B. K. BEHERA, J. ( 1 ) HERE is one of the many cases one comes across where the prosecution seeks to build its case on an extrajudicial confession alleged to have been made by the accused for commission of an offence of murder. The appellant is alleged to has killed Sombari to be referred to hereinafter as Tthe deceased by shooting an arrow with the intention of causing her death on October 24, 1980 and the reason was said to be a previous quarrel between the appellant and the deceased of which there was paucity of evidence and the vague evidence in this regard of the husband of the deceased (P. W. 1) had not received corroboration from the evidence of any other co-villager. While P. W. 1 and his wife (deceased) were sleeping on the land. P. W. 1 Nos roused from sleep by a cry raised by the deceased that she had been shot at by an arrow. P. W. 1 saw that an arrow had stuck to the chest of the deceased and she succumbed to the injury. Owing to fear for his own life, P. W. 1 left the spot, remained in the jungle and on the day following, informed the co-villagers who came to the scene of attack and saw the dead body of the deceased tying with the arrow (M. O. 1) sticking to her chest Sometime in the evening. PW. 1 accompanied by the Grama Rakshi (not examined), went to the police station and lodged the first information report (Ext. 5) without naming anyone as the culprit, but suspecting the appellant and Sonia Munda as they had previous enmity with him and his wife, as stated therein which could not constitute substantive evidence. Investigation followed, witnesses were examined and the dead body was sent for autopsy. The statement of the appellant led to the discovery of an araow (M. O. II) and a Bira (M. O. III) from the house of the appellant. On the completion of investigation, a chargesheet was placed and the appellant was prosecuted. ( 2 ) AS has been submitted at the Bar by the learned counsel for both the sides, but or the extra- judicial confession, there was no other evidence pointing to the guilt of the appellant. On the completion of investigation, a chargesheet was placed and the appellant was prosecuted. ( 2 ) AS has been submitted at the Bar by the learned counsel for both the sides, but or the extra- judicial confession, there was no other evidence pointing to the guilt of the appellant. Miss Mira Ghosh, the learned counsel for the appellant, has submitted that the evidence with regard to the extrajudicial confession did not deserve credence and ought not to have been accepted. Mr. N. C. Panigrahi, the learned - Additional Government Advocate, has contended that the order of conviction is well founded. ( 3 ) THE recovery of M. Os. 2 and 3 from the house of the appellant, even accepting that it had been made consequent upon the statement made by the appellant and on prosecution by him, would not be of any help to the prosecution as the evidence would clearly indicate that the tribal people like the appellant used to keep bows and arrows in their houses. The seizures of the other two articles could not also, in any manner, further the case of the prosecution. There could be no doubt from the medical evidence that the deceased had died a homicidal death and that it had been caused by M. O. IV. There was, however, no evidence about the ownership of M. 0. IV and as would appear, the investigating agency had not directed the investigation to find out as to who the owner was. ( 4 ) THE Ward Member (P. W. 2), a relation of t he appellant (P. W. 3), the Sarpanch (P. W. 4) and P. W. 8 had testified about an extrajudicial confession said to have been made by the appellant at a meeting of the Panchayat in the village after P. W. I and the Grama Rakshi had been sent to lodge the first information report. The statement of P. W. 8 in his cross-examination would, however, indicate that all the persons who had gone and seen the dead body attended the meeting of the Panchayat. If this was so, P. W. 1 and the Grama Rakshi had also attended the meeting of the Panchayat and the extrajudicial confession had been made in their presence. The statement of P. W. 8 in his cross-examination would, however, indicate that all the persons who had gone and seen the dead body attended the meeting of the Panchayat. If this was so, P. W. 1 and the Grama Rakshi had also attended the meeting of the Panchayat and the extrajudicial confession had been made in their presence. If this extrajudicial confession had been made in the meeting of the Panchayat in the presence of P. W. 1 and the Grama Rakshi, this important fact would not have been conspicuous by its absence in the first Information Report. ( 5 ) IT may be kept in mind that even the investigating agency did not have implicit confidence in P. Ws. 3, 4 and 8 for which steps had been taken in the course of investigation to have their statements recorded under section 164 of the Code of Criminal Procedure. As has been laid down by the Supreme Court in Ram Charan v. State of U. P. 1 and Balak Ram and anr. v. State of U. P. 2 the evidence of witnesses whose statements have been recorded under section 164 is not to be rejected on that ground, but their evidence needs careful scrutiny before acceptance be cause such witnesses feel tied down to their previous statements and a prosecution for perjury could be the price for making a departure from their previous statements. It is, no doubt, true that P. W. 3 was a relation of the appellant, but the extrajudicial confession was said to have been made not only before him, but also in the presence of P. Ws. 2, 4 and 8. There was no material whatsoever to indicate that they were persons of such nature in whom the appellant could have reposed confidence. As has been laid down by the Supreme Court in Rahim Bag v. State of U. P. 3 and Heramba Brahma and anr. v. State of Assam,4 the test for accepting an extrajudicial confession is that there must be reproduction of exact words and there must be evidence to show the reason or motive for making a confession and as to how and why the accused person would repose confidence in the persons selected -before, whom the confessional statement is said to have been made. Judged by these standards, the evidence in the instant case was short of the mark. Judged by these standards, the evidence in the instant case was short of the mark. ( 6 ) IT would be seen from the evidence of the Investigating Officer that he had come to the scene on 26. 10. 1980. There was no material on record that the witnesses, who had testified about the extrajudicial confession in the court, had made any statement to the Investigating Officer soon after his arrival. P. Ws. 2 and 3 had been examined on 27. 10. 1980 and P. W. 4 had been examined on 28. 10. 1980. No evidence had been led as to when P. W. 8, had been examined, but on a reference to the case diary, we notice that he had been examined on 27. 10. 1980. Reference has been made to the case diary not for the purpose of utilizing it as evidence, but as provided in section 172 of the Code of Criminal Procedure. The aforesaid circumstances would show that belated statements had been made by P. Ws. 2 to 4 and. 8 in the course of investigation. No reasonable explanation had been offered as to why immediately after the police officer came to the scene, the statements of these prosecution witnesses on whom the prosecution sought to place reliance had not been recorded 10 the course of investigation. ( 7 ) APART from the aforesaid frailties and suspicious features, we notice that the evidence of the witnesses was not consistent and uniform. P. W. 2 had stated that the appellant had admitted to have caused the death of the deceased by an arrow shot in a meeting of the Panchayat. P. W. 3 had repeated the same statement in his examination-in-chief but he had not stated so in his statement under section 164 wherein he had asserted that on their way back from the spot the appellant, while tending cattle, stated to have caused the death of the deceased by an arrow shot. If this were so, P. W. 1 would have testified about it and so, too, could the Grama Rabhi who had accompanied P. W. 3 and others to the spot and had returned together to the village. The evidence of P. W. 4 that in the meeting of the panchayat, none confessed and the appellant came to the meeting subsequently and confessed his guilt. The evidence of P. W. 4 that in the meeting of the panchayat, none confessed and the appellant came to the meeting subsequently and confessed his guilt. We must record here a disquieting feature which has come to our notice. In his statement under section 164 recorded by a Magistrate, this witness had not stated a word about any meeting of the Panchayat No doubt, the learned defence counsel at the trial had not drawn his attention to this important omission but in such circumstances, it was the duty of the court to have drawn the attention of this witness to the important aspect. After all a court is not a disinterested spectator of the contest between the prosecution and the defence. It should take an intelligent interest in the proceedings and make an earnest endeavour to get at the truth if some important aspect or obscurity is left out either by the prosecution or the defence. However, even if the, aspect is not taken note of because the attention of P. W. 4 had not been drawn to this and no person should be condemned unheard, because of the other suspicious features in the evidence already referred to, we are not prepared to peace any reliance on his testimony. P. W. 8 had claimed to have been present when the accused confessed to have caused the death of the deceased by means of an arrow. He had, however admitted that he had made no such state ment under section 164 before the Magistrate. ( 8 ) FOR the foregoing reasons, we are not at one with the trial court in its view that an extrajudicial confession had been made by the appellant before P. Ws. 2 to 4 and 8. ( 9 ) IT has he en a settled principle of law that an order of conviction can be based on an extrajudicial confession if the evidence of the witnesses in this regard is found to be true and trustworthy and above reproach and this is the view of the Supreme Court in State of U. P. v. M. K. Anthony5. In the instant case, the evidence was not of that character. As a rule of prudence, it would not be safe to act upon the retracted extrajudicial confession without corroboration and there was no corroboration in support of it. In the instant case, the evidence was not of that character. As a rule of prudence, it would not be safe to act upon the retracted extrajudicial confession without corroboration and there was no corroboration in support of it. ( 10 ) WE thus find that the order of conviction cannot be sustained on facts and in law and the appellant was entitled to an acquittal. ( 11 ) IN the result, the appeal succeeds and the same is allowed. The order of conviction recorded against the appellant under section 302 of the Indian Penal Code and the sentence passed against him thereunder are set aside. The appellant be set at, liberty forthwith. Appeal allowed .