JUDGMENT : S.K. Mishra, J. - In this case of uxoricide, Prabhakar Baitha has been convicted, by Order Dated 22.12.1998, by the Learned Sessions Judge, Mayurbhanj, Baripada in S.T. No. 118 of 1997 for the offence u/s 302 Indian Penal Code for having committed murder of his wife & sentenced to undergo imprisonment for life. Such conviction & sentence have been challenged in this appeal. 2. Bereft of unnecessary details, the case of the prosecution in short, is that the convict-Appellant & his wife, i.e., deceased Saibani Baitha, were residing in village Kuliolab. The accused alleged to have suspected the character of the deceased for which there was ill-feeling between them. It is further alleged that the deceased was being ill-treated both physically & mentally by the accused. Because of such ill-treatment, the daughter of the deceased & the accused, namely, Mamata used to stay in her matrimonial uncle's house during the relevant period. It is further alleged that in the early hours of the morning of 17.7.1996, the accused left his house to attend the call of nature. After attending the call of nature, he returned to his house. Informant Sachidananda Baitha who happens to be a nephew of the accused, at about 7.30 A.M. on 17.7.1996, was informed by Binu, the younger brother of the accused Pravakar, that Prabhakar has committed murder of Saibani by means of a 'Kuradi' (axe). The informant went to the house of the accused & found that the deceased was lying near the door of her house with bleeding injuries on her head. He also noticed bleeding from the mouth & nose of the deceased. The informant searched for the accused. But he had already absconded. Then the informant lodged a written FIR before the ASI, Nuduhida Bit House. The ASI of the said Bit house made a station diary entry & took up preliminary investigation. Thereafter the ASI transmitted the case to the OIC Kaptipada P.S. over VHF & took up investigation of the case. On that juncture, the Grama Rakshi-Abhiram Sahoo appeared before him at the Bit House at Nuduhida with the accused Prabhakar Baitha. Thereafter the 10 visited the spot. He collected the blood soaked sample earth from the spot, examined witnesses, held inquest over the dead body of the deceased, dispatched the dead body of the deceased for post-mortem examination & arrested the accused. Thereafter the 10 visited the spot. He collected the blood soaked sample earth from the spot, examined witnesses, held inquest over the dead body of the deceased, dispatched the dead body of the deceased for post-mortem examination & arrested the accused. He also seized the weapon of offence. On the next day, he forwarded the accused to the Court. After completion of investigation, he submitted charge-sheet against the accused u/s 302 Indian Penal Code. The accused took the plea of denial & pleaded that he has been falsely roped in this case by his cousin Dibakar. 3. In course of trial, the prosecution examined nine witnesses & relied upon several documents like post-mortem report, inquest report, seizure list, chemical examiners report etc. P.W. 5 Abhiram Sahoo is the Grama Rakshi of the village before whom accused confessed to have committed murder of his wife by means of a Kuradi in his house. P.W. 6 Bimbadhar Behera is another witness to the extra-judicial confession made by the accused before the Grama Rakshi. P.W. 1 the informant-Sachidananda Baitha, P.W. 2 Upendra Baitha & P.W. 3 Dibakar Baitha are the brothers of the accused whereas P.W. 4 Mamata Baitha is his daughter. They have been examined to prove the motive of the crime, i.e., allegation that the accused was suspecting the character of the deceased & was always ill-treating her. P.W. 7, Dr. Radhashyam Mohanty conducted autopsy on the dead body of the deceased. P.W. 9, Surat Khuntia, ASI & P.W. 8, Biranjan Dwivedi are the investigating officers of the case. 4. The defence neither examined any witness nor led any document into evidence in support of his defence plea. 5. The Learned lower Court on analysis of the evidence led on behalf of the prosecution, held that though there are no eye-witness to this occurrence, the prosecution has amply proved its case against the accused on the basis of the extra-judicial confession made by the accused which are supported by the medical evidence & all other objective circumstances like seizure of blood stained cloth, blood stained earth from the spot etc. Learned Sessions Judge finding that the prosecution has established its case beyond all reasonable doubt, convicted the accused u/s 302 Indian Penal Code & sentenced him to undergo rigorous (sic) imprisonment for life. Such judgment of conviction & the order of sentence are challenged in this Jail Criminal Appeal. 6. Learned Sessions Judge finding that the prosecution has established its case beyond all reasonable doubt, convicted the accused u/s 302 Indian Penal Code & sentenced him to undergo rigorous (sic) imprisonment for life. Such judgment of conviction & the order of sentence are challenged in this Jail Criminal Appeal. 6. The Learned Counsel for the Appellant submitted in course of argument that the prosecution has failed to prove its case beyond all reasonable doubt on the following grounds: i. the extra-judicial confession made before the Grama Rakshi, who is a police officer, is inadmissible in law as it is hit by Section 25 of the Indian Evidence Act, 1872; alternatively such extra-judicial confession does not inspire confidence of the Court & the Learned Sessions Judge should not have relied upon such extra-judicial confession; ii. prosecution case has to be viewed with suspicion because the motive is not proved in this case; & iii. it is not a case of a culpable homicide amounting to murder & at best it could be a case u/s 304 Second Part Indian Penal Code. 7. Learned Addl. Government Advocate on the other hand supported the findings recorded by the Learned Trial Court & submitted that the lower Court has correctly found the accused to be guilty & there is no reason to interfere with the impugned Judgment. 8. It is not disputed that the deceased died due to the injuries inflicted to her head which were possible by means of axe & the death of the deceased is homicidal. 9. Learned Sessions Judge while dealing with the contention that confession made before the Grama Rakshi is admissible as evidence, has held as follows: A contention was raised by the Learned Counsel for the defence that the so called confession before P.W. 5, Grama Rakshi is inadmissible in law for which the same is not to be acted upon. The Learned Counsel has laid emphasis in this respect on the decision reported in Madan ' Undu Barik Vs. The State. It has been held in a Division Bench decision of our own High Court reported in 1992 (5) OCR 636 that the Grama Rakshi is not a Police Officer & the confession before him does not attract Section 25 of the Evidence Act. The State. It has been held in a Division Bench decision of our own High Court reported in 1992 (5) OCR 636 that the Grama Rakshi is not a Police Officer & the confession before him does not attract Section 25 of the Evidence Act. In the said decision, it has been held that relying on the decision of the Apex Court in the case of Raj Kumar Karwal Vs. Union of India and others, that the earlier view of Madan ' Undu Barik Vs. The State, does not lay down the correct position of law. So with due respect to the decision in the case of Madan ' Undu's case (supra), I am to rely on the decision reported in (1992) 5 OCR 636 (supra) in which the view expressed by the Apex Court in Raj Kumar Karwal Vs. Union of India and others, has been followed. Accordingly I am inclined to hold that a Grama Rakshi, being not a Police Officer, a confession before him does not attract the operation of Section 25 of the Evidence Act. That being the position of law, I find myself in difficulty to accept the contention raised by the Learned Counsel for the defence. 10. The moot question that arises at this stage is whether the Grama Rakshi is a police officer & if the confession made before him, is inadmissible, being hit by Section 25 of the Indian Evidence Act, 1872. Section 25 of the Evidence Act provides: 25. Confession to police officer not to be proved- No confession made to a Police Officer shall be proved against a person accused of any offence. It is clear from the above quoted provision that no confessional statement made to a Police Officer or in the presence of the Police Officer is admissible in evidence. This is so, because of the possibility of torture or extortion to extract such statement by police. 11. The question of admissibility or otherwise of the confessional statement made before a Grama Rakshi arose before this Court in the case of Sanatan Bindhani Vs. The State. Again the question came before this Court in Bhaja Pradhan Vs. State of Orissa. There again the principle of deciding who should be treated as a Police Officer was dealt with. In the case of Madan ' Undu Barik Vs. The State. Again the question came before this Court in Bhaja Pradhan Vs. State of Orissa. There again the principle of deciding who should be treated as a Police Officer was dealt with. In the case of Madan ' Undu Barik Vs. The State a Division Bench of this Court decided as follows: "Police Officer" has not been defined in the Evidence Act. Judicial opinion is almost unanimous that the phrase "Police Officer" should not be confined to Police Officers in terms of Section 1 of the Police Act but should be given liberal construction. The test for determining whether such a person is a "Police Officer" for the purpose of Section 25 of the Evidence Act would be, whether the powers of a Police Officer which are conferred on him, or which are exercisable by him because he is deemed to be an officer in charge of a police station established a direct or substantial relationship with the prohibition enacted by Section 25 that is recording of a confession. In other words, the test would be whether the powers are such as would be termed to facilitate the obtaining by him of a confession from a suspect or a delinquent if they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to whether the other powers he enjoys. Tested by the guidelines indicated & keeping in view the fact that the powers of a Grama Rakshi in terms of Orissa Grama Rakshi Act & the Rules made thereunder are analogous to that of a Choukidar. A Grama Rakshi is indeed a substitute of a Choukidar in the relevant field & for the reason that a Choukidar has been found to be a Police Officer, a Grama Rakshi functioning under the Orissa Act must also be held to be a Police Officer. The Grama Rakshi being a Police Officer, the confession made to P. Ws. 15, 16 & 21 must be held to be inadmissible in evidence. 12. The question was again examined by a Division Bench of this Court in Khageswar Khatua v. State 1992 (5) OCR 636, wherein relying on the ratio from Raj Kumar Karwal Vs. The Grama Rakshi being a Police Officer, the confession made to P. Ws. 15, 16 & 21 must be held to be inadmissible in evidence. 12. The question was again examined by a Division Bench of this Court in Khageswar Khatua v. State 1992 (5) OCR 636, wherein relying on the ratio from Raj Kumar Karwal Vs. Union of India and others, it was held that a Grama Rakshi is not a Police Officer &, therefore, confession before him does not attract operation of Section 25 of this Act. Relying on the ratio laid down in Madan ' Undu Barik's (supra) case a division bench of this Court in Boisakhu Kollar Vs. State of Orissa, held that extra judicial confession made before Grama Rakshi is not admissible in evidence. This contradictory views by Division Bench was noted by this Court in Gurawa Naik v. State of Orissa 2009 (44) OCR 303 . The Division Bench then referred this case to a larger Bench for examining whether a Grama Rakshi is a Police Officer or not. Such reference is pending for consideration. 13. Steering clear of the aforesaid controversy this case can also be decided on the probative value of the evidence of P.W. 5 Abhiram Sahoo, Grama Rakshi. If his evidence does not inspire confidence of the Court then the case can be decided with the finding that prosecution has failed to prove its case. On the other hand if such evidence of extra judicial confession inspires confidence then the case has to be referred to the larger bench. Here keeping in view the distinction between 'admissibility' & 'probative value' of evidence, we examine the probative value of the evidence first. The question of admissibility of evidence is distinct from its efficacy, reliability & acceptability. It is proper to examine the Gram Rakshi's statement at this juncture to test its efficacy, reliability & acceptability. In the examination in chief he has stated that while he was near his house, the accused came running to him & fell flat on his feet & told him that he committed a mistake & confessed to have murdered his wife by a 'Kuradi' in his (accused's) house. When the witness asked the accused why he murdered his wife, the accused told that he suspected her character for which he killed her. When the witness asked the accused why he murdered his wife, the accused told that he suspected her character for which he killed her. P.W. 5 further states that when the accused was in his house, one Bimbadhar Behera (PW 6), Khatia Palei & Gura Behera of their village came there. Those persons also asked the accused as to why he murdered the deceased. Before them the accused also confessed to have committed murder of the deceased in the presence of P.W. 5. In the cross-examination he has stated as follows: 2. I had no well acquaintance with the accused prior to the occurrence. Prior to the occurrence, he did not tell me his domestic & private affairs on any occasion. I also did not tell my private problems & domestic affairs to the accused at any point of time. Prior to the occurrence, I had no occasion to believe him nor he had any occasion to believe me. I cannot tell the reason of his disclosure statement of committing murder of his wife before me. xx xx 14. It is trite that the extra-judicial confession can be relied upon to convict a person but the Court must be satisfied about the voluntariness of the extra-judicial confession. It must be satisfied that such confession was made voluntarily; it should be clear & inspire the confidence of the Court. To test if such extra-judicial confession can be relied upon, it is to seen the position/relations of the person before whom the confession is alleged to be made vis-a-vis the accused. If there is reason to believe accused relied on him because of their relationship with the hope that the person before whom the confession has been made can help him in some way then such extra-judicial confession becomes all the more reliable. In a recent decision, i.e., State of Andhra Pradesh v. S. Swarnalatha (2009) 44 OCR (SC) 349 Hon'ble Apex Court while deciding on the probative value of the extra-judicial confession made before a person with whom the accused had no cordial relation, did not accept the retracted extra-judicial confession. In Kulwinder Singh v. State of Punjab (2006) 12 SCC 538 , at page 544: the Supreme Court held that extra judicial confession made by the accused before PW 7 must be judged having regard to the entire factual matrix in that case. In Kulwinder Singh v. State of Punjab (2006) 12 SCC 538 , at page 544: the Supreme Court held that extra judicial confession made by the accused before PW 7 must be judged having regard to the entire factual matrix in that case. P.W.7 was the Vice-President of a cooperative society. The accused persons were known to him for about four years. The reason for making confession was that when Rajbir Singh had assaulted Nardev Singh as a result whereof his arm was fractured, his intervention was sought for. They had gone to him so that he could exercise his influence over the police. As he asked them to produce the Appellant & the said Baldev Singh, they must have been persuaded by the other accused persons to go to him for similar purpose particularly when two of the accused persons viz. Nirpal Singh & Nardev Singh had already been arrested by that time. All the accused by that time came to know that their involvement in the crime is known to the investigating officer. The Supreme Court further ruled that the evidentiary value of an extra-judicial confession must be judged in the fact situation obtaining in each case. It would depend not only on the nature of the circumstances but also the time when the confession had been made & the credibility of the witness who testifies thereto. 15. But when the confession is made to a person with whom an accused has hardly any relationship as in the present case, it is difficult to rely on such retracted extra-judicial confession. 16. It is seen that P.W. 6 also speak about the extra-judicial confession made before P.W.5. He has stated that while he was talking with others at about 8.00 A.M. in the village road, the accused was found going to the Grama Rakshi who was standing at a distance from that witness & told about the murder of the deceased. When the Grama Rakshi asked him, he told that he committed murder of his wife & requested Grama Rakshi to take him to the P.S. At that time the accused told the Grama Rakshi he suspected the character of his wife &, he murdered her. In the cross-examination he has stated; "I did not ask anything to the accused". When the Grama Rakshi asked him, he told that he committed murder of his wife & requested Grama Rakshi to take him to the P.S. At that time the accused told the Grama Rakshi he suspected the character of his wife &, he murdered her. In the cross-examination he has stated; "I did not ask anything to the accused". Such statement of P.W. 6 runs contrary to the statement of P.W.5 inasmuch as P.W. 5 has stated that Bimbadhar Behera (P.W. 6) and Ors. came there. He also stated that those persons also asked as to why he murdered the accused was in the house of the Grama Rakshi whereas P.W. 6 did not speak about his arriving there at the house of the Grama Rakshi with others & he has categorically denied to have asked anything to the accused. So keeping in view the totality of the evidence on record, this Court finds that the evidence of P. Ws. 5 & 6 on the extra-judicial confession is not trustworthy &, therefore, the prosecution has failed to prove its case beyond all reasonable doubt. 17. In view of such finding, it is not necessary to go into the other contentions raised by the Learned Counsel for the Appellant. In the result, the appeal is allowed. Conviction & sentence passed by the lower Court are hereby set aside. The accused be set at liberty forthwith if his detention in jail is not necessary in any other case. P.K. Tripathy, J. 18. I agree. Final Result : Allowed