Abdul Razak Shaikh Ismail Shaikh vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 234

IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar A.D. Tated, JJ.
Abdul Razak Shaikh Ismail Shaikh .... Appellant.
Versus
State of Maharashtra .... Respondent.
Criminal Appeal No. 227 of 1984, decided on 7-8-1987.
Advocates appeared :
A.Y. Sakhare (appointed), for appellant.
R.T. Shinde, P.P., for respondent-State.

Headnote:Sections 164, 281 (5) and 463-Confessional statement - Evidence of the Magistrate, who recorded the confession and did not obtain signature thereon of the accused, who made the confession, as inadmissible.
       The confession is a very important place of evidence in a case and if the confession is found to be inadmissible. The other two circumstances are not sufficient to bring home the charge to be accused beyond reasonable doubt. Therefore, it iso necessary to examine whether the confession, recorded by the Judicial Magistrate is as per the provisions of Section 164 Cr. P. C. and could be admitted into evidence. As per the provisions of sub-section (4) of Section 164 Cr. P. C. it is mandatory for the Magistrate, after recording the confession, to obtain the signature of the accused thereon and as in the present case the learned Judicial Magistrate failed to obtain the signature of the accused on the confession recorded by him, that confession could not be admitted in evidence and the defect could not be cured by invoking the provisions of Section 463 Cr. P. C.
       It is to be considered whether non-obtaining of signature of the accused on the confessional statement recorded by the Magistrate under Section 164 Cr. P. C. is an irregularity which can be cured by invoking the provisions of Section 463 Cr. P. C. reproduced above. The language used in sub-clause (4) of Section 164 and sub-section (5) of Section 281 Cr. P. C. reproduced above indicate that it is mandatory on the part of the Magistrate recording confession to obtain signature of the person whose confession he has recorded. The omission in that behalf cannot be cured by examining the Magistrate under Section 463 Cr. P. C. The Magistrate when examined touching the confession he has recorded, can only say, that he has recorded the confession, but by such examination the omission to obtain his signature cannot be supplied. It appears that the provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and has been specially provided for, safeguarding the interest of the accused and, therefore, it is mandatory.

JUDGMENT - A.D. TATED, J.:---The appellant has been convicted for the offence of murder of his brother under section 302 of the Indian Penal Code and sentenced to life imprisonment by the learned 3rd Additional Sessions Judge, Thane, in Sessions Case No. 102 of 1983 decided on 19th August, 1983.

2. The prosecution case was that the deceased Shaikh Ibrahim Shaikh Ismail and the accused along with their mother and other relations previously resided in the same house at Ulhasnagar. Due to household difficulties Abdul Razak, the accused, started living separately in the same compound but in a different house. The deceased was working as a taxi driver. The accused was employed in a Burner factory at Ulhasnagar at a distance of about 2 km. from the house. The prosecution alleged that there used to be quarrels between the accused and deceased and also between the deceased and the wife of the accused. On 25th October, 1982 at about 12 noon there was a quarrel between the deceased and the wife of the accused. The wife of the accused went to the Burner factory where her husband was working and told him about the quarrel with a deceased. Thereupon the accused rushed to his house and stabbed the deceased with a sword-stick (Gupti). As the stab was on the abdomen, the deceased fell on the ground with a bleading injury. P.W. 1 Asgar Ali arrived on the scene and took the deceased in a rickshaw to the Police Station, and narrated the incident to the police. His F.I.R. was recorded. Soon thereafter the accused appeared at the Police Station and he produced the sword, stick before the P.I. The P.I. found the blade of the sword-stick stained with blood. He also found that the clothes on the person of the accused were stained with human blood. The clothes from the person of the accused and the sword-stick produced by him were seized by the police after drawing up panchanama. The deceased was sent to the hospital where he succumbed to the injury. During investigation the sword-stick and the clothes of the accused, clothes of the deceased and other articles were sent to the Chemical Analyser. The Chemical Analyser found that the blade of the Gupti was stained with human blood. He also found that the clothes of the deceased and those of the accused were stained with human blood of A, B, group. The blood of the accused was also taken and was sent to the Chemical Analyser. It was found of 'A' group. The statements of various witnesses were recorded during the investigation. The accused expressed his desire to make confession and, therefore, he was sent to the Judicial Magistrate, First Class, Ulhasnagar. The learned Judicial Magistrate, F.C. questioned him as to whether he willingly wanted to make confessional statement, and after recording his answers, he remanded him to the magisterial custody and gave him 48 hours time for reflection. The accused was produced again before him after 48 hours. The learned Magistrate again inquired with him whether he voluntarily wanted to makes voluntary statement, it could be used at the trial against him. As the learned Magistrate found that the accused was ready to make confession voluntarily, he recorded his statement in Hindi, in the language, in which the accused made the statement. The accused stated before the learned Magistrate that he stabbed his brother with Gupti and caused his death. After completing the investigation, charge-sheet was submitted against the accused in the Court of the Judicial Magistrate, First Class, Ulhasnagar for the offence punishable under section 302 of the Indian Penal Code. The learned Judicial Magistrate committed the case to the Court of Sessions.

3. The learned Additional Session Judge charged the accused for the offence of murder punishable under section 302 I.P.C. for intentionally causing the death of his brother Shaikh Ibrahim Shaikh Ismail. The accused pleaded not guilty to the charge. His defence was of complete denial.

4. The learned Additional Sessions Judge, on consideri

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