Hem Raj vs The State Of Ajmer
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeals Nos. 58 and 87 of 1953
Decision Date: 17 March 1954
Coram: Mehar Chand Mahajan, Vivian Bose, Ghulam Hasan
In the matter titled Hem Raj versus The State of Ajmer and connected appeals, the Supreme Court of India delivered its judgment on 17 March 1954. The opinion was authored by Justice Mehar Chand Mahajan, who sat as the Chief Justice, together with Justices Vivian Bose and Ghulam Hasan. The petitioner was Hem Raj and the respondent was The State of Ajmer. The case carries the citation 1954 AIR 462 and 1954 SCR 380, and it has been referenced in subsequent reports such as R 1957 SC 216, R 1959 SC 633, F 1961 SC 100, F 1971 SC 1405, RF 1976 SC 758, F 1977 SC 472, R 1988 SC 696, R 1988 SC 1883, and R 1989 SC 1890. The constitutional provision at issue was article 136(1) of the Constitution of India, concerning the principles that govern the exercise of the Supreme Court’s extraordinary powers under that article, as well as the evidentiary question of whether a confession may be corroborated by material already in the possession of the police.
The headnote of the judgment explained that the Supreme Court will not invoke its overriding powers under article 136(1) unless it is shown that exceptional and special circumstances exist, that a substantial and grave injustice has been done, and that the case presents features of sufficient gravity to warrant a review of the decision appealed against. The mere fact that an appeal has been admitted by special leave does not give the appellant the right to open the entire case, contest every factual finding, or raise every point that could have been raised in the High Court. Even at the final hearing, only those points that could reasonably have been urged at the preliminary stage when leave to appeal was sought may be raised. The Court rejected the contention that a confession cannot be corroborated by the use of material already possessed by the police, holding that a confession made and recorded, even during trial, may be corroborated by evidence already recorded. It may be made and recorded before the magistrate of committing, and material already in police possession may be employed for the purpose of corroboration. The judgment referred to the authorities of Queen v Thompson ([1893] 2 Q B 12) and Mata Din v The Emperor (AIR 1931 Oudh 166) in support of this view.
The judgment concerned Criminal Appeals Nos 58 and 87 of 1953. Special leave to appeal was granted by the Supreme Court on 30 June 1953 from the judgment and order dated 25 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, which arose out of the judgment and order dated 18 March 1953 of the Sessions Judge at Ajmer in Sessions Trial No 1 of 1953. A second grant of special leave was made on 27 October 1953 from the judgment and order dated 25 April 1953 of the Judicial Commissioner at Ajmer in Criminal Appeals Nos 14 and 15 of 1953 and the corresponding criminal reference. The Court’s decision therefore addressed the procedural and substantive issues raised in those appeals, applying the principles outlined above regarding the limited scope of special-leave appeals and the admissibility of corroborative material for a confession.
Criminal Appeal No. 58 of 1953 and Criminal Appeal No. 87 of 1953 stem from the same incident and were both decided in the judgment dated 18 March 1953 of the Sessions Judge of Ajmer in Sessions Trial No. 1 of 1953. The appellant in Appeal 58 was represented by counsel Bakhshi Tek Chand together with Bhagwan Singh and Rajinder Narain, while counsel B.D. Sharma appeared for the respondent in Appeal 58 and for the appellant in Appeal 87. Counsel K.N. Agarwala represented the respondent in Appeal 87. The judgment of the Court was delivered on 17 March 1954 by Chief Justice Mahajan.
The Court observed that both appeals, although entertained on separate occasions by special leave of this Court, concerned the same set of facts and therefore required the same standard of review. The Court explained that, under Article 136(1) of the Constitution, it may intervene only when there are exceptional and special circumstances showing that a substantial and grave injustice has occurred and that the case possesses sufficient gravity to merit a re-examination of the decision under appeal. The mere grant of special leave does not permit an appellant to reopen the entire case, challenge every factual finding, or raise every point that could have been raised before the High Court. Even at the final hearing, parties may argue only those points that were appropriate to raise at the preliminary stage when the leave to appeal was sought. The issue before the Court was whether either of the two appeals satisfied this stringent test.
After hearing the counsel for both sides, the Court concluded that none of the matters raised in either appeal fell within the scope of the rule articulated above. Consequently, the Court declined to exercise its overriding powers under Article 136(1) and dismissed the appeals.
The factual background of the case was then recounted. On 16 July 1952, the deceased Mangilal, a partner of the firm Rambhajan Mangilal of Bijainagar, received an express-posted letter (Exhibit P-5) in a sealed envelope (Exhibit P-6). The letter was actually handed to Mangilal’s son Laduram, who opened it and discovered that it purportedly originated from a group calling itself “Bhayankar Daku Dal.” The letter demanded a payment of Rs 5,000 to be made at 6:30 p.m. on 17 July at a crossing near the 27th milestone on the Ajmer-Bijainagar road. It threatened that, if Mangilal cheated, committed an offence of “420,” or informed the police, he would be shot dead and left lying on the ground. Laduram took the original letter and envelope to his uncle Ramjas in Ajmer, and together they presented the material to the Superintendent of Police, seeking immediate protection and investigation. The Superintendent, however, took no action. Mangilal did not comply with the demanded payment. On the evening of 17 July, at about 9:30 p.m., while Mangilal was seated in his shop, the events that followed led to his death, as described in the subsequent part of the record.
In the matter, the Court recorded that while Gajanand was preparing the accounts, two men approached from the adjacent lane. One of the men was dressed in khaki attire and the other was dressed in a blue uniform. The man in blue demanded that Mangilal answer the threatening letter that had been received, while the man in khaki entered the shop and removed Mangilal’s gun, which was hanging in a canvas case on a peg on the wall of the shop. When Mangilal replied that his son Laduram had already taken the letter to Ajmer, the man in blue drew a Mauser pistol and shot Mangilal, who died shortly thereafter. The two assailants then fled the scene, discarding the Mauser pistol and the khaki clothing a short distance from the shop. The first information report was lodged by Nand Lal, identified as PW-1, at 9:45 p.m., immediately after the occurrence. In that report Nand Lal described the events as follows: “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 charged four persons – Hem Raj, Hukum Singh, Milap Singh and Abdul Hakim – alleging that they had conspired to extort money from wealthy individuals by sending threatening letters, including Exhibit P-5. Hem Raj and Hukum Singh were arrested on the evening of 26 July at Bijainagar and were placed in jail on 28 July 1952. On 30 July 1952, while in custody, Hem Raj made a confession before a magistrate. At the first hearing before the committing magistrate on 5 September 1952, the confession was withdrawn through an application filed by counsel, and several grounds were advanced to show that the confession was inadmissible and of no evidentiary value. All the accused denied the charges. The learned Sessions Judge acquitted Milap Singh and Abdul Hakim, but convicted Hem Raj and Hukum Singh of the offences with which they had been charged. Both Hem Raj and Hukum Singh appealed to the Judicial Commissioner at Ajmer. The Commissioner allowed Hukum Singh’s appeal and dismissed the appeal of Hem Raj. The present appeal by Hem Raj is by special leave, and the State has also filed a special leave appeal against the acquittal of Hukum Singh. Counsel for Hem Raj, Dr Tek Chand, raised three points before the Court.
In this appeal, the counsel for the petitioner raised three principal submissions. First, it was contended that the confession could not be admitted as evidence because the prosecution had not positively established that the statement was made freely and voluntarily, nor had it shown that the confession was not obtained by any inducement from a person in authority. The petitioner argued that no direct or circumstantial proof existed of the confession’s voluntariness and that the police had been exerting every effort to obtain a confession from any of the four arrested individuals so that such a person could be granted a pardon and designated as an approver. The police’s eagerness, according to the petitioner, stemmed from their alleged negligent conduct: they had failed to protect the deceased when the victim’s son, Laduram, presented a threatening letter to the Superintendent of Police, and they had also been unable to determine how the pistol involved in the case had been stolen. It was further asserted that Hem Raj had been arrested on 25 July and unlawfully detained, and that after being remanded by the Magistrate he was not immediately taken to prison but was instead brought to the Superintendent’s residence where he remained for more than four hours. These circumstances, the petitioner's case held, created a strong suspicion that the confession was not voluntary and that the police had used threats or inducements to extract it. An additional allegation was made that the Superintendent of Police had visited Hem Raj while he was in jail; however, no evidence was produced to substantiate this claim.
Second, the petitioner submitted that the Magistrate who recorded the confession had failed to disclose his identity as a Magistrate to Hem Raj and had taken the confession in the jail rather than in his courtroom without any sufficient justification. This procedural irregularity, it was argued, vitiated the confession.
Third, the petitioner claimed that there was no independent corroboration of any material fact contained in the confession. According to the submission, the material that the lower courts had treated as corroboration was already known to the police before the confession was recorded. Consequently, the confession was merely a repetition of facts already in the police’s possession, and the police had uncovered nothing new through the statement. As a result, the petitioner maintained that there was no evidential basis on which the conviction of the appellant could rest.
The learned Judicial Commissioner, as well as the learned Sessions Judge, examined each of these contentions and rejected them, providing reasons they deemed appropriate. Regarding the voluntariness of the confession, the courts below arrived at concurrent findings that the confession was voluntary, and the present Court found no basis to overturn those findings. Similarly, on the issue of corroboration of the confession’s particulars, the lower courts’ concurrent findings were upheld. All of the arguments presented to this Court were therefore addressed and found to lack merit.
The submissions before this Court mainly sought a fresh assessment of the evidence that the lower courts had already evaluated, and therefore they did not justify interference with those courts’ decisions. Nevertheless, the Court examined the arguments independently and found no reason to disagree with the findings of the lower tribunals. Regarding the voluntariness of the confession, a critical fact is that the confession was recorded on 30 July, which was two days after Hem Raj had been placed in jail and was no longer in police custody or subject to police pressure. He had more than thirty-six hours to decide whether to confess. Hem Raj is not a rustic; he operates a cycle shop in Bijainagar. It is notable that Hukum Singh, who was in a similar situation, was approached by the Magistrate after an application indicating his willingness to confess; however, he replied that he would only give a statement after consulting his lawyer and refused to make any statement at that time. From 30 July until 5 September, Hem Raj took no steps to withdraw his confession. He had ample opportunity to file an application with the Magistrate or the District Magistrate alleging that the confession was obtained by threats or inducements. When, on 5 September, his counsel filed an application challenging the confession, the submission was more argumentative than a detailed account of the circumstances in which the confession was allegedly obtained. Under section 342 of the Criminal Procedure Code, Hem Raj claimed that he made the confession under threats from the Superintendent of Police and Sub-Inspector Sri Ram Chandra. He alleged that the Superintendent told him that, if he confessed to the crime, he would be made an approver and that, being a Vaishya, the Superintendent would help him because Hem Raj was also a Vaishya, to which Hem Raj replied that he would comply. He further asserted that around 10 to 30 a.m. on 30 July, Sub-Inspector Ram Chandra visited the jail and forced him to confess. This latter allegation was found to be false, as there is no evidence that Sub-Inspector Ram Chandra visited the jail at the time the Magistrate recorded the confession. The Magistrate who recorded the confession was examined and affirmed that he identified himself as a Magistrate and that he complied with all legal requirements in recording the confession. The magistrate’s memorandum shows that the following questions were put to Hem Raj: “Do you wish to make a confession?” to which he answered “Yes”; “Are you making it of your own free will and without the compulsion of anybody?” to which he answered “Yes”.
The Court recorded that the third question posed to Hem Raj was whether he understood that he was not compelled to make a confession, to which he replied affirmatively. The fourth question asked him if he was aware that any confession he made could be employed as evidence against him, and he again answered in the affirmative. The final question was whether the Magistrate should proceed to record his confession, and Hem Raj consented. Following these inquiries, the Magistrate documented a confession that extended to approximately twenty-one pages and contained numerous precise details that could not be described as vague. The Court observed that the police could neither have imagined nor been able to teach the prisoner the extensive particulars set forth in that confession, and it was inconceivable that such a meticulously “tutored” confession could have been narrated by Hem Raj to the Magistrate after a period of thirty-six hours in which any attempt at tutoring might have been made. Moreover, the Court noted that some of the facts contained in the confession were not even known to the police at the time of its recording. The confession was accompanied by the customary endorsement stating that it was made voluntarily and that all necessary matters had been explained to the prisoner before he spoke. It was further significant that Hem Raj did not retract the confession until after he had obtained legal advice, and even then it was not disclosed who had supplied the detailed information incorporated in the confession. The Court found that the allegations raised by the prisoner were denied by the police officers examined, and it was not inclined to accept those allegations as true. The circumstances cited by Dr Tek Chand concerning police conduct before Hem Raj’s detention in jail, in the Court’s view, did not affect the voluntary nature of the confession. The contention that the Magistrate failed to inform the prisoner of his status as a Magistrate was also rejected, being contradicted by the Magistrate’s own testimony. Although the confession was recorded in jail rather than in a court-house—a procedural irregularity that apparently arose from a lack of awareness of the proper venue—the Court held that this defect did not impinge upon the confession’s voluntariness. Dr Tek Chand had referred the Court to a passage in Taylor’s Evidence, eleventh edition, page 588, paragraph 872, and to the decision in Queen v Thompson [1893] 2 Q.B 12, which emphasised that for a prisoner’s confession to be admissible, it must be positively proved to be free and voluntary, without any prior inducement, or that any inducement had been clearly removed before the confession was made. While acknowledging that the principle articulated in that case is well-settled, the Court concluded that Dr Tek Chand was not correct in asserting that the lower courts had failed to keep that principle in mind.
The Court observed that a mere bare-knuckle claim by the accused that he had been threatened, tutored or induced could not be accepted as true without any supporting evidence. It noted that there was no material at all to show that the accused had been threatened or beaten, and that the lower courts had already found such an assertion to be untrue. The notion that the police or anyone else had tutored the accused in all the details contained in the confession was described as incredible, because it was not possible for the police to teach him everything that appeared in the statement. Regarding inducement, the Court held that there was no material to suggest that any inducement had been offered, and that the surrounding circumstances did not raise any suspicion that the confession had been obtained by coercion. Even assuming that some suspicion could be raised, the Court said that it must be shown that the confession was made after any alleged inducement had clearly been removed. Turning to the question of whether the confession made by Hem Raj had been corroborated in material particulars, the Court was satisfied that the record contained sufficient evidence to support the Judicial Commissioner’s conclusion. It pointed out that PW 34, Gajanand, an eyewitness, testified that a man dressed in blue possessed a pistol and fired the fatal shot; this testimony was consistent with the initial statement in the First Information Report made by Nand Lal, although Nand Lal later altered his statement. The lower courts had given preference to Gajanand’s evidence over Nand Lal’s later version, and therefore Gajanand’s testimony fully corroborated Hem Raj’s confession that he had fired the fatal shot while wearing a blue uniform. The Court further noted that on 18 July 1952 certain items were recovered from Hem Raj’s house, namely a hat, a mask, a bush shirt and a pistol, which constituted independent evidence corroborating the confession. Additional items were recovered from the same house on 25 July 1952, and these also supported the confession. Moreover, Hem Raj had delivered to the police a black pair of socks, a slate-coloured muffler, a blue pair of shorts and a torch, and these deliveries further reinforced the truth of his confession. The Court also recorded that, as alleged in the confession, a revolver together with several cartridges was recovered from the roof of Bansilal’s shop on 27 July 1952, and that the gun case and the gun themselves were subsequently recovered. In this factual context, the Judicial Commissioner was justified in holding that the confession was corroborated with respect to the clothing worn by the assailant, the arms and ammunition, and also by the removal of the latch from Hukum Singh’s shop. Dr Tek Chand, however, contended that the recovery of the clothing and the delivery of the arms and ammunition by Hem Raj to the police had occurred before 30 July 1952, the date on which the confession was made, and argued that facts already known to the police prior to the confession could not be used as corroboration.
The argument advanced by counsel relied on the decision of the Oudh Chief Court in Mata Din v. The Emperor, wherein the Court observed that a genuine confession by a participant in a murder necessarily adds to the knowledge already possessed by the investigating officer and that this addition constitutes the supreme test of the confession’s truth. The Court, however, found that the contention raised by the learned counsel was not founded. Firstly, it was incorrect to assert that every fact mentioned in the confession was already known to the police at the time the confession was recorded. The police were unaware of the existence of the thirty-bore cartridges, they did not know who had authored the letter identified as Exhibit P-5, they were ignorant of the person who had traveled to Beawar to post the letter, and they had no knowledge that the death had been caused by a shot from a Mauser pistol identified as Exhibit P-19. Consequently, the Court rejected the proposition that a confession may be corroborated only by evidence discovered after the confession and that any material already in the police’s possession could not be introduced to support the confession. The decision in Mata Din does not endorse such a view; that decision dealt solely with the evidentiary value of a confession and made no pronouncement on the nature or character of evidence that may be employed for corroboration. The Court clarified that a confession may be made even during trial, and the evidence already recorded by the police may be used to corroborate it. Likewise, a confession made before a magistrate may be supported by material already in police possession. Accordingly, the contention that pre-confession evidence could not be used to corroborate a confession was dismissed. In the result, the Court held that the evidence, when considered together with the confession, satisfactorily established the charge under sections 302 and 34 of the Indian Penal Code against Hem Raj, as well as the offence under section 386 of the same Code. Dr Tek Chand strongly criticised the Judicial Commissioner’s conclusion that the letter Exhibit P-5 had been posted by Hem Raj, arguing that Hem Raj’s presence in Beawar on the date the letter was posted did not inevitably imply that he had posted it. The Court found this criticism to be unavailing and concluded that the inference drawn by the lower courts, given the surrounding circumstances, was not unreasonable. With respect to the State’s appeal against Hukum Singh, the Court noted that the confession of Hem Raj could not be used.
In this part of the proceeding, the Court examined whether the material produced could be treated as substantive evidence against the accused Hukum Singh. The learned public prosecutor argued that the letter identified as Exhibit P-5 had been authored by Hukum Singh, and that the presence of Exhibit P-12, a key recovered from the pocket of the accused, together with the fact that the door latch had been broken, and the observation that Hukum Singh had been seen in the company of Hem Raj, together constituted sufficient basis for a conviction. The Court, however, found that this line of reasoning could not be accepted. The opinion of the Court was that the learned Judicial Commissioner had correctly applied the precedent set in A.I.R. 1931 Oudh 166 at page 144, which held that the evidence described, taken alone, did not reach the threshold required to sustain a conviction. Accordingly, the Court concluded that Hukum Singh was entitled to the benefit of doubt with respect to each of the charges framed against him. The record did not contain any additional material that would justify overturning the order of acquittal that had been issued by the Judicial Commissioner, especially in an appeal that had been pursued by way of special leave. For this reason, the Court dismissed both appeals, holding that there was no basis to interfere with the earlier decision, and entered an order that the appeals were dismissed.