R.L. Narasimham, C.J. - (1.)THIS is an appeal by the State of Orissa against the judgment of the Sessions Judge of Mayurbharij, Baripada acquitting the respondent of an offence under Section 302 Indian Penal Code.
(2.)THE respondent is an aboriginal Ho boy aged about 16 years living in village Simba Sahi, P.S. Raruan in Karanjia sub -division of Mayurbhanj district. It appears that two of his brother died of illness 4 or 5 years ago. His father also was said to be suffering from continued illness for sometime, near about the date of occurrence namely 27 -8 -1962. The prosecution case was that the respondent suspected the deceased Let Bewa to be a witch and that he killed her on 27 -8 -1962, during night by first shooting her with an arrow and then by smashing her head with a piece of stone.
There is no eye -witness to the commission of the crime and the entire case depends on the extra -judicial confession said to have been made by respondent before several villagers namely P. Ws. 2, 3, 4 and 6 and also on his own confession before a Magistrate (P. W. 10) on 30 -8 -62. The recovery of a cloth stained with human blood from his possession was also taken as an incriminating circumstance against him.

(3.)SO far as the judicial confession is concern -ed the learned Sessions Judge rightly pointed out that it was not recorded in the manner required by law and that it should not be given any importance. The learned Magistrate (P. W. 10) who recorded the confession has not noted in the record that he informed the accused that he was a magistrate, that he was not bound to make a confession, and that if the confession was made it would be used as evidence against him even though he might retract later on. But he supplied these omissions by stating in Court that he did give him the necessary caution and also disclosed that he was a Magistrate. It is true that subsequent oral evidence is admissible to show that the requirements of Section 164 Criminal Procedure Code were satisfied though the official record may not indicate that those requirements were fulfilled.
But the question arises as to whether the belated evidence of the Magistrate should be admitted in this respect. We feel considerable doubt about the correctness of the Magistrate's statement that he told the accused that he was a Magistrate. He has put verbal questions to ascertain whether the accused was free from police influence but in none of these questions did he state that he was a Magistrate. Apart from this infirmity we find that in Para 5 of the official record of the confession (Ext. 9) where the statements of the accused were being recorded the Magistrate put them in the form of questions and answers. Some of the questions were of a leading nature.

The statutory form used for recording confessions under Section 164 Criminal Procedure Code itself shows that though questions may be put with a view to ascertain whether the accused is making the confession voluntarily (see parkas 3 and 4 of the form) when the actual statements of the accused about the incident are being recorded, the statements should not be in the form of questions and answers (paragraph 5) especially where the accused is an illiterate and immature youth of the aboriginal class, like the respondent. Some of the questions are definitely of a leading nature and coming as they did from a Magistrate, they might have created in the mind of the respondent an impression that he must admit as true any questions put to him. We are therefore not satisfied that the judicial confession is a complete record of what happened during the fatal night and hence the learned Session's Judge was justified in ignoring it.