TMI Blog1954 (3) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the confession was retracted by means of an application made through counsel and a number of grounds were given why the confession was inadmissible and not of any value.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 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 police was straining every nerve to get any one of the four persons arrested c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial 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 July till the 5th of September no steps were taken by Hem Raj to resile from his co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it should have been recorded in the court house, but that irregularity seems to have, been made because nobody seems to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 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 in holding that this evidence by itself was insufficient to uphold his conviction and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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