JUDGMENT N. G. Chudhuri, J.: Upon their conviction in Sessions trial No. 1 of March, 1980 for offences under S. 302/34 and 120B IPC and imposition of sentence of life imprisonment for the first offence and R.I. for 10 years for the second offence by the Additional Sessions Judge, 3rd Court, Murshidabad, the two appellants have filed the present appeal. Since the filing of the appeal the appellants are in jail. Along with the appellants one Jagannath Ghosh was charged under S. 302 with S. 34 IPC and under S. 120B IPC; he has been acquitted. The appellants themselves were also charged under S. 364 IPC but they have been found not guilty of the said charge and an order of acquittal has been recorded on that count. The prosecution case may be narrated as follows:–– 2. On 4.8.76 at 11-40 hrs. a decomposed skull of a man was found placed on a torn yellow full sleeve terelyne shirt in mouja Kharjuna under P. S. Burdwan and seized by police under Ext. 5A. Only two hours prior thereto at 9-45 hrs. on 4.8.76 an FIR was lodged with the aforesaid thana by P.W.1 Dhiren Pal. In the said FIR on which Burdwan P. S. Case No. 3 dated 14.7.76 was started, the informant a resident of village Kurcha within the local limits of the above thana alleged that on 14.7.76. Wednesday his brother Bejoy Pal left his dwelling house in the said village in the company of Anath Das (One of the appellants). Anath had given out that to get his maternal uncle released from hazat through the good offices of Bejoy’s brother-in-law Bejoy’s presence at Kandi was urgently required. Bejoy initially expressed his reluctance to go as paddy seeds were to be sown, but Anath helped Bejoy in the matter of sowing of seeds and persuaded Bejoy to accede to his request. Bejoy and Anath left for Kandi at 8-30 A.M. taking some scanty refreshments in the house of Bejoy. Even after Sunday 18.7.76 Bejoy did not come back. His friends and relations made anxious enquiries and searches; and came to know that Bejoy was wearing one dhoti with violet border and a full sleeve terylene shirt of light yellow colour while he left his house. Even after Sunday 18.7.76 Bejoy did not come back. His friends and relations made anxious enquiries and searches; and came to know that Bejoy was wearing one dhoti with violet border and a full sleeve terylene shirt of light yellow colour while he left his house. It was ascertained that he boarded a bus for Kandi at Sonai Bus stand to let down at Nima Dak Bungalow for the purpose of taking refreshments in the shop of Nakfura; and they were seen there by Gadai P.W.10. It was alleged that Dhiren the other appellant was a relation of Anath, reached the spot and the three, namely, Dhiren, Anath and Bejoy, started for Kandi by bus. It was alleged that they were seen in the bus by Narayan Ghosh (P.W.8) and in answer to his question Anath and Dhiren disclosed that they were going to Kandi with Bijoy in connection with some business of theirs. After reaching Kandi, Bejoy had some talks with his sister's husband Sanjoy Ghosh (P.W.14) when Dhiren and Anath were waiting under a tree standing a little away. From there they proceeded towards Kandi Court. Bejoy thereafter became untraceable. At about 11 or 12 O'clock on 3.8.76 the informant learnt from some people that skull of a dead man was lying by the side of a canal in village Kharjuna. The informant went to the spot and saw the decomposed skull, the terylene shirt and dhoti of the description earlier mentioned. He alleged that Jagannath Ghosh, the acquitted accused had threatened Bejoy, so the informant believed that Anath and Dhiren pursuant to a conspiracy with Jagannath and Balai Ghosh abducted Bejoy on a false pretext to facilitate his murder. On the basis of the above information investigation started and subsequently on the basis of order of commitment the Sessions trial aforesaid was held. In the trial, as many as 19 witnesses were examined on behalf of the prosecution. 3. Mr. Balai Ch. Roy, the learned advocate assisted by Mr. Dostoor appearing on behalf of the appellants, vigorously challenges the finding of guilt arrived at by the learned Sessions Judge and the judgment of conviction and sentence. Mr. Roy contends that guilt of the appellants was not proved beyond reasonable doubt and the learned Sessions Judge was wrongly influenced by so called confessions made by the accused under police pressure which were retracted at the time of trial. Mr. Roy contends that guilt of the appellants was not proved beyond reasonable doubt and the learned Sessions Judge was wrongly influenced by so called confessions made by the accused under police pressure which were retracted at the time of trial. Mr. Roy argues that on a close and careful scrutiny of the evidence the learned trial Judge should have arrived at a finding of not guilty, Mr. Samir Chatterjee, the learned advocate representing the State Government respondent makes valiant efforts to support the judgment of conviction. 4. The important features of this case may be noted. The FIR Ext I, on the basis of which investigation started, was lodged on 4.8.76. It was alleged that the victim Bejoy Pal was last seen alive nearly three weeks earlier on 14.7.76 corresponding to 30th Ashar 1383 B. S.; with appellant Anath he left his residence. The FIR was lodged after the informant had seen a human skull. It reveals that the informant did not recognise or identify the skull as that of his brother Bejoy from an inspection thereof, but be guessed that the skull was of his brother Bejoy as he found dhoti and terylene shirt of his brother nearby. In the FIR it is alleged that earlier on 21.7.76 an information was lodged with the thana to the effect that Bejoy was missing, but no paper has been produced from the thana in support of that assertion. The important points, therefore, are that although Bejoy was missing from 14.7.76 no report was made to the thana before 4.8.76. Further the informant could not assert that the skull was of his brother Bejoy. 5. The second important feature of this case is that there is no direct evidence in the shape of eye-witnesses of the murder. As a matter of fact the dead body of Bejoy was not seen or identified by anybody. The skull and some bones were sent to the doctor for post-mortem examination. The doctor P.W.12 deposed that the skull and the bones referred to, were human bones and skull, but the injury could not be ascertained. The time of death of the deceased the age and sex of the person whose skull it was could not be discovered. Thus it was not proved beyond doubt that Bejoy Pal is dead and the skull was his. The time of death of the deceased the age and sex of the person whose skull it was could not be discovered. Thus it was not proved beyond doubt that Bejoy Pal is dead and the skull was his. The I. O. examined as P.W.16 deposed that Kalyani wife of Bejoy had stated before him in course of investigation that her husband went to Kandi to ascertain the date of hearing of his case. Although he was an officer of the local thana he could not say if Bejoy was under police surveillance or if several sessions cases were pending against him. 6. The learned Additional Sessions Judge has based his judgment of conviction on the confessions of the two appellants recorded on 10.9.76 under S. 164 Cr.P.C. by a Magistrate (P.W.19) although the confessions separately almost in similar terms. A confession, it is undisputed, in order to merit reliance must satisfy two tests namely, (1) it must be voluntary and (2) must also be truthful. Vide Shankari v. State of Rajasthan, AIR 1978 SC 1248 . Two factors motivate confessions, namely, repentance and an anxiety to shorten the period of detention as a prisoner notwithstanding S. 428 Cr.P.C. and hope for light punishment. In the present case the appellants did not plead guilty at the time of trial and from their examination under S. 313 Cr.P.C. it is seen they repudiated the confessions. The retraction, even though late, clearly indicates that confessions were not spontaneous and voluntary. Let us see therefore, the circumstances in which the confessions were made. In point of fact the I. O. deposed that appellant Anath Das and Dhiren Das surrendered in Court and he prayed for police remand and his prayer being allowed he took the two appellants in custody and kept them in such condition for seven days. Thereafter he produced them before the court for recording their confessional statements. He deposed that Kandi Sub-jail is within a distance of 200-300 yds. from Kandi Criminal Court and Kandi Criminal Court and Kandi police lock up are almost adjacent to each other; whenever an under-trial prisoner is produced in court he is first taken to police lock up and from there he is taken to the Court; there are many police officers attached to the lock up. from Kandi Criminal Court and Kandi Criminal Court and Kandi police lock up are almost adjacent to each other; whenever an under-trial prisoner is produced in court he is first taken to police lock up and from there he is taken to the Court; there are many police officers attached to the lock up. This evidence shows that the confessing accused were not taken out of the influence of police before they made their confessions P.W.19 the Magistrate recording the confession again deposed that the accused were produced before him by the GRO attached to SDJM's Court Kandi and the GRO is a Police Officer. Both the accused in course of their statements under S. 313 complained of police pressure on them before the confessions were recorded. The complaint cannot be lightly brushed aside. The deposition of Dibarkar Ghosh (P.W.13). Headmaster of the local school reveals how highhanded the police was at the time of investigation with him as a witness. Considering all above we think that the confessions recorded were not voluntary. Next we come to the test of truthfulness of the confessions. The truthfulness is not judged from the felicity of expressions used in the confession or the emotional favour, rather the test is if the contents of the confessions agree with the evidence collected. Reading the confessions marked ext. 8 and 9 we find that Anath is the brother-in-law of the other appellant Dhiren, Anath confessed that on 29th Ashar 1383 B S that is to say on the day immediately preceding the date of occurrence he and Bejoy were discussing a plan to go to Kandi next day to witness a film and to go to Ruigram on their way back to visit Bejoy's brother. He confessed further that while they were engaged in the discussion Jagannath Ghosh passed by the road on a cycle and summoned him in the evening. He desired Anath to bring Bejoy from cinema hall to the road near Kuli so that Jagannath and Balai could murder Bejoy. There is no indication in Anath's confession that Jagannath had prior discussion with Dhiren or that Dhiren would assist Anath. He stated further that pursuant to his direction after initial hesitation he took Bejoy to the cinema hall and immediately before that he met Dhiren Das to be informed that Jagannath had given him a similar direction. There is no indication in Anath's confession that Jagannath had prior discussion with Dhiren or that Dhiren would assist Anath. He stated further that pursuant to his direction after initial hesitation he took Bejoy to the cinema hall and immediately before that he met Dhiren Das to be informed that Jagannath had given him a similar direction. The first stumbling block to our accepting the confessions as truthful is that there is no indication in either of the confessions where and when Dhiren met Anath and Bejoy or if the meeting was accidental or preplanned Dhiren on the other hand stated in course of his confession that under the directions of Jagannath, Anath and he himself brought Bejoy to witness the film show. There is thus some discrepancy between the two confessions. Apart from that, it is the definite case of P.W.1 in the FIR and deposition of P.W.2 Kalyani that only Anath was with Bejoy when he left village Kurcha, in other words Dhiren was not with them. If Anath and Bejoy were planning to go to Kandi to witness a film show there was no reason to suppress that from P.W.1 who deposed that in answer to his enquiry Anath gave out that for getting his maternal uncle released on bail Bejoy’s presence at Kandi was necessary. Bejoy’s brother-in-law Sanjoy was working as clerk of a lawyer and through his help bail could be easily obtained. Ajit Pal P.W.9 deposed that while coming back from his father-in-law’s house by bus he got down at Sonai and saw Bejoy and Anath boarding the identical bus giving out that they were going to Kandi. Anath and Bejoy are alleged to have got down from the bus midway for refreshment in the shop of Nakfura Moira situate near Nima Dak Bungalow. This does not fit well with Anath’s alleged mission. Sanjoy Ghosh deposed as P.W.14 that on 14.7.76 at about 12, 12-30 P.M. Bejoy Pal accompanied by Anath Das and Dhiren Das came to him and making enquiries he learnt that they were going together in connection with some work. This visit is not referred to in the confessions made by any of the appellants. This omission suggests that the confessions recorded were not truthful. This visit is not referred to in the confessions made by any of the appellants. This omission suggests that the confessions recorded were not truthful. Anath in his confession stated specifically that Balai and Jagannath conjointly killed Bejoy with a dao with wooden handle in the presence of Dhiren and himself (Anath) and after that Balai threw away the head of Bejoy tying it up with Bejoy’s garments in the nearby canal and Jagannath threw way the dao in a nearby jute field. Dhiren, however, did not state in course of his confession that Balai and Jagannath killed Bejoy with any weapon like dao with wooden handle; he simply stated that they killed Bejoy. He of course stated that Jagannath threw away a dao with the wooden handle in a jute field. This omission in the confessional statement of Dhiren amounts to a discrepancy in so far aw the confessional statement of Anath is concerned. We would hve ignored this if the police had searched out the dao with the wooden handle and produced the same to carry conviction that the confessions were truthful. There is one other reason to throw away the confessions as untruthful and unreliable. P.W.1 the brother of Bejoy deposed that when he was searching for his missing brother Bejoy he received two letters written by Bejoy. P.W.16 a police officer deposed that he seized these letters and prepared seizure list exts. marked 6 on 15.9.76. The letters with dates written on post cards were not produced before the court. Ext. 6 shows that the first post card is dated 9th Shravan and was addressed to Dhiren Ghosh and the other post card was the same date and was addressed to Abani Ghosh P.W.4 father-in-law- of Bejoy. The seizure list Ext. 6 clearly states that writer letters on 9th Shravana, the confessional statements of the two appellants to the effect that he was killed on 30th Ashar cannot be true. We thus reach the conclusion that the confessions of the two appellants recorded under S. 164 Cr.P.C. failed in the dual tests of voluntariness and truthfulness. They were thus unfit for reliance. We have already indicted that there is no clinching evidence that the skull and bones seized by the police under Exts. 5 and 5A were of Bejoy. 7. We have another point to discuss. They were thus unfit for reliance. We have already indicted that there is no clinching evidence that the skull and bones seized by the police under Exts. 5 and 5A were of Bejoy. 7. We have another point to discuss. The informant and others guessed or inferred that the bones and the skull were of Bejoy because close to the skull they found a yellow terylene shirt and a violet bordered dhoti wearing which Bejoy is alleged to have left his home on 14.7.76. Although P.W. 1, 2 and 9 close relations of Bejoy deposed that Bejoy went out that morning wearing a violet bordered dhoti and yellow terylene full sleeve shirt yet no particular reason is disclosed by them for their remembering the dress of Bejoy. If they had lodged a missing report of Bejoy with the thana with the description of his dress as deposed to prior to lodging the FIR we would have been convinced that there was no reason to disbelieve the witnesses. We find that after the skull with remnants of dress as aforesaid discovered, the informant remembered the dress worn by Bejoy three weeks back. It is highly probable that they gave out that Bejoy went out wearing a violet bordered dhoti and yellow terylene shirt as they were discovered near the skull. Witnesses to Ext 5A under which the skull and the articles of dress were seized have not been examined by the prosecution. On the first page of the seizure list item No. 4 is written out as "articles seized" and immediately thereafter the description of the skull and the light yellow coloured shirt on which it was found lying were given. This is not described as item No. 1 under the bead the articles seized. On the second page of the reverse side other things like terylene shirt, violet bordered dhoti and some torn white piece of cloth etc. were noted as items 2, 3 and 4. On the second page signatures of the seizure witnesses were not taken. From the other seizure list on record we find that signatures of witness of seizure are ordinarily taken at the bottom of the seizure list after the entire seizure list has been written out. The unusual manner in which this seizure Ext. 5A was written out and omission of signatures of witnesses give rise deep suspicion regarding authenticity of the seizure list. The unusual manner in which this seizure Ext. 5A was written out and omission of signatures of witnesses give rise deep suspicion regarding authenticity of the seizure list. 8. Identity of Bejoy from the skull seized has not been proved to permit a conclusion that he had a homicidal death. There is no direct or clinching circumstantial evidence regarding his homicidal death. The confessions have not been proved to be voluntary and truthful. So we conclude that prosecution failed to prove affirmatively beyond reasonable doubt that accused were guilty of the offences they have been convicted. 9. Further, even the confessions do not disclose that the appellants had any intention to murder Bejoy like Jagannath and Balai. If the appellants confessions are believed, they simply abducted Bejoy for murder by the acquitted accused Jagannath and Balai. The appellants had no pre-concert with the last named accused, nor were they present when Bejoy was alleged to have been murdered at the spot to participate in the crime. To our surprise we find the appellants have been acquitted of the offence under S. 364 IPC, but has been convicted under S. 302 read with S. 34 IPC. 10. In the result the judgment under appeal is set aside. The appeal is allowed. Both the accused are found not guilty of the offences with which they were charged and convicted and they are acquitted. They are directed to he set at liberty forthwith. Gobindra Chandra Chatterjee, J.: I agree. Appeal allowed, accused found not guilty.