JUDGMENT : 1. A shocking incident of murder of two innocent school going children is the matter of trial in Sessions Case No. 22 of 2000 (Sessions Case No. 273 of 1991) and Sessions Case No. 23 of 2000 (Sessions Case No. 274 of 1991) in the Court of Additional Sessions Judge, Jeypore. Two accused persons namely Rama Krushna alias Jeeban Kumar Padhiari and Manoj Kumar Padhi were charge-sheeted. Jeeban being absconding, trial of the case was split up and in the above noted Sessions Cases, Manoj faced the trial. On analysis of the circumstantial evidence, Learned Addl. Sessions Judge held that both the deceased children suffered homicidal death and accused Manoj is guilty of the charge under Sections 364/302/34, Indian Penal Code Accordingly, the accused-Appellant was sentenced to imprisonment for life together with fine of Rs. 5,000/- for the offence u/s 302/34, Indian Penal Code and rigorous imprisonment for seven years and to pay fine of Rs. 1,000/- for the offence u/s 364/34, Indian Penal Code that order of conviction and sentence is under challenge before us. 2. As we find from the lower Court records, Aditya (one of the deceased) is the grandson of Gopa Sundar Padhiary. Said Gopa Sundar had two wives. Nrusingha Nanda Padhiary, father of Aditya was his (Gopa Sundar's) son through the first wife and accused Rama Krushna alias Jeeban was his son through the second wife. As alleged by the prosecution, accused Jeeban being addicted to all bad habits, was a wayward person. Being annoyed with his irresponsibility, misconduct and the wayward life, Gopasundar had declared to bequeath all his properties in favour of Aditya. Motive of Jeeban was formulated therefrom to eliminate Aditya. Accused Manoj is a cousin of Jeeban and Nrusingha Nanda. Accused Jeeban and Manoj hatched the conspiracy to kill Aditya. 3. Deceased Sandeep (the other deceased) is the son of one Ghanashyam Sharma, who is a family friend of Gopa Sundar Padhiary and he was supporting Nrusingha Nanda, father of deceased Aditya. By the date of occurrence, deceased Aditya and Sandeep were residential students in Sunabeda Public School and they were residing in the hostel of that public school. 4. According to the case of the prosecution, on 16.04.1991 between 2 to 2.30 P.M., Appellant brought the two deceased Aditya and Sandeep from the hostel premises and took them to Manorama Lodge behind the Bus-stand at Jeypore. 4. According to the case of the prosecution, on 16.04.1991 between 2 to 2.30 P.M., Appellant brought the two deceased Aditya and Sandeep from the hostel premises and took them to Manorama Lodge behind the Bus-stand at Jeypore. He occupied a room in a fictitious name i.e. as Sekhar Nag of Malkangiri. On that date, accused Jeevan also occupied a room in Shanti lodge. In the night, he left the lodge with the boys one after the other in a gap of half to one hour. Thereafter, the dead bodies lying at two different spots were discovered on the following day morning by the local public and that is how two First Information Reports, Exts. 44 and 38 were registered and investigation was undertaken. In course of investigation, it was found that this accused and accused Jeeban in a planned manner committed the crime after bringing the children from the school premises. In course of investigation, several incriminating materials were recovered and the Trial Court has taken into consideration such fact, only against accused-Appellant Manoj, because the co-accused absconded during trial. Though two P.S. cases, two G.R. cases and two Sessions Cases as noted above were registered but both the occurrence being in furtherance of the same conspiracy, a joint trial was taken up. 5. Accused-Appellant took the plea of denial and false accusation. 6. To substantiate the charge, prosecution examined as many as 42 witnesses and relied on series of documents marked Exts. 1 to 51 besides the material objects, such as the weapons of offence, the wearing apparels of the deceased and the accused persons and the photographs of the children, both positive and negative. Such material objects were marked M.O.I to M.O.XVIII. The accused examined one witnesses i.e. D.W. 1 Minaketan Dalai to say that nobody named Karna Sagar was working in Manorama Lodge in the year 1991. That Karna Sagar has been examined as P.W. 15. 7. Learned Addl. Sessions Judge took note of the fact that there was no eyewitness to the occurrence and the entire prosecution case rests on circumstantial evidence. That Karna Sagar has been examined as P.W. 15. 7. Learned Addl. Sessions Judge took note of the fact that there was no eyewitness to the occurrence and the entire prosecution case rests on circumstantial evidence. In that respect, the circumstantial evidence of last seen, extra-judicial confession, recovery u/s 27 of the Evidence Act and the movement and conduct of the accused noted in different hotels have been taken into consideration by the Trial Court, besides the evidence of the doctors, who conducted postmortem examination on the dead body of the deceased persons. 8. To avoid any confusion, it is noted here that so far deceased Aditya is concerned, P.S. Case No. 81 of 1991 was registered and the 1st Investigating Officer was A.C. Sethi, Sub-Inspector of Police of Jeypore Town Police Station. The dead body of the deceased was found lying at the foot of the hillock at Block Colony. Ext. 4 is the Inquest report relating to him and Ext. 5 is the seizure list in proof of seizure of the stone (weapon of offence, M.O.II). Ext. 6 is the seizure list in proof of seizure of bloodstained and sample earth from the spot. Photographs of Aditya are M. Os. IX to XII and the postmortem report is Ext. 24, besides the opinion report Exts. 25 and 26. So far as deceased Sandeep is concerned, P.S. Case No. 82 of 1991 was registered and the first Investigating Officer was A.K. Deo, Sub-Inspector of Police, Jeypore Town P.S. The dead body was found near by-pass road of Canal side of Kolab canal. Ext. 1 is the inquest report, Exts. 39 and 40 are seizure lists of blood stained earth and other incriminating articles, like iron rod and blood-stained stone. His Photographs are M. Os. VII and VIII. The postmortem report is Ext.30 and the opinion reports are Exts. 30 and 31. 9. It reveals from the postmortem report, Ext.24 proved by Dr. Bauribandhu Muni, P.W. 28 that by the time he examined the dead bodies, both the corneas were looking white, eye balls were protruded, tongue protruded, lips were averted, purple bruise colour present at skin at some places and maggots were present over the chest wall around the wounds. 9. It reveals from the postmortem report, Ext.24 proved by Dr. Bauribandhu Muni, P.W. 28 that by the time he examined the dead bodies, both the corneas were looking white, eye balls were protruded, tongue protruded, lips were averted, purple bruise colour present at skin at some places and maggots were present over the chest wall around the wounds. Doctor noticed perforating stab wound on the left side of the chest wall medial to the left nipple in between fourth and fifth inter-coastal space half an inch lateral to the left lateral sternal border. Heart and left lung were perforated and all the chambers of the heart were empty. He also noticed two more incised wounds on the right parietal region 3" above the right ear and over occipital region 1 1/2" back to the injury on the parietal region. P.W. 28 also found a lacerated injury with haematoma under the scalp over right temporal region with fracture of the underlying temporal bone injuring membranes of the brain. He opined that such injuries were ante mortem in nature and death was due to shock and haemorrhage as a result of stab injury to the heart, fracture of skull and injury to the brain and that death could have been instantaneous. He opined that injury to the chest wall would have been by a sharp pointed weapon and to the scalp by sharp cutting weapon and the lacerated injury by hard and blunt weapon. He also opined that the sharp weapon used may be a knife and the blunt weapon used may be a stone. He recorded that the deceased died 36 to 40 hours before the postmortem examination. P.W. 28 further stated that on being produced for his opinion he inspected the knife, M.O.I and the Stone M.O.II and gave his opinion report, Ext. 25 and 26 respectively that such could be the weapons of offence. 10. Dr. He recorded that the deceased died 36 to 40 hours before the postmortem examination. P.W. 28 further stated that on being produced for his opinion he inspected the knife, M.O.I and the Stone M.O.II and gave his opinion report, Ext. 25 and 26 respectively that such could be the weapons of offence. 10. Dr. Kedarnath Choudhury, P.W. 31 is the other doctor, who conducted autopsy on the dead body of deceased Sandeep and found 12 incised injuries of different dimensions on the face, chest, below the right eye extending upto upper boarder of the mandible, frontal region of the scalp, below the occipital region of the scalp, centre of the back, below the inferior angle of scapula on the right side, right elbow, left upper arm, dorsum of the right arm, right nipple and middle of left thigh. He also found three fracture wounds over the right renal angle (lumber region) cutting the right kidney and ascending colon and mid-auxiliary line on the right side below the lower boarder of the liver,besides epigastric region below the xiphi-sternum as a result of which the stomach was cut and protruded. P.W. 31 opined that all the injuries were ante mortem in nature and death was due to injuries to the vital organs like liver, kidney, stomach and ascending colon. He opined that all the injuries would have been caused by sharp cutting weapon like knife and the death was within 24 to 72 hours from the time of postmortem examination. Accordingly, he proved the postmortem report, Ext.30. On examining the knife, M.O.I, he opined that the injuries found on the dead body of the deceased were possible by that weapon. Accordingly, he proved his opinion report, Ext.31. 11. The aforesaid postmortem reports reveal no room for doubt that each of the deceased suffered inhuman and brutal assault resulting in their homicidal death. There is nothing on the evidence of P. Ws. 28 and 31, which could be brought in the cross-examination so as to deviate from the opinion of the two doctors about the homicidal death of the deceased persons. Being conscious of that, Learned Counsel for the Appellant does not dispute to the aforesaid finding of the Trial Court that both the deceased suffered homicidal death. 12. As noted earlier, Trial Court recorded that the prosecution case rests on the circumstantial evidence. Being conscious of that, Learned Counsel for the Appellant does not dispute to the aforesaid finding of the Trial Court that both the deceased suffered homicidal death. 12. As noted earlier, Trial Court recorded that the prosecution case rests on the circumstantial evidence. He also took note of the principle guiding determination of a case on the basis of circumstantial evidence. Learned Addl. Sessions Judge recorded the finding that evidence of P. Ws. 2, 3, 4 and 5 proves the last seen theory. Amongst them, Sukanti Bagh, P.W. 2 was then working as a servant in the Sunabeda Public School. Similar is the case of Hiramani Kuldip, P.W. 3, Albina Suna, P.W. 4 and Phulmani Nag, P.W. 5. The latter was a cook in the hostel. The Trial Court recorded in the judgment that care was taken not to bring home the name of the absconded accused and to bring on record such evidence, which relates to the accused Appellant. Accordingly, evidence of P. Ws. 2 to 5 was recorded in which each of them stated that accused-Appellant had gone to the hostel and brought them (the deceased boys) out of the campus and proceeded towards the above spot without the permission from the Principal of the School. According to all these witnesses, such occurrence took place on 16.04.1991 at about 2.00 P.M. 13. Learned Additional Sessions Judge then took note of the evidence of P. Ws. 15, 16, 17,23,24,32,36, the hotel staffs of different hotels in relation to the last seen theory. Amongst them, Karna Sagar, P.W. 15 was stated to be working as a boy in Manorama lodge on the relevant date and Raj Kishore Patra, P.W. 23 being the owner of that lodge situated near Jeypore bus-stand. Daily Register of the hotel is Ext.12 and relevant entries made therein are 12/1, 12/2 and 12/3. Both these witnesses stated about the Appellant coming to their hotel with two boys and took a room in their hotel and also about the subsequent conduct of the Appellant. Baidyanath Gadava, P.W. 16 was the lodging boy in Indra Bhavan Lodge, Jeypore. He deposed that previously i.e. by the date of occurrence, he was working in Shanti lodge at Jeypore and that on a Tuesday at about 11 P.M., the Appellant came to that lodge and occupied room No. 13 and that about 3.00 A.M. at night he left the lodge. He deposed that previously i.e. by the date of occurrence, he was working in Shanti lodge at Jeypore and that on a Tuesday at about 11 P.M., the Appellant came to that lodge and occupied room No. 13 and that about 3.00 A.M. at night he left the lodge. Jitendra Patra, P.W. 32 who worked as Accountant of Shanti lodge, Jeypore spoke about the occupation of room No. 13 by the Appellant in the name of Chandra Sekhar Nag of Malkangiri and room No. 22 by accused Jeevan. Mahammad Basa, P.W. 36 was the Manager of the Shanti Lodge stated about accused Jiban Padhiary occupied room No. 22 in that lodge on 15.04.1991 and left the same on 16.04.1991 at 1.30 P.M. and that accused Manoj occupying room No. 13 The Register is proved as Ext. 32 together with entry as 32/1, so-also the entry relating to Room No. 13 as Ext.32, which was seized under the seizure list, Ext.33. Somanath Bhotra, P.W. 17, then was working as a Boy in Trupti lodge, Nabarangpur. He deposed that on 16.04.1991 at about 6.15 P.M., accused Jiban booked room No. 112 in his name and soon thereafter he left the hotel and did not return in that night. Ashok Kumar Basantray, P.W. 24 was the Manager of Trupti lodge. He stated that on 16.04.1991 at about 3.15 P.M., accused Jiban came to that lodge and occupied a single room i.e. room No. 112 and that was entered in the daily Register, Ext. 14 vide relevant entry Ext.15 and receipt Ext.16 was granted in proof of payment of the room rent. He deposed that after booking the room, accused Jeeban left the lodge and did not return till 5 A.M. of the following day. 14. Taking into account their oral testimony about the movement of the accused persons and Appellant coming to Shanti lodge together with the children and taking them out one by one and the dead body being discovered by the following day morning, the Trial Court recorded the finding that case of last seen theory is proved by the prosecution. 15. Sunadhar Bissoi, P.W. 22 and V. Subba Rao, P.W. 25 are witnesses to the extra-judicial confession made by accused Jiban, but there is no whisper in that statement about accused Manoj. Therefore, that extra-judicial confession was of no assistance to the Trial Court. 16. 15. Sunadhar Bissoi, P.W. 22 and V. Subba Rao, P.W. 25 are witnesses to the extra-judicial confession made by accused Jiban, but there is no whisper in that statement about accused Manoj. Therefore, that extra-judicial confession was of no assistance to the Trial Court. 16. Subash Chandra Hota, P.W. 13, A. Shankar Rao, P.W. 14 are witnesses to leading to discovery of the weapon of offence i.e. knife at the instance of accused Jiban. Prabir Kumar Das, P.W. 20 and K. Maleswar Rao, P.W. 21 are witnesses to the house search and recovery of incriminating articles at the instance of the Appellant under seizure list, Ext. 10, a document seized thereof is Ext.9, a letter written by accused Jiban to accused/Appellant Manoj. Similarly, on another instance i.e. on 28.04.1991, blood-stained shoes and shocks of the Appellant was seized at his instance under seizure list, Ext.11. They also stated about the conduct of the accused-Appellant showing his mental state after the occurrence. 17. Learned Addl. Sessions Judge also took note of evidence of Dr. Ch. Prabhakar, P.W. 29 in finding injury on the right palm of accused-Appellant as indicated in the injury report, Ext.27, the opinion report, Ext.29 about possibility of that injury by M.O.I and Ext.28 is the report regarding collection of the nail clipping and forwarding that to the investigating agency. Report from the S.F.S.L. is Ext.51. It contains report of the Serologist and the Director. According to that report, 'A' group human blood was detected in the wearing apparels of the deceased persons and the blood stained earth and hair from the stone but also from one of the shoes and one of the shocks of the accused Appellant. 18. On cataloging the evidence in the above indicated manner and relying on the same, Learned Addl. Sessions Judge recorded that accused-Appellant is guilty of the aforesaid two murders and accordingly convicted the Appellant and sentenced in the manner already indicated. 19. Learned Counsel for the Appellant argues that mere proof of homicidal death of the deceased persons is not sufficient to warrant a conviction against the Appellant, unless prosecution brings reliable evidence to connect the Appellant with the alleged crime. 19. Learned Counsel for the Appellant argues that mere proof of homicidal death of the deceased persons is not sufficient to warrant a conviction against the Appellant, unless prosecution brings reliable evidence to connect the Appellant with the alleged crime. He argues that the last seen theory has not at all been proved in this case, inasmuch as, the death occurred in the night and the Appellant was only seen with the deceased boys at about 2.00 P.M. when allegedly he brought out the children from the hostel premises. He further argues that the chain of circumstance does not complete the chain of circumstance, so as to unfailing pointing out guilt of the accused and under such circumstance, the accused/Appellant is entitled to benefit of doubt. Learned Counsel for the Appellant strongly argues that no doubt the occurrence is a shocking one but since the offence has not been proved against the Appellant beyond all reasonable doubt, therefore, his conviction is illegal and liable to be set aside. Similarly, he argues that evidence recorded u/s 27 of the Evidence Act is not strictly coming in conformity with law, therefore, seizure of the articles and the incriminating blood found in the shoes and shocks are deficient to clinchingly prove the homicide against the Appellant. He relies on citations on the aforesaid two aspects. Learned Counsel for the Appellant argues that when there is no evidence on record to prove the offence u/s 364, Indian Penal Code therefore, the Appellant be acquitted from the said charge together with the charge u/s 302/34, Indian Penal Code 20. Repelling that argument, Learned Standing Counsel argues that in this case, prosecution has proved all the circumstance available and such proved circumstances completes the chain of circumstance to indicate that it is the Appellant and accused Jeeban and none else who could have committed the crime and under such circumstance, the order of conviction recorded by the Trial Court be maintained. He further argues that a sentence of imprisonment for life in a case of this nature is totally inadequate. He further argues that a sentence of imprisonment for life in a case of this nature is totally inadequate. He further submits that though the State did not prefer an appeal for enhancement of sentence but while considering the gravity of the offence and gruesome manner in which two innocent children were murdered for lust of property, this Court while exercising the Appellate jurisdiction can enhance the sentence to impose the death sentence on the Appellant. In support of his contention, he also relies on citations. 21. In the case of Jaharlal Das Vs. State of Orissa, (relied by the Appellant), a five years girl was found moving with the accused in that case. Though the accused returned to his house and explained that the deceased girl had also returned to her house but the dead body of the deceased could be discovered at a latter stage and then the accused was accompanying the parents of the deceased and the police personnel before whom he made confession. Taking into consideration the time gap and other infirmities in the evidence and particularly, the father of the victim girl improving his case from time to time, the Apex Court set aside the order of conviction. Therefore, because of distinguishable facts and circumstances, the ratio therein is not available to be applied in this case. On the other hand, in the case of Amit alias Ammu v. State of Maharastra, 2003 (5) Sup 576, the fact before the Apex Court was that the boy (witness) going to that side for grazing of animals (buffalos) had seen the accused and the deceased was proceeding to that side. The accused in that case was convicted on the basis of last seen theory. While answering to the argument made by the accused in the above context, their Lordship held that: 8. The main submission of Learned Counsel for the Appellant is that unless time of death is established it is not permissible to rely upon circumstance of last seen so as to convict the Appellant. The main circumstance against the Appellant is of last seen with the deceased as deposed by P.W. 1 and P.W. 11. We have carefully examined the testimony of P.W. 1 and P.W. 11. Their evidence is trustworthy and reliable. It has ring of truth. The main circumstance against the Appellant is of last seen with the deceased as deposed by P.W. 1 and P.W. 11. We have carefully examined the testimony of P.W. 1 and P.W. 11. Their evidence is trustworthy and reliable. It has ring of truth. It stands fully established that they had seen the deceased and the Appellant on 28th March as noticed hereinbefore. Apparently, both left as deposed by P.W. 1 but as the circumstances show that, in fact, they did not leave. When the next day P.W. 1 again came to the same area for grazing of buffaloes, he found the body of the deceased whereupon the matter was reported to the police and F.I.R recorded and investigation conducted as noticed earlier. It has also come in evidence that usually P.W. 1 used to go to the same area for grazing of the animals which was a secluded area and also had a dilapidated building. It is apparent from the site plan as well. Regarding the contention that the time of the incident had not been established and therefore the circumstance of last seen is not sufficient to convict the Appellant, the High Court on examination of the evidence has reached the following conclusion:- In the instant case, the region being temperate, rigor mortis lasts for about two to three days. If we apply this analogy, then at the time of post-mortem examination, which was conducted on 30.3.2001 and begun at 11.40 a.m., the doctor did not find rigor mortis. That means the time of death must have been on 28.3.2001 between 3.00 p.m. and 4.00 p.m., since the rigor mortis in a temperate region lasts for two days. This is not the case, therefore, where time of death cannot be ascertained on the basis of these recognized guidelines, merely because the same is not given in the post-mortem report. In our considered view, this is not the circumstance which affects the material particulars of the prosecution case in the crime in question. We are in complete agreement with the conclusion of the High Court on the aspect of time of the death. In the case of State of Utter Pradesh v. Satish, (2005) 30 OCR (SC) 663, the fact involved was that P. Ws. We are in complete agreement with the conclusion of the High Court on the aspect of time of the death. In the case of State of Utter Pradesh v. Satish, (2005) 30 OCR (SC) 663, the fact involved was that P. Ws. 3 and 5 of that case claimed to have seen the deceased being carried on by a bicycle by the accused between 1.00 and 2.00 P.M., the accused was found in a perplexed state near the place from where the dead body of the deceased was found. In that case also last seen theory was one of the item of evidence to prove the case against the accused. In that context, the Apex Court held that: 22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other then the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen- together by witnesses P. Ws. 3 and 5, in addition to the evidence of P.W. 2. It thus emerges that fact of every case is to be decided as per the evidence and the circumstance available in that case and the factum of time gap is a relevant factor to consider the last seen theory. 22. As noted earlier, in this case through P. Ws. 2, 3, 4 and 5 prosecution has proved that the Appellant brought out the children from the hostel and took them out of the campus without permission of the Principal, i.e. taking away the children from the lawful guardianship of the Principal. Then the other witnesses from the hotels state that accused came to their hotel with the two children. There is no challenge to that evidence in course of detailed cross-examination. Then the other witnesses from the hotels state that accused came to their hotel with the two children. There is no challenge to that evidence in course of detailed cross-examination. It is in the night (after the evening) one after the other, both the boys were taking away by the accused Appellant and those boys never returned to the hotel and their native place, but on the following day morning each of them was found dead and such was the homicidal death. Under such circumstance, the accused was last seen with the deceased is proved. Though the accused-Appellant adduced defence evidence but did not at all explain his conduct as to why he had taken out the children from the hostel, brought them to the hotel and in whose custody, if at all, he left the children though he was legally bound to leave them in the custody of the lawful guardian. Thus, the prosecution proves the Appellant to be the custodian of the child by the relevant time, whereas without dislodging that evidence and thereby admitting the custody of the children, Appellant does not prove as to in what manner, the deceased persons went out from his custody and suffered the homicidal death. Here virtually there is no time gap so as to draw any adverse inference against the prosecution or any favourable inference in favour of the accused-Appellant so as to grant him the benefit of doubt. The findings recorded by the Trial Court in proof of the last seen theory is therefore found to be in conformity with the principle of law as well as available evidence and we find no reason to interfere with such factual finding. 23. Seizure of the shoes and the shocks of the Appellant was admittedly at his instance as per the evidence of P. Ws. 20 and 21 and both of them happens to be the friends of both the accused persons. The report from the S.F.S.L. clearly indicates regarding finding of human blood group 'A' in such belongings of the accused-Appellant together with the wearing apparels of the deceased persons. In the above context, Learned Counsel for the Appellant relies on the case of State of Mysore and Another Vs. Syed Mahmood and Others, and Sukhvinder Singh and Ors. v. State of Punjab, 1994 (2) Crime 904 . In the above context, Learned Counsel for the Appellant relies on the case of State of Mysore and Another Vs. Syed Mahmood and Others, and Sukhvinder Singh and Ors. v. State of Punjab, 1994 (2) Crime 904 . In the case of Prabhoo (supra) on a distinguishable fact, it was held that in the absence of any statement that such articles belong to him the discovery of the incriminating materials do not connect the Appellant. Such is not the case here. In the case of Sukhvinder Singh (supra), the Apex Court found the case of seizure not to be a case of recovery and that is how found the evidence u/s 27 is not attracted. That fact and circumstance is distinguishable inasmuch as in the present case, the evidence of P. Ws. 20 and 21 clearly indicates that when the shoes and the shocks were recovered under the seizure list, Ext.37, there could not have been a recovery unless there would have been discovery, because those articles had been concealed inside a broken wall. Seizure of Ext. 9 and other articles from the wearing apparels of the Appellant of course cannot be said to be u/s 27 of the Evidence Act, but that becomes a relevant evidence u/s 8 read with Section 9 of the Evidence Act. Ext. 9, the slip (letter) written by accused Jeeban was found in possession of the accused-Appellant and therefore when the prosecution has proved that the accused-Appellant had gone and fetched the children and kept them in the hotel and took them one after the other in the night of occurrence, the aforesaid Ext.9 gathers significance so as to connect the Appellant with the alleged crime. Under such circumstance, both the evidence u/s 27 with respect to the seizure of the shoes and shocks of the accused-Appellant and seizure of the letter, Ext.9 under Sections 8 and 9 of the Evidence Act are found relevant circumstantial evidence to complete the chain of circumstance in furtherance of the proof of the charges of murder. Such finding recorded by the Trial Court is also not liable to be disturbed in absence of any illegality or perversity. 24. We do not find any substance in the argument of the Appellant that a case of kidnapping punishable u/s 364, Indian Penal Code is not made out. Such finding recorded by the Trial Court is also not liable to be disturbed in absence of any illegality or perversity. 24. We do not find any substance in the argument of the Appellant that a case of kidnapping punishable u/s 364, Indian Penal Code is not made out. Section 359, Indian Penal Code defines the word "kidnapping" and states that kidnapping is of two kinds; kidnapping from India and kidnapping from lawful guardianship. Section 361, Indian Penal Code further defines "kidnapping from lawful guardianship" by stating that if a minor is taken or enticed out of the keeping of the lawful guardians without the consent of such guardian, then such act amounts to an offence of kidnapping. Section 364 Indian Penal Code provides that whoever kidnaps or abducts any person in order that such person may be murdered, then he should be given punishment for imprisonment for life or rigorous imprisonment for a term which may extend to ten years and also liable to fine. Admittedly, accused Appellant is not a guardian of either of the two children. Admittedly, the children were in the custody of the Principal of the public school and the Warden of the hostel. There is no evidence on record that Appellant brought out the two children after obtaining permission from the such lawful guardian. Evidence of P. Ws. 2, 3, 4 and 5 proves that the Appellant brought out the children without any such permission. Even if the children happily came with the Appellant, that does not amount to consent of the lawful guardian. It is proved by the prosecution that the accused-Appellant had no other intention than to see the death of the children in furtherance of the intention of the co-accused. Under such circumstance, the offence u/s 364, Indian Penal Code is clearly proved. 25. No other point is canvassed by the Appellant while challenging to the impugned judgment and order of conviction. At this stage, we considered the contention of the Learned Standing Counsel about the enhancement of sentence. Admittedly, the occurrence took place as back as in April, 1991 and in between a period of seventeen years has already lapsed. Virtually, substantial part of imprisonment for life has already been served by the Appellant being in custody although out, therefore, imposing death sentence at such a belated stage would amount to double jeopardy. Admittedly, the occurrence took place as back as in April, 1991 and in between a period of seventeen years has already lapsed. Virtually, substantial part of imprisonment for life has already been served by the Appellant being in custody although out, therefore, imposing death sentence at such a belated stage would amount to double jeopardy. Therefore, we do not accept the aforesaid argument of the Learned Standing Counsel. 26. In view of the foregoing discussions and findings, the Criminal Appeal is dismissed being devoid of merit and we maintain the sentence imposed by the Trial Court. Final Result : Dismissed