JUDGMENT A. S. Srivastava, J. 1. Deshraj appellant has filed this appeal against the judgment and order dated 7-9-1977 of the Sessions Judge, Nainital convicting and sentencing him to imprisonment for life under section 302 IPC and to five years RI under section 201 IPC. The sentences are to run concurrently. 2. The appellant is a resident of village Saijani, P. S. Sitarganj, District Nainital. The deceased Smt.Mathura Bai was his wife. On 4-3-1977 at about 10.00 P.M. Smt. Mathura Bai died on a burning heap of Pual. The autopsy conducted on her dead body on 5-3-77 at 4.30 P.M. by Dr. S. P. Singh (PW 3) revealed extensive ante mortem burn injuries on her body. According to the doctor, her death was due to shock as a result of the burn injuries. 3. The case of the prosecution is that the deceased was married to the appellant about three years before her death. The relations between them had, however, become strained due to suspicion of the appellant about her chastity. Further a niece of the appellant was engaged to the brother of the deceased who was a disciple of a Sadhu. The appellant threatened to break that engagement if the deceased did not persuade her brother to leave that Sadhu. The appellant was also aggrieved by the deceased because she did not bear any child for him. 4. On 5-3-1977 at 6.50 A.M. a report about this incident was lodged by Pale Ram (PW 7), the elder brother of the appellant, in which he had reported that for sometime the mental state of the deceased was unsound and on that morning she entered a heap of Pual after setting fire to it. She could, however, not be saved despite the efforts made by her husband and other residents of the village for extinguishing that fire. On 8-3-1977 however, another report was lodged at the police station by Sunder Ram (PW 1) brother of the deceased, alleging that his sister was burnt to death by the appellant by throwing her on the Pual and by setting fire to it on account of bad relations existing between them. In that report, he had also mentioned that he had no evidence in support of his report and that his report was based on his suspicion. 5. The appellant was arrested on 9-3-1977. In that report, he had also mentioned that he had no evidence in support of his report and that his report was based on his suspicion. 5. The appellant was arrested on 9-3-1977. Before his arrest, it is alleged, the appellant had made a confessional statement before Ram Swarup Singh, the President of the Congress Committee, Sitarganj (PW 2) that the deceased was a lady of bad character and; she had become unconscious after the appellant had given her a Danda blow. The appellant then set fire to her body. The day following his arrest, i.e. on 10-3-1977 the appellant was produced by the police before Sri Ghanshyam Pandey, Special Judicial Magistrate, Haldwani (PW 8) who recorded his other confessional statement under section 164 CrPC. 6. As a result of investigation in course, a charge sheet was submitted against the appellant by the I.O. Guna Nand (PW 10). The prosecution has examined 10 witnesses in all. Out of them, there are only three material witnesses, viz. Ram Swarup Singh (PW 2), Ghansyam Pandey (PW 8) and Wakt Ali Gandlni (PW 9). 7. The appellant has denied the prosecution case. He has stated that he had rather tried to save the deceased from burning and in that process got his hands burnt. He has also denied that he had made a confessional statement either before Ram Swarup Singh (PW 2) or before the Magistrate. The statement recorded by the Magistrate was not voluntary and was made after he was beaten by the police. He has produced one witness Dr. S. P. Singh (DW 1) in his defence. 8. After considering the above evidence, the learned Sessions Judge has held the case of the prosecution proved against the appellant. He has accordingly convicted and sentenced him as already stated above. As already stated, the only evidence of the prosecution against the appellant are the statements of three witnesses, viz. Ram Swarup Singh (PW 2), Ghanshyam Pandey (PW 8) and Wakt Ali Gandhi (PW 9). Ram Swarup Singh and Wakt Ali Gandhi have been examined to prove the statement which the appellant is alleged to have made before Ram Swarup Singh on 8-3-1977 at 9.00 A.M. wherein he is alleged to have confessed to have burnt the deceased. The statement of Wakt Ali Gandhi has not been relied upon by the trial court itself. Ram Swarup Singh and Wakt Ali Gandhi have been examined to prove the statement which the appellant is alleged to have made before Ram Swarup Singh on 8-3-1977 at 9.00 A.M. wherein he is alleged to have confessed to have burnt the deceased. The statement of Wakt Ali Gandhi has not been relied upon by the trial court itself. The trial court has given sound reasons to disbelieve his testimony. We also agree that the statement of this witness that he overheard the alleged conversation between the appellant and Ram Swarup Singh is not at all reliable. The statement of Ram Swarup Singh on which the trial court has placed reliance is also noteworthy of credence. He has admitted that the appellant was not known to him from before. He has further admitted that the appellant had never met him before that date. He has stated that the appellant had made the above statement to him at a public place i.e. at the crossing of Sitarganj Road where 8 to 10 other persons were also standing. Such a conduct of the appellant as disclosed by this witness is rather opposed to human conduct. If the appellant had committed such a crime, it was most unlikely that he would make such a confession at a public place within the hearing of 8 to 10 strangers to a person whom he had never met earlier. Therefore, his statement does not in any way inspire confidence. 9. The only evidence which now remains to be considered against the appellant is the statement recorded on 10-3-1977 under section 164 CrPC by Ghanshyam Pandey, Special Judicial Magistrate (PW 8) in which the appellant has confessed to have committed the crime by burning the deceased. The appellant has stated that he had not burnt the deceased and this statement is neither true nor voluntary. He had made this statement under pressure of the police and after receiving severe beating. 10. It is thus clear that the statement of the appellant recorded by the Magistrate stands repudiated. A conviction can be made on such a statement only when it inspires a belief about its being true and voluntary. This statement is Ex. Ka. 1. He remained in police custody since his arrest till the time he was produced in the court of the Magistrate on 10-3-1977. A conviction can be made on such a statement only when it inspires a belief about its being true and voluntary. This statement is Ex. Ka. 1. He remained in police custody since his arrest till the time he was produced in the court of the Magistrate on 10-3-1977. After the statement he was again taken to the police station from where he was sent to Dr S. P. Singh (DW 1: at 5.00 P.M. for medical examination of his injuries. That is, the appellant had to remain in police custody before and after he was produced before the Magistrate who had recorded his statement. In such circumstances a duty was cast upon the Magistrate to ensure that the statement of the appellant which he was going to record was voluntary. The act of recording confessions under section 164 CrPC is very solemn act and before recording such statement a Magistrate has first to be fully satisfied about the voluntary nature of the statement. Such a duty of the Magistrate follows from sub-section (2) of section 164 CrPC which reads as under :- "The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily." This sub-section apparently lays down certain questions which it intends to be put before recording statements under this section. As is clear from sub-section (2) of section 164 CrPC itself the Magistrate has to explain to the person making the confession that; he is not bound to make the confession and that, if need be, it may be used as evidence against him, for the sole object of satisfying himself as to whether the statement made by such person is being made voluntary. The section places a duty on the Magistrate not to record any such statement if he is not so satisfied. The question intended to be put under this section is not a formality to be performed by the Magistrate i.e. the enquiry envisaged in the sub-section is not an enquiry of mechanical nature. The section places a duty on the Magistrate not to record any such statement if he is not so satisfied. The question intended to be put under this section is not a formality to be performed by the Magistrate i.e. the enquiry envisaged in the sub-section is not an enquiry of mechanical nature. The Magistrate has in such enquiry to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise. In other words, the question put must be such so as to satisfy the Magistrate fully and doubtlessly that the confessional statement which the person wants to make is in fact and in substance voluntary. 11. If the statement Ex. ka 1 is examined, it will appear that the Magistrate has made a mechanical enquiry. The question put to the appellant were mere repetition of the language of section 154 (2) CrPC. The statement has no indication that the Magistrate had made any effort to satisfy himself and obtain an assurance about the genuine and voluntary character of this statement. In other words, the object of section 164 (2) CrPC does not seems to have been achieved in this case. In a case of this nature where an accused is charged with a murder, the Magistrate concerned was expected to have performed this duty in a responsible and cautious manner and not in a mechanical fashion. He should have made efforts to be wholly satisfied about the motive of the person offering to make a statement which could result in his conviction by putting some questions of searching nature such as questions about the reasons which had prompted! him to make an inculpatory statement and the like. 12. In this connection, the statement of the appellant that the police officer who had taken him to the court of the Special Judicial Magistrate for recording his statement was standing :at the door of the court room and from there he was making coercive gestures to the appellant when his statement was being recorded cannot be overlooked while examining Ex.ka 1, particularly when there is nothing on the record to show that the doors of the court room were closed when the statement of the appellant was recorded. Then, it may also be noted that immediately after recording of the statement, the appellant was taken by the police to the Civil Hospital, Haldwani where he was produced before Dr. S. P. Singh (DW 1) at 5.00 P.M. It is, therefore, difficult to hold that the statement Ex. ka 1 was voluntary statement of the appellant which can be safely be acted upon as a sole basis for his conviction. Then, there is another fact which excites suspicion about the voluntary character of this statement Ex. ka 1. As will appear from Ex. ka. 1 the Magistrate, after putting the questions formulated in the language of Section 164 (2) CrPC straight away recorded the statement of the appellant without giving him any time whatsoever to think about the statement he was going to make in the light of the questions put to him. No doubt the Magistrate has made the statement in the court that he had allowed 3 to 4 hours to the appellant to think over the matter but this statement of the Magistrate is not borne out from the statement Ex. ka 1 itself. Even the certificate appended to the statement is silent about it. It is, therefore, clear that the above statement was made by the Magistrate before the court from his memory which cannot be relied upon. Then, this statement of the Magistrate appears to be false also. According to him, the appellant was produced before him on 10-3-1977 at 2.30 p.m and he had recorded his statement after allowing him 3-4 hours to think over the matter. That means he bad recorded his statement sometime after 5 3o p.m. This is absolutely false because after recording of the statement, the police had taken the appellant to the Civil Hospital, Haldwani where his injuries were examined at 5.00 p.m by Dr. S. P. Siingh (DW 1). In that case, the appellant's statement was recorded much before 5.00 p. m. This fact further renders the statement of the Magistrate that he had allowed 3-4 hours to the appellant to think over after putting questions to him before recording bis statement unreliable. In fact if he had really done so, there was no reason for him not to mention this fact also in the certificate appended to the statement. 13. In the circumstances mentioned above, the statement Ex. ka. In fact if he had really done so, there was no reason for him not to mention this fact also in the certificate appended to the statement. 13. In the circumstances mentioned above, the statement Ex. ka. 1 of the appellant cannot be held to be his voluntary statement made before the Magistrate. It further appears that it was; recorded by the Magistrate without fully satisfying himself that the statement which the appellant had made before him was in fact and in substance voluntary and also without giving time to the appellant to think over the matter for sometime after the Magistrate had put questions as envisaged in section 164 (2) CrPC to him. Such a statement of the appellant alone cannot form the basis of the conviction of the appellant particularly when the appellant has retracted the same at the trial. The order of the learned Sessions Judge convicting the appellant based merely on this statement cannot, therefore, be upheld. 14. In the result, the appeal is allowed. The order of conviction and sentence of the appellant Deshraj is set aside the appellant is on bail. He need not surrender to his bail bonds which are hereby cancelled. Appeal allowed.