, again, there is

no material whatsoever and the circumstances relied upon are

not such which raise a suspicion that the confession was

extorted by inducement. Even if some suspicion of this,

character could be raised in this case, it has to be held

that the confession was made after the inducement had

clearly been removed.

As regards the -question whether the confession made by

Hem Raj has been corroborated in material particulars, we

are satisfied that there is sufficient evidence on the

record to justify the Judicial Commissioner's conclusion.

P.W. 34, Gajanand, an eye.witness of the occurrence, deposed

that the man in blue had the pistol and fired the fatal

shot. This is in line with what had been stated by Nand Lal

in the First Information Report though later on he made a

different statement. The courts below accepted the evidence

of Gajanand in preference to the statement Nand Lal. That

being so, Gajanand's evidence fully corroborates the

confession of Hem Raj that it was he who fired the fatal

shot and that he was dressed in blue uniform.

On the 18th of July, 1952, certain articles were

recovered from Hem Raja house-a hat, a mask., a bush shirt

and a pistol. These recoveries are good independent

evidence in corroboration of the confession. On the 25th

July, 1952, certain other items were admittedly recovered

from Hem Rajas house and these also corroborate the

confession. Hem Raj also

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delivered to the police a black pair of socks, a slate

coloured muffler, a blue pair of shorts and a torch. These

deliveries further support the confession. Then Certain

recoveries were made, as stated in the confession, from the

roof of Bansilal's shop on 27th of July, 1952. These were a

revolver and a number of cartridges. Lastly there is the

recovery of the gun case and the gun. The learned Judicial

Commissioner, in these circumstances, was justified in

holding that the confession had been corroborated in respect

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of clothes worn, by the assailant, and in respect of the

arms and ammunition and that it was also corroborated by the

removal of the latch from the shop of Hukum Singh.

Dr. Tek Chand contended that the recovery of clothes and

delivery of arms and ammunition by Hem Raj to the police had

been made before the 30th of July , when the confession was

made, and that facts within the knowledge of the police

before the confession wag made, could not be used as

evidence corroborating the confession. For this proposition

he placed reliance on a decision of the Oudh Chief Court in

Mata Din v. The Emperor(1), wherein it was observed that a

true confession made by a person who takes part in a murder

invariably adds something to the knowledge already possessed

by the investigating officer and that is the greatest test

of its truth.

In our opinion, the contention raised by the learned

counsel is not were founded. In the first instance,it is

not correct to say that all the facts mentioned in the

confession were known to the police at the time when the

confession was made. The police did not know anything about

the existence of 30 bore cartridges. They did not know as

to who had written the letter Exhibit P-5 and did not know

who had gone to Beawar to post it. The police also did not

know that death had been caused by a, shot from a Mauser

pistol Exhibit P-19. Be that as it may ,we see no validity

in the contention that a confession can only be corroborated

by evidence discovered by the police after a confession has

been made and any material that is

(1)A.I.R. 1931 Oudh 166.

1143

already in their possession, cannot be put in evidence in

support of it. The decision in Mata Dins case(1) does not

support the view contended for. That decision merely

concerns itself with the value of a confession and does not

relate to the nature and character of evidence that can be

led to corroborate it. It does not lay down the proposition

that a confession cannot be corroborated by use of materials

already in possession of the police. A confession can be

made -even during a trial and the evidence already recorded

may well be used to corroborate it. It may be made in the

court of the committing Magistrate and materials already in

possession of the police may well be used for purposes of

corroboration. The contention therefore that evidence in

possession of the police before the confession was made,

cannot be used to corroborate the confession, must be

repelled.

The result is that the evidence in conjunction with the

confession satisfactorily establishes the charge under

section 302/ 34, Indian Penal ,Code, against Hem Raja and

also satisfactorily ves the offence under section 386,

Indian Penal Code. Dr. Tek Chand very strongly criticized

the conclusion reached by the Judicial Commissioner that.

the letter Exhibit P 5 was posted by Hem Raj. He contended

that from the more circumstance that Hem Raj was in Beawar

on the date the letter was posted it could Dot be inferred

that it was posted by him. We think that the criticism is

not valid and the inference drawn in the circumstances of

this case by the courts below could not be said to be

unreasonable.

As regards the State's appeal against Hukum Singh,

clearly the confession of Hem Raj cannot be used' as

substantive evidence against him. The learned public

prosecutor contended that Hukum Singh was the writer of the

letter Exhibit P-5 and the evidence furnished by the key

Exhibit P-12 found in his trouser pocket, coupled with the

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breaking of the door latch, and the circumstance that he was

seen together with Hem Raj, was sufficient material for his

conviction. We are unable to agree. We are of the opinion,

that the learned Judicial commissioner was perfectly right

(1) A.I.R. 1931 Oudh 166.

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in holding that this evidence by itself was insufficient to

uphold his conviction and that Hukum Singh was entitled to

the benefit of the doubt in respect of both the charges

found against him. There is hardly any material on the

record to justify our interference with an order of

acquittal in an appeal by special leave. In the result both

these appeals fail and are dismissed.

Appeals dismissed.