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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. 1134     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 1135 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 147 1136 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 1137 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. 1138 (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 1139 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 1140 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. 1141 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 1142 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. 148 1l44 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.