JUDGMENT Dwivedi, J 1. In this appeal, the appellant Tilak has challenged his conviction under section 302 and 392 of the IPC for which he was sentenced to suffer imprisonment for life and seven years' rigorous imprisonment respectively. The sentences have been ordered to run concurrently. 2. The prosecution case is this. The appellant lives in front of the house of the deceased Ramu, his relation. Deceased Ramu started with money for village Bahegaon. At 2 p.m. Mooratpuri (PW 3) saw his dead body lying in a field Constable Ramsunder (PW 4), on learning of this, went to the place of incident with villagers and sent a written report Ex. P-l with Bastaram Katwar (PW 5), the police station being at a distance of five miles. On receipt of this report, Sub Inspector Kashiprased Tiwari (PW 1) reached the place of occurrence and held an inquest over the dead body of Ramu as per inquest report Ex. P 8. 3. Dr. Govind prasad Dube (PW 9) performed the post mortem examination on the dead body of Ramu at 9 a.m. on 12.9.1971 and found 27 incised wounds on his dead body. He found the following internal injuries: (i) Corresponding to external injury No. 1, all structures of neck, i.e. muscles, traschea, ossophagus, big veins, external and external carotid arteries and nerves etc. including injury to 3rd, 4th and 5th cervical veratebra which had fracture and dislocation. (ii) Skull had fracture of frontal bone under injury No. 24,1/2’ long. (iii) Skull had liner cut 1/2" long corresponding to external injury No. 26. (iv) Depressed fracture of Skull-bone corresponding to injury No. 27, 1/4" long. Dr. Dube opined that death occurred 18 to 24 hours prior to the post mortem examination. Injury No. 1 by itself, was sufficient to cause the death of the victim. The injuries found on the person of the deceased could be caused by sharp edged weapon. 4. As per report Ex P-20, Dr. K.M. Upadhyaya (PW 11) examined the appellant and found six injuries on his person. The injuries could be caused by hard and blunt object. 5. The appellant was interrogated and as per memorandum Ex-14, undertook to discover notes of Rs. 800.00 from inside the wall of his house. At his instance, notes were seized as per seizure memo Ex. P-15. As per seizure memo Ex. P-16, the appellant's underwear was seized. 6. The injuries could be caused by hard and blunt object. 5. The appellant was interrogated and as per memorandum Ex-14, undertook to discover notes of Rs. 800.00 from inside the wall of his house. At his instance, notes were seized as per seizure memo Ex. P-15. As per seizure memo Ex. P-16, the appellant's underwear was seized. 6. The appellant was arrested on 17-9-1971 at 2 p.m. and was produced before the Tahasildar and Magistrate Second Class Shri Prafullakumar Tiwari (PW 16) at 3 p.m. on 18.9.1971. The appellant was given time to reflect and was again produced at 12.30. p.m. before him on 20-9-1971 when Shri Tiwari recorded his confessional statement Ex. P-31. 7. Ex. P-32, report of the Chemical Examiner shows that blood-stains were found on the clothes of the appellant, sickle and other articles. Ex. P-34, the report of the Serologist, shows that the blood-stains on the clothes of the appellant were disintegrated and their origin could not be ascertained. 8. The appellant abjured his guilt and explained the injuries on his person because of itching. He stated that he was falsely implicated. 9. The point for decision in this appeal is whether the appellant is responsible for causing the death of Ramu and also robbing him of his notes. 10. We have learned Shri S.C. Dutta; Advocate for the appellant and Shri M.L. Chansoria, Govt. Advocate for the State. We are of the view for the reasons hereinafter stated that convictions of the appellant under section 302 and 392 of the IPC and sentences there under could not be sustained. 11. The prosecution examined Hanslal (PW 6) as an eye witness He stated that he had seen the appellant sitting over the abdomen of the deceased and assaulting him with a sickle. He informed about this to two boys of Sehora that a Lodhi boy of Nagpur had cut a man with a sickle. Those boys have not been examined. Para 20 of his evidence shows that he was detained by the police for three days and thereafter he had disclosed of what he had seen. He further admitted that the police had slapped him and was charging him for having murdered Ramu. Then he stated that everybody was naming the appellant and, therefore, he named Tilak as the person who had assaulted Ramu. He further admitted that the police had slapped him and was charging him for having murdered Ramu. Then he stated that everybody was naming the appellant and, therefore, he named Tilak as the person who had assaulted Ramu. Then the police asked him to point out the culprit out of 4 or 5 persons detained in the room. All these facts show that he is an untruthful witness and his evidence is liable to be omitted from consideration. 12. The main evidence against the appellant is the retracted judicial confession. Shri Tiwari (PW 16) recorded the judicial confession Ex, P-31. The appellant was produced before him at 3 p.m. on 18.9.1971 and be gave him time for reflection. He was produced at 12.30 p.m. on 20-9-1971. A perusal of the confession Ex. P-31 shows that the Magistrate framed questions a then elicited answers from the appellant. This he had done after perusing the cause diary and other police papers. 13. In Bhukin v. King Eemperor 35 MPLC 254 = ILR 1948 Nag. 147, it has been held as under. “.........that a Magistrate recording a confession ought to question the accused merely with a view to discovering whether the proposed confession is voluntary or on account of any inducement or threat, and that the Magistrate should not question the prisoner so as to get answers from him regarding the occurrence which would be inculpatory. The prisoner should be allowed to state whatever he wants, and the confession should be recorded in his own words.” The above observations were relied upon by this Court in Cr. A. No. 314/73 Rajkunwarbai v. State decided on 29-3-1974 Cr. A. No. 178/68 State v. Tulsiram and others decided on 10-2-1971 and Cr. A. No. 84067 Chhite and another Y. State decided on 10-2-1971. 14. The above law shows that it should be the entire initiative of the prisoner himself to state whatever he wants to depose. The confession should not only be voluntary but also should be uninfluenced by any other factor. It is not open to a Magistrate recording the confession to lead the accused as if he is examining a witness. The accused should be left to himself to state whatever he likes and it is not the business of the Magistrate to lead him or to examine him like a witness. 15. It is not open to a Magistrate recording the confession to lead the accused as if he is examining a witness. The accused should be left to himself to state whatever he likes and it is not the business of the Magistrate to lead him or to examine him like a witness. 15. In view of the law as stated above and looking to the contents of Ex. P-31 it is apparent that the Magistrate, after perusal of the case diary and other papers framed questions and elicited answers thereon from the appellant. It could not, therefore, be said that the entire initiative was of the appellants himself to state whatever he wanted to depose. In view of these facts, we hold the confessional statement Ex. P-31 inadmissible in evidence. 16. The other circumstances relied upon by the prosecution against the appellant is the discovery of notes as per memorandum Ex. P-14. The method adopted by Anooplal (PW 1) in identifying the notes liven by him to the deceased is not at all satisfactory and we are not satisfied with the identification of the notes. 17. As regards the articles recovered from the appellant, they have not been found to be stained with human blood and therefore, the seizure of the articles could not be used as an incriminating circumstance against the appellant. 18. In the aforesaid circumstances, we find that the lower Court has wrongly convicted the appellant u/s 302 and 192 of the IPC. His convictions deserve to be set aside. 19. For the reasons given above the appeal succeeds and is allowed. Convictions of the appellant Tilak under section 302 and 392 of the IPC and sentences there under are set aside and he is acquitted of the offences charged with. He shall be released forthwith unless required to be detained in any other case.