Chatterji, J.:— This is a reference under Section 374 of the Cr PC, for confirmation of the sentence of death passed upon Mt. Jagia of village Parori, Police Station Sitamarhi, under S. 302, I.P.C She has also filed an appeal which has been heard along with the reference. The accused was charged with having murdered a boy named Cholhwa Chokra aged about four years on 3rd October 1937, by drowning him in the Lakhandai river which flows on the north of the village Parori. The deceased boy's father Khublal (P.W 1) and the accused Mt. Jagia's husband Lakhan are separated cousins living however in the same compound. About 11 or 12 days before the occurrence, Mt. Jagia was accused by Khublal of having stolen Rs. 3 from his machan. This led to a quarrel between the two families. The matter was referred to a panchayeti. The panchas decided that Lakhan would place Rs. 3 in their presence and Khublal would, if his story of theft was true, take a special oath and pick up the money. This was done and Khublal took the money. Upon this Mt. Jagia felt very much offended and she, according to her own case, abused not only Khublal but the panchas also and, according to the prosecution, abused Khublal only.

2. On the morning of the day of occurrence, the deceased boy after taking food went out of the house and it was supposed by his parents that he went out for playing with other boys as usual. Khublal, the father, who appears to be a day labourer, went to the fields for work and returned home at about 10 in the morning and took his bath and food. Then the parents noticed that the boy had not still returned. Khublal then went to search for him and was told by Mt. Rupiya (P.W 2) whose house is at a distance of about 260 paces to the north of his house that she had seen the accused taking the boy towards the gachi which is further north of her (Mt. Rupiya's) house. Khublal then came back and questioned the accused about the boy. She replied that she had turned the boy back from the gachi. Khublal again went out in search of the boy. He met Sant Mahto (P.W 4) who told him that while lie was sitting in his guava gachi which is to the north of the gachi previously mentioned, he heard the screams of a boy from the river which is to the further north and shortly afterwards he saw the accused coming back from the direction of the river by the side of his guava gachi. Khublal then went towards the river and proceeded along its bank. About the evening he met Janak Mahto (P.W 7) who told him that in the morning he had noticed the body of a boy floating in the river. Khublal could not find any trace of his boy and returned home. He went to the chaukidar who was then absent. The chaukidar subsequently came to his house and after hearing everything from him arrested the accused. He requested the chaukidar to accompany him to the thana. When the chaukidar left for the thana he tied the accused to a cattle peg in the house of one Dhanraj and left her in charge of Babulal (P.W 10). Khublal and the chaukidar reached the thana that night at a very late hour and the first information was lodged by Khublal on the following morning. During the night when the accused was in charge of Babulal, it appears that he untied her hands and then she is said to have confessed her guilt in the following words: Ham, mar deli thik. Hamara jan bache so upaya karo. This statement is said to have been made to Babulal when nobody else was present.

3. The Sub-Inspector came to the village next morning and started investigation. He took the accused to the place from where she said she had sent back the boy. The Sub-Inspector also went to the river bank and found some footprints on the way at different places which appeared to indicate that towards the direction of the river an adult and an infant had gone whereas at the time of return from the river there was only an adult. At a certain place on the bank of the river he marked only two footprints, one of an adult and another of an infant. I should mention here that the evidence shows that morning, before the Sub-Inspector came to the village, there was rain. The river was also in flood. The same day i.e 4th October 1937, in the afternoon, the dead body of the boy was recovered from the river at a place 3½ or 4 miles downstream from the supposed place of occurrence. The body was sent for post mortem examination, but the doctor found no definite signs of drowning and could give no definite opinion regarding the cause of death. On 6th October 1937, the Sub-Inspector submitted a namo kamal charge sheet under S. 302, I.P.C On 7th October 1937, the accused was committed by the Sub-Divisional Magistrate to the Court of Session. Some of the foot-prints which the Sub-Inspector had noticed were preserved, where possible, and those were sent to the foot print expert (P.W 11) for examination. This expert submitted his report after the commitment order had been passed and therefore his evidence was not before the committing Magistrate. He, however, gave evidence before the Sessions Court which went to support the prosecution story. The learned Sessions Judge disagreeing with the assessors has found the accused guilty of murder. The evidence on which the prosecution rests may be divided under two heads: (1) the extra judicial confession said to have been made by the accused to Babulal and (2) the circumstantial evidence. The circumstantial evidence consists of the following facts: (1) On the morning of the day of occurrence, Rupiya P.W 2 and Mt. Phulbatia (P.W 3) whose houses are at a distance of about 260 paces to the north of the house of the accused, saw her taking the boy to the gachi on the north of their houses. (2) Sant Mahto (P.W 4) while sitting in his guava gachi at a short distance from the river heard the screams of a boy from the river and shortly after, wards he saw the accused coming back hurriedly from the direction of the river. (3) Foot-prints were noticed at two different places on the way to the river which would indicate that an adult and an infant had gone towards the river but an adult came back alone from the river.

4. I shall first deal with the confession. It rests entirely on the uncorroborated testimony of Babulal (P.W 10). It appears that the exact words which were said by the accused to him were told by him for the first time before the Sessions Court. The accused denied having made the confession. In dealing with any extra judicial confession, particularly when it is not anywhere recorded, the Court must be very careful and should not act upon it unless it is proved by evidence of the most reliable character. Babulal in his statement before the committing Magistrate said:

I opened one of the hands out of the knot and asked her to speak the truth. She admitted that she had drowned the boy and asked me for advice as to how she would escape from this crime and be saved.

5. In the Sessions Court he says:

I released both the accused's arms from the rope during the night. I did not state before the Magistrate that I released one of her hands from the knot.

6. Further he states:

I did not state before the Sula-Inspector that at first the accused denied about the child, but when confronted with Rupiya admitted.

7. We have looked into the police diary and found that he did make such a statement before the Sub-Inspector and the Sub-Inspector also says the same thing in his evidence. It is thus evident that the witness Babulal changes his statements from time to time on material points, obviously with some purpose. He cannot, therefore, be regarded as a reliable witness. Relying on the sole testimony of such a witness, I cannot hold that the confession has been proved. The confession, therefore, goes out.

8. There are also some legal objections to the admissibility of the confession. It was contended on behalf of the appellant that the alleged confession having been made while the accused was in the custody of the chaukidar could not be admissible under Section 26 of the Evidence Act. Now, two questions arise: first, is the chaukidar a police officer within the meaning of Section 26 of the Evidence Act? Secondly, whether when the confession was made, the accused could be said to be in the custody of the chaukidar, because, as I have already said, the confession is said to have been made not in the presence of the chaukidar, but after he had left for the thana and while she was in charge of Babulal. On the question whether the chaukidar is a police officer within the meaning of Section 26 of the Evidence Act, it was contended by the learned Assistant Government Advocate appearing on behalf of the Crown that nobody can be said to be a police officer unless he is enrolled as a member of the police force, as provided for in the Police Act (Act 5 of 1861). This contention was sought to be supported by the observations of Agarwala, J. in the Full Bench decision of this Court in 12 Pat 46.1 But turning to S. 21 of that Act, which provides that:

Nothing in this Act shall affect any hereditary or other village police officer, unless such officer shall be enrolled as a police officer under this Act. When so enrolled, such officer shall be bound by the provisions of the last preceding section. No hereditary or other village police officer shall be enrolled without his consent and the consent of those who have the right of nomination;

9. It appears that there is a class of village police officers, though they may not be enrolled as police officers under Act 5 of 1861. Then if we turn to Section 27 of the Village Administration Act (Bihar & Orissa Act 3 of 1922) an Act which largely replaces the Village Chaukidari Act of 1870, we find that section which specifies the powers and duties of a chaukidar appears in Part 3 which is under the heading “Village Police”. This puts the matter beyond any doubt. It is obvious that a chaukidar is regarded as a member of the village police and therefore is a village police officer. It cannot be disputed that a village police officer is a police officer and in my opinion certainly he is so within the meaning of Section 26 of the Evidence Act. Here I should make it clear that a chaukidar may not be a police officer within the meaning of the Code of Criminal Procedure which lays down the powers to be exercised by a police officer for the purposes of that Code. In support of my view that a village chaukidar is a police officer within the meaning of Section 26 of the Evidence Act, reference may be made to 26 Cal 5692 and 2 CWN 637.3 In the Full Bench decision of this Court, 12 Pat 46, the question arose whether an Excise Sub-Inspector is a police officer within the meaning of Section 25 of the Evidence Act, but incidentally in the course of the judgments in that case certain observations were made relating to a chaukidar. Fazl Ali, J. however expressed a different view from Agarwala, J. Anyhow the question whether a village chaukidar is a police officer did not arise in that case and any observations on the point made by a single Judge cannot be of any binding authority.

10. Then comes the question whether the accused could be said to be in the custody of the chaukidar when she is said to have made the confession. The point taken was that the chaukidar had already made over the accused to Babulal and while she was under the control not of the chaukidar but of Babulal, a private individual, she could not be said to be in the custody of the chaukidar. Beading the evidence of the chaukidar and also of Babulal, it appears that the former had made over charge of the accused to the latter during the temporary absence of the former. It cannot therefore be said that the chaukidar, although he was not physically in possession of the person of the accused, had not the custody. It seems to me that when once an accused is arrested by a police officer and is in his custody, the mere fact that for some purpose or other he happens to be temporarily absent and during his temporary absence leaves the accused in charge of a private individual does not terminate his custody—the accused shall be deemed to be still in police custody. I am supported in this view by 20 Bom 1654 and AIR 1928 Lah 282.5 There is also an unreported decision of this Court in King Emperor v. Ram badan Koeri alias Komal alias Modan (Death Reference No. 45 of 1935) decided by James and Saunders, JJ. in which it has been held that during the temporary absence of a police officer who arrested an accused and who during his absence made over the accused to somebody else, the accused would not cease to be in the custody of that police officer.

11. It was argued by the learned Assistant Government Advocate that in this particular case the chaukidar had no authority to arrest the accused and the arrest was illegal because it was not a case where he had seen the accused actually committing crime or any of the other conditions under which he could exercise his power of arrest as laid down in Section 27 of the Village Administration Act (3 of 1922) existed. The arrest being illegal, the chaukidar's custody also was illegal, and therefore his illegal custody came to an end as soon as he handed over the accused to Babulal. But reading Section 26 of the Evidence Act, it seems to me that these considerations are quite immaterial. The policy of the Legislature appears to be that any statement in the nature of a confession made by an accused while under the custody and control of a police officer should be excluded from evidence. This is no doubt a wholesome policy and this policy would be defeated if we were to hold that the section is not to apply when the arrest by the police officer has been illegal. Whether the arrest is legal or illegal the mischief which R. 26 is intended to avert remains all the same. In my opinion therefore the alleged confession is inadmissible under Section 26 of the Evidence Act. (His Lordship then examined the circumstantial evidence and proceeded.) On the whole the circumstances taken together may at best create some suspicion against the accused but to my mind they fall far short of affording conclusive proof that she drowned the boy. It is quite possible that the boy went of his own accord to the river and was accidentally drowned without being noticed by the accused at the time of drowning and even if she actually saw him drowning she might not like to make any attempt herself to save him and would naturally come away without raising any cry lest she might be put to trouble by the boy's parents with whom she was on bitter terms of enmity. The learned Sessions Judge seems to think that the conduct of the accused is conclusive on the point. I do not agree with him. He assumes that the accused actually took the boy to the river bank at the spot where the Sub-Inspector noticed only two foot-prints, one of an adult and another of an infant. But where is the legal evidence to justify that assumption? In order to convict an accused of murder, we must be satisfied that the circumstantial evidence is of such a nature that it world be inconsistent with his innocence. In this case the circumstantial evidence is by no means of that character. I am therefore not prepared to hold that the charge has been proved against the accused.

12. I should like to add a few words regarding the evidence of the foot-print expert. The learned Sessions Judge himself does not place much reliance upon it. It should be borne in mind that the Sub-Inspector went to the locality nearly 24 hours after the alleged occurrence, that in the morning there was rain before he arrived there and that the foot-prints were seen on sloughed field. I have read the evidence of the expert and also compared the footprint; and, speaking for myself, I feel the greatest hesitation in accepting the expert's opinion. If we compare the two prints of the left foot not only do they? differ in size but they also differ in regard to the position of the toes. I have therefore left out of consideration the evidence-of the expert while dealing with the circumstantial evidence. In the result I would discharge the reference, set aside the conviction and sentence and acquit the accused.

Dhavle, J.:— I agree. Particular care is necessary in dealing with cases of circumstantial evidence bolstered up by extra judicial confessions. In the present case the first important circumstance found against the accused is that she-was seen taking the boy Cholhwa towards-the river. If this rests on the evidence? of Rupiya and Phalbatia (P.Ws 2 and 3), it must be observed that Phulbatia who speaks of the boy being taken by the accused, admits in cross-examination that the boyywas running when she saw him, and that Rupiya merely speaks-of the boy going with the accused. We have it from the first information that the boy went out of the house to play in the tola after taking food and it is by no means certain on the evidence of Rupiya and Phulbatia that the accused was actually taking the boy northwards when she was seen by these witnesses. Even according to the first information, when the villagers enquired from the accused, she replied that Cholhwa had gone with her when she was going to collect fuel in the orchard, but she made him return from the orchard. The nexfe sentence in the first information, I observe, is that the orchard lies on the bank of the river Lakhandai towards the north of the village, which suggests that she may have had a perfectly innocent business as far as the bank of the river.

13. As regards the return of the accused from the riverside, as my learned brother has pointed out, though Sant Mahto in his evidence speaks of seeing the accused hurrying from the north-east from the direction of the river, the story in the first information is merely that Sant had seen the accused coming back from the direction of the river. Differences on such points as whether the boy was taken by the accused or was merely going with her and whether the accused was hurrying, from the north east or merely coming back from the direction of the river (which ran along the north of the village) are not immaterial in a case where the corrects inference to be drawn depends on minute details such as would not matter very much in a case of direct evidence. The learned Sessions Judge has laid a great deal of stress on the alleged original denial of the accused that she had taken the boy that morning; but this original denial is not to be found either in the first information or in the evidence given by Khublal Koeri in his examination-in-chief. It is curious that it was only in answer to a question in cross-examination that Khublal said that it was correct that when he first questioned the accused she denied all knowledge, but when others questioned her, she said that she had sent the boy back from the gachi. Even this statement made by the complainant Khublal in cross-examination does not, moreover, seem to be altogether supported by the evidence. Khakhan Mahto, who is mentioned in the rust information as among the people who were present when the accused was questioned, speaks of having been told by Khublal that the accused had denied taking away his son, but that is not Khublal's story at all. Khakhan also saya that when he questioned the accused, “at first she denied but then said she had taken the boy but had sent him back from the gachi.” The omission of this denial from the first information and the conflict of evidence on the point makes it impossible to attach any sensible weight to it. As to Babulal, the discrepancies in his evidence do not appear to be properly explicable on the theory of a confession.

14. We have ascertained, as my learned brother has stated, that he did mention to the Sub-Inspector notwithstanding his denial in cross-examination that “at first the accused denied about the child, but when confronted with Rupiya admitted.” It is true that Babulal is not specifically named in the first information or in the other evidence as present on the occasion, but his denial in cross-examination of the statement he did make to the Sub-Inspector can only be due to a desire, I think, to minimize his connexion with the case as far as possible. He spoke in the commitment proceedings of releasing one of the hands of the accused and asking her to speak the truth, whereupon she admitted that she had drowned the boy and “asked me for advice as to how she would escape from the crime and be saved.” In his examination-in-chief in the Court of Session he does not say anything about asking her “to speak the truth,” bub says that she made the confession when she was untied, and in his cross-examination he claims to have released both her arms from the rope on that occasion, denying that he had stated before the Magistrate that he had released only one of her hands from the knot. I cannot help regarding the contradictions or variations made by the witness in the Court of Session as made with a purpose. They must make the witness unreliable, and in any case, as Maclean, C.J observed in 9 CWN 4746 little, if any, importance should be attached to an extra judicial confession often found to bolster up the circumstantial evidence on which a case depends. Little importance was apparently attached by the police and the Magistrate to the confession spoken to by Babulal, for, they did not even take the trouble to note the exact words of the confession as given by Babulal. No witness is said to have been present when the accused confessed to Babulal, who moreover claims to have informed Khakhan of it (and apparently Khakhan alone) at a time which conflicts with Khakhan's story before the Magistrate. But a far greater objection to the confession arises on Sections 24 and 26 of the Evidence Act. The learned Sessions Judge says about S. 24 that he can find nothing in Babulal's evidence to show that any inducement, threat or promise was offered to the accused. But the strong indications afforded by the circumstances must not be left out of account: the accused had been tied by both hands to a cattle peg and was feeling pain and wanted to sleep: she therefore asked her custodian to release her; he then released one of her hands and asked her to speak the truth: and this was followed by the confession. Though it is not shown that Babulal expressly offered any inducement, threat or promise, the accused must, in the circumstances, have plainly been afraid of being tied up by both hands again before she confessed. It is true that this will not by itself be within the letter of Section 24 of the Evidence Act, as even a promise to strike off a prisoner's handcuffs, having no reference to the charge against him, has been held not to affect the admissibility of a confession obtained thereby. But even so, the confession could not be regarded as voluntary and could convey but little weight. Then there is Section 26 of the Evidence Act which provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The learned Sessions Judge doubts if the section can apply if as he finds the arrest of the accused by the chaukidar and her custody were both illegal: but the section cannot be read as confined to the legal custody of a police officer, for, it would be surprising if confessions in legal police custody were excluded while confessions in police custody which could not be justified were outside that bar. The learned Sessions Judge did not apparently doubt that a chaukidar is a police officer. It is true that in 12 Pat 46, Agarwala, J. held that no person is a police officer unless he is enrolled in or appointed a member of, the police force or is declared by statute to be a member of that force. This however does Dot seem to have been the view of the majority of the Full Bench that decided the case, and Fazl Ali, J. observed that, the term police officer has not been defined anywhere but that there can be no doubt that Section 1 of the Police Act is not exhaustive and that the term is wide enough to include not only the persons enrolled under the Police Act but some others. Agarwala, J. referred to the decision in 26 Cal 569, in which it was held that a confession made to a chaukidar is excluded by S. 25 (which excludes confession made to police officers) and observed that in that decision no reference was made to the earlier decision in 2 CWN 71,7 that S. 25 does not exclude a confession made to a chaukidar.

15. But there is another decision, 2 CWN 637, to which my learned brother has referred in which O'Kinealy and Henderson, JJ. expressed their dissent from the view taken in 2 CWN 71 and referred to Act 1 of 1892 amending the Ghaukidari Act, and Regn. 20 of 1817, in support of the view that a chaukidar is a police officer. The Village Administration Act (B. & O. Act 3 of 1922) which applies to the area with which we are concerned and largely replaces the Chaukidari Act of 1870 deals in Part 3 with “Village Police” and it is in this part that we find S. 27 laying down the powers and duties of dafadars and chaukidars. This is the latest indication that we have been able to find of the light in which the Legislature regards the village chaukidar. A chaukidar's powers as a village police officer are, of course, to be found in the Chaukidari Act or the Village Administration Act, and not in the general provisions of the Code of Criminal Procedure; but Sections 25 and 26 of the Evidence Act speak of a police officer without reference to any particular Act, nor is there anything in the decision of the Full Bench in 12 Pat 46 which compels us to hold that a chaukidar is not a police officer for the purpose of these sections of the Evidence Act, the point decided in that case being that an excise officer is not a police officer within the meaning of Section 25 of the Evidence Act, even though under the Dangerous Drugs Act he had power to arrest, search and in vestigate. The learned Sessions Judge is right in holding that the woman's arrest by the chaukidar was illegal, so was her custody by him. But, as I have already pointed out, the illegality does not affect the operation of S. 26. Nor can it be rightly said that the chaukidar's custody was at an end when the accused was made over to Babulal. His custody could only terminate in one of two ways, viz. either by his releasing her or by his handing her over to the regular Police or a Magistrate. It was not terminated when he made the woman over to Babulal, for there cannot be any doubt that on his return he expected Babulal to restore the custody of the woman to him.

16. There is also authority, as my learned brother has shown, for the view that police custody does not cease to be so merely on account of the temporary absence of the police officer. The confession should therefore have been excluded, and could in any case carry but little weight, as I have already shown. The other circumstances relied upon by the learned Sessions Judge, as already shown, appear to have been overrated at point after point and to fall short of excluding a reasonable possibility that the boy was accidentally drowned if indeed he did go with the accused to the river. She might quite easily have been afraid to speak after the accident and it is impossible to say with confidence that she would have called out or tried to get help in all the possible circumstances of an accident. Her failure would, in my opinion, be far too slender a foundation for a conviction in what little is known of the circumstances.

K.S/R.K

17. Conviction set aside.