ORDER C.R. Sarma, J. 1. The above three appeals are directed against the common judgment and order dated 14-6-2005 passed by the learned Sessions Judge, West Tripura, Agartala in Sessions Case No. 174(WT/A)/2004. By the impugned judgment and order, the learned Sessions Judge convicted Smt. Laxmi Das, Smt. Laxmi Chakraborty and Sri Ranjit Paul for the offences under Section 364/511, IPC and sentenced them to undergo rigorous imprisonment for ten years each. Being aggrieved by the said judgment and order, the accused-appellants aforesaid have preferred these appeals on the ground that the learned Sessions Judge committed error by convicting them without sufficient substantive evidence. As the above set of appeals have arisen out of the same judgment and involve the same questions of fact and law, with the consent of the learned Counsels appearing for both the parties, I propose to dispose of the above three appeals by this common judgment and order. 2. The prosecution case, in brief, may be stated as follows: Master Subhankar Sarkar (P.W. 3), a student of Children Montessori Center, office lane on 6-7-2004 at 11.30 a.m. after the school hour was waiting inside the school campus to be picked up by his parents. Taking this opportunity, the accused-appellant Smt. Laxmi Das entered the school premises and attempted to take him away by pulling his hand, to which the P.W. 3 resisted by crying. Hearing his cry, the school teachers, namely, Smt. Tultul Chakraborty (P.W. 1), Smt. Chandana Deb (P.W. 2) rushed to the P.W. 3 and rescued him from the said Smt. Laxmi Das, who was detained in the school. On being questioned by the teachers as to why she tried to take that boy. Smt. Laxmi Das gave contradictory replies stating at one point of time that she was the maid servant working in the house of P.W. 3 and at another point of time that she was the aunt of P.W. 2. But Subankar refuted her claim. On being informed, Sri Prabir Sarkar (P.W. 4), the father of P.W. 3, arrived in the school to clarify that the said woman was not known to him. On being further interrogated, Smt. Laxmi Das disclosed that she had two other companions, namely, Smt. Laxmi Chakraborty and her husband, Sri Ranjit Paul, who were waiting outside. Accordingly, the Police being informed, the said Smt. Laxmi Das was taken to the police station. On being further interrogated, Smt. Laxmi Das disclosed that she had two other companions, namely, Smt. Laxmi Chakraborty and her husband, Sri Ranjit Paul, who were waiting outside. Accordingly, the Police being informed, the said Smt. Laxmi Das was taken to the police station. P.W. 4, Sri Prabir Sarkar lodged the FIR with the police, which was registered as West Agartala PS case No. 71 of 2004 under Sections 364/511, IPC. During the investigation, the Police arrested the other two co-accused, namely, Smt. Laxmi Chakraborty, and her husband Sri Ranjit Paul. Police forwarded Smt. Laxmi Das and Smt. Laxmi Chakraborty to the learned Magistrate for recording their confessional statement. Smt. Laxmi Chakraborty declined to make confessional statement, while the confessional statement of Smt. Laxmi Das was recorded by the learned Magistrate. At the close of the investigation, Police submitted charge-sheet against the said accused persons for committing the offence under sections, 364/511, IPC. The offence being exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, West Tripura. The learned Sessions Judge framed charges under Sections 364/511/34, IPC against the accused-appellants, to which they pleaded not guilty. In order to bring home the guilt to the accused persons, the prosecution examined as many as ten witnesses including the Investigating Officer. Considering the evidence on record, the learned Sessions Judge found the accused-appellants guilty of the offence under Sections 364/511, IPC. Accordingly, they were convicted and sentenced as aforesaid. 3. The learned Counsel appearing for the appellants submitted that there was no substantive evidence against the accused appellants to show that the appellants attempted to kidnap the P.W. 3 for the purpose of killing him and as such their conviction under Section 364, IPC was bad in the eye of law. It has further been submitted that there was not an iota of legal evidence against Smt. Laxmi Chakraborty and Sri Ranjit Paul except the statement of Smt. Laxmi Das, who was a co-accused and as such the conviction of the appellants Smt. Laxmi Chakraborty and Sri Ranjit Paul was bad, being unsustainable in law. It has further been submitted that there was not an iota of legal evidence against Smt. Laxmi Chakraborty and Sri Ranjit Paul except the statement of Smt. Laxmi Das, who was a co-accused and as such the conviction of the appellants Smt. Laxmi Chakraborty and Sri Ranjit Paul was bad, being unsustainable in law. The learned Public Prosecutor supporting the impugned judgment submitted that the accused-appellant made a conspiracy for kidnapping P.W. 3 and that in furtherance of their common intention, Smt. Laxmi Das went inside the school to take away the said boy (P.W. 3) and that she was caught red handed by the teachers of the school. The learned Public Prosecutor submitted that the learned Sessions Judge rightly held the accused persons guilty of the offence charged. 4. In order to appreciate the argument advanced on behalf of the parties, I would like to scrutinize and briefly re-capitulate the evidence on record as follows: Smt. Tultul Chakraborty (P.W. 1), who was a teacher of the said school stated that, on 6-7-2004, after the school hour, at about 11-30 a.m., she saw accused Smt. Laxmi Das trying to take away the P.W. 3, who was waiting for his parents. According to this witness, as the P.W. 3 refused to go with Smt. Laxmi Das, she (P.W. 1), suspecting some foul play asked the woman about her identity, who disclosing her name as Smt. Laxmi Das told her that she was the maid servant of the P.W. 3, but the father of P.W. 3, who arrived in the school, clarified that she was not his maid servant. On being informed, the Police arrived there and took the said woman to the Police station. This witness further stated that the said woman had disclosed that she had two other companions, namely, Smt. Laxmi Chakraborty and her husband Sri Ranjit Paul, who were waiting outside in a rickshaw. This witness clearly stated that she did not see Smt. Laxmi Das and her husband Sri Ranjit Paul. From the evidence of P.W. 1, it appears that Smt. Laxmi Das tried to take away the P.W. 3 from the school premises. The statement of Smt. Laxmi Das regarding involvement of Smt. Laxmi Chakraborty and her husband was the statement of a co-accused. I propose to discuss the evidentiary value of the statement made by the co-accused in the later part of this judgment. The statement of Smt. Laxmi Das regarding involvement of Smt. Laxmi Chakraborty and her husband was the statement of a co-accused. I propose to discuss the evidentiary value of the statement made by the co-accused in the later part of this judgment. Smt. Chandana Deb, another teacher of the school, deposing as P.W. 2 while supporting the evidence of P.W. 1 stated that a woman who disclosed her name as Smt. Laxmi Das tried to take away P.W. 3 from the school premises, and that the said woman being questioned disclosed that two of her companions, (one female and one male) were waiting outside the school. Master Subhankar Sarkar, a six years old student of the said school, deposing as P.W. 3 stated that the lady named Smt. Laxmi Das tried to forcibly take him away from the school premises, but due to the timely intervention of the school teachers, the woman could be detained. He identified the said woman as Smt. Laxmi Das in the Court, during the trial. According to P.W. 4, Sri Prabir Sarkar, i.e. the father of P.W. 3, Smt. Laxmi Das was found trying to kidnap his son. This witness lodged the FIR with the Police, which was exhibited as Ext. 1. Sri. Durganath Sarma (P.W. 5) stated that he heard that the son of P.W. 4 was tried to be kidnapped by a woman. Smt. Rupali Sutradhar, another teacher of the said school deposing as P.W. 6, in tune with the evidence of witnesses aforesaid stated that the accused Smt. Laxmi Das tried to kidnap the P.W. 3 and that on being interrogated, she disclosed that two other persons were waiting outside the school. From the above evidence, it appears that none of the said witnesses saw the other two persons, who were alleged to be waiting outside the school premises. P.W. 7 Sri Sanjay Biswas, Police officer, stated that P.W. 4 lodged the FIR (Ext. 2). Sri Durgaprasad Roy, the Investigating Officer in this case deposing as P.W. 8 stated that a woman, who identified herself as Smt. Laxmi Das was detained by the public in the school premises and that she was taken to the Police Station. According to P.W. 8, Sri Sukumar Shil (P.W. 10) disclosed about the involvement of the accused Smt. Laxmi Chakraborty and Sri Ranjit Paul. According to P.W. 8, Sri Sukumar Shil (P.W. 10) disclosed about the involvement of the accused Smt. Laxmi Chakraborty and Sri Ranjit Paul. The I.O. further stated that he had no information regarding the motive of the said kidnappers, Sri Udit Chowdhury, Learned CJM, West Tripura (P.W. 9) recorded the confessional statement of Smt. Laxmi Das. He has exhibited the confessional statement as Ext. 5. On careful perusal of the confessional statement, it appears that on being questioned the accused Smt. Laxmi Das repeatedly stated that she did not commit offence. In view of her statement aforesaid, I do not understand as to why the learned Magistrate, in spite of repeated pleading of innocence made by the accused, proceeded to record the same. As the accused denied to have committed any offence, the learned Magistrate should have stopped to record the confessional statement. The following questions, which among others were put to the accused and the answers given thereof will indicate the perfunctory manner in which the confessional statement was recorded: Question - Notwithstanding of deposing the statement by you confessing offence you should not be sent further to the police. Even after knowing this do you want to give confessional statement ? Answer - I have learnt. Yes, I shall give statement. I did not commit offence. Question - Have you seen any police personnel in front of me or within your sight so far lies ? Answer- No. Question - If you submit any confessional statement before me you may be punished. Even after knowing this whether you desire to confess ? Answer - I shall speak the truth, I did not commit offence. I have been implicated in this case by two persons. Question - Whether someone used pressure upon you in the police station or in the Jail to make confessional statement admitting your offence ? Answer - I had been assaulting in the police station. But I had not been beating for giving statements. I was not beaten in the Jail custody. 5. From the above, it appears that the accused was all along saying that she did not commit any offence and that she was implicated by some other persons. The accused was produced from Police custody, after Police torture (as stated by the accused) at about 10-45 a.m. in the morning. I was not beaten in the Jail custody. 5. From the above, it appears that the accused was all along saying that she did not commit any offence and that she was implicated by some other persons. The accused was produced from Police custody, after Police torture (as stated by the accused) at about 10-45 a.m. in the morning. After putting the questions and recording her answers thereof, the learned Magistrate allowed time till 12-'0' clock for reflection. The statement of the accused was recorded at 12-'0' clock. Therefore, it appears that after explaining the above particulars to the accused, the learned Magistrate recorded the statement giving reflection time for one hour and fifteen minutes only. The accused was arrested on 6-7-2004 and her confessional statement was recorded on 16-7-2004. In my considering opinion, considering the period of detention in the Police custody and the alleged torture etc. the said period of reflection was not sufficient to remove the fear and the impression of any extraneous pressure or force from the mind of the accused. From the answers given by the accused, it appears that she did not clearly understand the consequence of making confessional statement, and also about her right not to make confession. Therefore, it cannot be held that the confession was voluntary i.e. free from fear, threat etc. Hence, the same not being voluntary cannot be safely used against her. In her confessional statement, the said accused person stated that she was a sex worker and that Smt. Laxmi Chakraborty and her husband Sri Ranjit Paul took her to the school in a rickshaw and that they pointing to the P.W. 3, asked her to bring the said boy, saying that the said child belonged to them. She further stated that on being so asked by the said couple, she went inside the school and tried to take the child telling him that her mother had called him. According to this accused, the said child started crying and she was caught, while trying to take the boy. From the said statement, it appears that the accused took the plea that she was instigated by Smt. Laxmi Chakraborty and Sri Ranjit Paul to bring the boy saying that the boy belonged to them. Therefore, it appears that she, while pleading her innocence, stated that she was abetted by the other two accused persons. From the said statement, it appears that the accused took the plea that she was instigated by Smt. Laxmi Chakraborty and Sri Ranjit Paul to bring the boy saying that the boy belonged to them. Therefore, it appears that she, while pleading her innocence, stated that she was abetted by the other two accused persons. It appears that she did not admit that she had intentionally tried to kidnap the boy. Therefore, her statement, apart from not being voluntary and free cannot be treated as inculpatory confessional statement. In view of the above, her statement regarding involvement of Smt. Laxmi Chakraborty and Sri Ranjit Paul appears to be the statement made by a co-accused. Except the said statement of the co-accused and the evidence of Sri Sukumar Shil (P.W. 10) there is nothing on record against the said two accused. Before taking up the evidence of co-accused, I would like to discuss the evidence of P.W. 10 aforesaid. Sri Sukumar Shil, a rickshaw puller, deposing as P.W. 10 stated that on 6-7-2004 at about 10 a.m. he saw a rickshaw puller proceeding with two women and that at about 12-O'clock he had seen a gathering in front of the said school. According to this witness, he came to know that the woman, who was detained by the teachers in the school tried to kidnap a boy. He also stated that he had seen that woman in the rickshaw at 10 a.m. This witness identified all the three accused persons and stated that he saw them proceeding towards the office lane at 10 a.m. in the morning. From the evidence of this witness, it appears that he had seen all the three accused persons moving in a rickshaw and subsequently one of accused persons i.e. Smt. Laxmi Das, while trying to kidnap the boy, was detained by the teachers of the school. The evidence of the said witness indicates that Smt. Laxmi Das who was detained by the teachers, was one of the persons going in the said rickshaw along with other two accused persons. The evidence of this witness does not disclose anything incriminating or regarding the involvement of Smt. Laxmi Cliakraborty and Sri Ranjit Paul. There is no other independent evidence to show the involvement of the other two persons. Of course, this circumstance of finding them together prior to occurrence raises suspicion about their involvement. The evidence of this witness does not disclose anything incriminating or regarding the involvement of Smt. Laxmi Cliakraborty and Sri Ranjit Paul. There is no other independent evidence to show the involvement of the other two persons. Of course, this circumstance of finding them together prior to occurrence raises suspicion about their involvement. But suspicion alone, howsoever high, cannot be substantive evidence to hold a person guilty. Therefore, the said circumstance of finding all of them in the same rickshaw about two hour prior to the occurrence cannot be considered to be sufficient evidence to believe, beyond all reasonable doubt that the other two persons, namely, Smt. Laxmi Chakraborty and Sri Ranjit Paul were also involved in the said offence. 6. The law regarding evidentiary and probative value of confessional statement of the co-accused has been well settled in a catena of decisions. Section 30 of the Evidence Act relates to confessional statement of co-accused. The law laid down in Section 30 of the Evidence Act is as follows: Section 30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other or such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. In the case of State of Tamil Nadu v. Kutty alias Lakshmi Narasimham AIR 2001 SC 2778 : 2001 Cri LJ 4168, the Hon'ble Apex Court held - A co-accused, who confesses his guilt, stands on no better footing than an accomplice. The law insists that the accomplice's evidence be not used without corroboration. Prudence demands that when such an accomplice implicates another, then, the person, who is so implicated, has a right to test the evidence given against him by his co-accused; but no such opportunity is available in law to the person so implicated by his co-accused. The resultant effect is that the confession of a co-accused is used against another accused without giving him any opportunity of testing the veracity of the confession by cross-examining the maker thereof. The resultant effect is that the confession of a co-accused is used against another accused without giving him any opportunity of testing the veracity of the confession by cross-examining the maker thereof. No wonder, therefore, that the Apex Court has laid clown that the confession of the co-accused is not really evidence in its strict sense and cannot be made foundation for conviction of the person, who did not make the confession, though such confession can be used as an additional reason for believing the evidence on record provided that the evidence on record, independent of the confession of the co-accused, convinces the Court of the guilt of the accused against whom such a confession is relied upon. A reference, in this regard, may be made to Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159 : 1952 Cri LJ 839, wherein the Apex Court observed and laid down as follows: The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 8. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of believe independently of the confession, then, of course it is not necessary to call the confession in aid. But cases may arise, where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it should be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and, thus, fortify himself in believing what without the aid of the confession he would not be prepared to accept. In the case of Kashmira Singh (supra) the Apex Court held - A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross-examination. In the case of Kashmira Singh (supra) the Apex Court held - A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross-examination. Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. 7. In the liglu of the above law and principles regarding acceptability of confession of a co-accused in the absence of any independent evidence the statement of co-accused cannot be treated as substantive evidence to hold such other co-accused guilty of the alleged offences. Worse is the position, when such statement is an exculpatory one. In the present case, there being no independent evidence, the statement of the co-accused cannot be treated as substantive evidence against Smt. Laxmi Chakraborty and Sri Ranjit Paul. Therefore, it is quite doubtful as to whether Sri Ranjit Paul and Smt. Laxmi Chakraborty had engaged Smt. Laxmi Chakraborty to kidnap P.W. 3. It is settled law that in the event of two inferences i.e. one going in favour of the accused and the other in favour of the prosecution, the inference going in favour of the accused should be accepted. The possibility of two inferences are sufficient to lead to the conclusion that the prosecution version is not free from doubt. Therefore, the benefit should go in favour of the accused. In view of the above, I do not find it safe to hold that the appellants Smt. Laxmi Chakraborty and Sri Ranjit Paul are guilty of the alleged offence. Therefore, they are entitled to benefit of doubt. Accordingly, the conviction and sentence recorded by the learned Sessions Judge against Smt. Laxmi Chakraborty and Sri Ranjit Paul are set aside. The said two appellants are entitled to be set at liberty forthwith. 8. All the prosecution witnesses, more particularly, P.Ws. 1, 2, 3 and 6 clearly stated that the accused Smt. Laxmi Das was caught red handed while trying to forcefully take away the P.W. 3. The said witnesses were duly cross-examined on behalf of the defence, but their evidence could not be demolished. 8. All the prosecution witnesses, more particularly, P.Ws. 1, 2, 3 and 6 clearly stated that the accused Smt. Laxmi Das was caught red handed while trying to forcefully take away the P.W. 3. The said witnesses were duly cross-examined on behalf of the defence, but their evidence could not be demolished. There is sufficient corroboration in their evidence pointing to the guilt of the said accused. In view of the above, there is nothing on record to disbelieve the evidence of the said witnesses. In the light of the above evidence on record, the prosecution could substantiate, by adducing cogent and sufficient substantive evidence, beyond all reasonable doubt, that the accused Smt. Laxmi Das tried to kidnap the P.W. 3; who was a minor from the school premises i.e. the lawful authority. 9. In the present case, learned Sessions Judge has convicted the accused persons for the offence under Section 364, IPC. Section 364, IPC reads as follows: 364 - Kidnapping or abducting in order to murder - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 10. There is nothing on record to show that the accused person had any intention to murder or to dispose of the P.W. 3 in a manner so as to put him in a danger of being murdered. The I.O. himself, deposing as P.W. 8, stated that during the investigation he could not ascertain the purpose of kidnapping the boy. It has not been established that the attempt to kidnap was done with a view to murder or to dispose of the P.W. 3 in a manner so as to put him in danger of being murdered. It appears that the offence committed by the accused-appellant Smt. Laxmi Das was an offence covered by the Section 361, IPC i.e. kidnapping from lawful guardian. Therefore, the conviction and punishment should have been made under Section 363, IPC for committing the offence under Section361, IPC which reads as follows : - 361. It appears that the offence committed by the accused-appellant Smt. Laxmi Das was an offence covered by the Section 361, IPC i.e. kidnapping from lawful guardian. Therefore, the conviction and punishment should have been made under Section 363, IPC for committing the offence under Section361, IPC which reads as follows : - 361. Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 11. Therefore, in the absence of any ingredient regarding intention to murder, or to put the P.W. 3 in danger of being murdered, the conviction and sentence recorded under Section 364, IPC was not proper. However, as discussed above, from the evidence on record, it has been established that the appellant Smt. Laxmi Das tried to take away the P.W. 3, who was a minor at the relevant time from the lawful guardian. Therefore, by the alleged act, the appellant aforesaid tried to kidnap the said minor boy from his lawful guardian. Hence, it was a case of kidnapping simpliciter and as such the accused appellant committed the offence under Section 361, IPC, which is punishable under Section 363, IPC. The gravity and punishment of the offence under Section 363, IPC being lesser than the punishment prescribed by Section 364, I propose to modify the conviction and sentence. 12. In the light of what has been discussed above, I modify the conviction awarded to Smt. Laxmi Das to one under Section 363/511, IPC. The maximum punishment under Section 363, IPC being seven years with fine, the appellant aforesaid having been convicted under Section 363/511, IPC, the maximum period of imprisonment required to be undergone by her would be three years and six months. Accordingly, the appellant is sentenced to suffer rigorous imprisonment for three years and six months under Section 363, IPC read with Section 511, IPC instead of ten years rigorous imprisonment under Sections 363/511, IPC. Learned Counsel for the appellant has submitted that the appellant aforesaid has already undergone imprisonment for more than six years. Accordingly, the appellant is sentenced to suffer rigorous imprisonment for three years and six months under Section 363, IPC read with Section 511, IPC instead of ten years rigorous imprisonment under Sections 363/511, IPC. Learned Counsel for the appellant has submitted that the appellant aforesaid has already undergone imprisonment for more than six years. In view of the above, the appellant, having already suffered the maximum period of imprisonment for the offence under Section 363/511, IPC, she is entitled to be set at liberty forthwith. Accordingly, it is ordered that the appellant Smt. Laxmi Das be set at liberty forthwith. As discussed earlier, the other two appellants Smt. Laxmi Chakraborty and her husband Sri Ranjit Paul are also acquitted and set at liberty forthwith from the liability of the impugned judgment and order. 13. With the above modifications, these appeals stand disposed of.