Judgment (1) This appeal has been filed against the judgment of the learned sessions judge, special division-i, east sikkim at gangtok dated 27-8-2010 (hereinafter referred to as the "impugned judgment") in sessions trial case no. 2 of 2010 by which the (sic). (2) (i) the prosecution case, in brief, is that on 17-9-2005 at 11.45 hrs. One tinku tamang, p.w. 3 of pipalay dara, shanti nagar, singtam, appeared in person in the singtam police station and lodged a verbal complaint to the effect that his parents karna bdr. Tamang, chowkidar of attc staff quarters and mother bishnu maya tamang who had gone to attc staff quarters at shanti nagar, singtam along with one carpenter, namely, laxuman, in the evening of 16-9-2005 at about 20.00 hrs., did not return home till the morning of the next date, i.e., 17-9- 2005, when normally his mother used to be back home by 9.00 hrs. Every morning. When the complainant, p. W. 3 and his relatives went looking for them in their quarters in the attc staff quarters, they found the door locked from outside. On their being suspicious, they broke it open and when they entered they found the inner room also locked. On breaking open that lock also and looking around they found the couple brutally murdered and their blood smeared body lying in the toilet covered with pillow and card board. Accordingly, singtam p. S. Case no. 40/2005 dated 17-9-2005 under section 302, ipc was registered against unknown person and the case taken up for investigation. (ii) after complying with the necessary formalities and on thorough investigation, it was revealed that one laxuman, mason/carpenter by profession who had accompanied the deceased couple in the night of 16-9-2005 from their house at pipalay dara to the attc staff quarters had gone missing since the day of the incident and was later seen by tinku tamang, p. W. 3 and poonam tamang, p. W. 4, son and daughter respectively of the deceased couple, on 17-9-2005 at about 8.30 hrs. In their house at pipalay dara. During the inquest conducted over the dead bodies, a gold ring worn by kama bdr. Tamang and a gold 'tilhari' (jewellery worn by married ladies) were found missing and, it was suspected to have been taken by the person causing their death. In their house at pipalay dara. During the inquest conducted over the dead bodies, a gold ring worn by kama bdr. Tamang and a gold 'tilhari' (jewellery worn by married ladies) were found missing and, it was suspected to have been taken by the person causing their death. Efforts were made to locate the whereabouts of the prime suspect, laxuman, who was said to have been working at golkar quarry site at singtam some years ago. When the investigation was on, a fir was lodged by one mrs. Rinchen dorjee, a lecturer of attc bardang, singtam, of the theft of her sony cd player, dinner set and two mink blankets from her quarters in the upper floor of the same building where the couple were found murdered. A separate singtam p. S. Case no. 41/2005 dated 17-9- 2005 under section 457/380, ipc relating to the incident was registered and case endorsed to si mahendra subba for investigation. Suspect laxuman, on being apprehended, was subject to thorough interrogation which resulted in his disclosing that on 16-9-2005 he was with the deceased kama bdr. Tamang the whole day helping him to repair his room in his house at pipalay dara, singtam and, at 20.00 hrs. The deceased kama bdr. Tamang left for his duty as chowkidar at attc staff quarters, bardang, singtam, accompanied by his wife and the accused. On the way, the accused visited the shop of one ranjit prasad gupta at pipalay dara to clear his dues of rs. 22/- leaving the deceased couple waiting by the road side. In the attc quarters while the accused was preparing his bed at about 23.30 hrs., the deceased kama bdr. Charged him for having committed theft of the household goods of a lecturer and concealing on the terrace of the adjacent building and threatened to report to the police of the matter. The accused requested the deceased pushed him away and tried to throw him out of the quarters which led to heated arguments being exchanged between two. In the midst of This, the accused lifted one iron "sli-wrench" measuring 18" in length and hit the deceased on his head. The accused requested the deceased pushed him away and tried to throw him out of the quarters which led to heated arguments being exchanged between two. In the midst of This, the accused lifted one iron "sli-wrench" measuring 18" in length and hit the deceased on his head. When the deceased cried for help, his wife the deceased bishnu maya tamang, came out from the bed room to his rescue but the accused over-powered her also and hit her with the same weapon on her head and pushed her inside the bed room and onto the bed. The accused then assaulted both the deceased couple on their heads and strangulated them with a synthetic string until he was sure that they were dead. He then dragged the bodies and dumped them in the toilet attached to the room covering them with pillows and packing board. After committing the murder the accused removed the gold ring worn by the deceased kama bdr. Tamang and cash of rs. 9,480/- from under the pillow on the bed along with a bunch of keys held in possession by the said deceased kama bdr. Tamang. He then washed all blood stains on the floor of the bed room and the room adjacent to it and locked the inner door as well as the concealing the stolen articles in room no. A-7 of the adjacent building. The accused left the place of occurrence at about 3.30 hrs. Of 17-9-2005 and went to sleep in the house of the deceased at pipalay dara, shanti nagar, singtam, from where he is believed to have left at 8.30 hrs. After having a bath. On 17-9-2005 at about 1.00 hrs. When the daughter of the deceased, poonam tamang, p. W. 4, had got up to attend to nature's call she did not see the accused in his bed but found him sleeping on the bed outside the house at about 4.00 hrs. When she was getting ready for her morning walk. (iii) having found sufficient material against the accused/appellant here, charge- sheet was filed against him under section 302 ipc for committing the murder of the couple karna bdr. Tamang, 56 years and bishnu maya tamang, 50 years by assaulting them with an iron sli-wrench and by strangulating them with a synthetic string. (iii) having found sufficient material against the accused/appellant here, charge- sheet was filed against him under section 302 ipc for committing the murder of the couple karna bdr. Tamang, 56 years and bishnu maya tamang, 50 years by assaulting them with an iron sli-wrench and by strangulating them with a synthetic string. (3) upon the charges under section 302/ 382, ipc framed by the learned sessions judge, special division-i, east sikkim at gangtok and read over to him, the appellant pleaded not guilty and claimed for trial. (4) (i) mr. S. S. Hamal, learned legal aid counsel appearing on behalf of the appellant confined the appeal to limited questions inasmuch as out of the 6 (six) circumstances found to have been proved by the prosecution in the impugned judgment, the finding on 3 (three) of them were erroneous. The 6 (six) circumstances dealt with in paragraphs 13, 14, 15, 20, 25 and 28 of the impugned judgment are summarised as under :- (1) on 16-9-2005 the complainant tinku tamang, p. W. 3, son of the deceased couple, had seen his deceased parents leaving their house at pipalay dara, shanti nagar, singtam together with the accused; (2) that the accused had easy access to both the houses of the deceased couple, i.e., their house at pipalay dara and their quarters located at attc bardang, shanti nagar, singtam; (3) recovery of wrist watch, m. O. I and gold ring m. O. Ii belonging to the deceased kama bdr. Tamang from possession of the accused; (4) the inability of the accused person to explain his possession of the wrist watch, m. O. I, gold ring, m. O. Ii and a bunch of keys, m. O. Ill of the deceased kama bdr. Tamang; (5) the accused having made the disclosure statement under section 27 of the indian evidence act, 1872, leading to the recovery of the incriminating articles; and (6) the suspicious conduct of the accused on 17-9-2005, i.e., the day after the incident, when he was found lurking near a van parked at shanti nagar, singtam petrol pump and, his sudden disappearance on seeing the police vehicle and also not visiting the family of the deceased on hearing of their death when he was so close to the family. (ii) mr. Hamal submits that the above circumstances nos. (ii) mr. Hamal submits that the above circumstances nos. 1, 3 and 5 have been erroneously held to have been proved in view of the doubtful nature of the evidence relating to those circumstances. (5) mr. J. B. Pradhan, learned public prosecutor defending the impugned judgment submits that the submissions placed on behalf of the appellant is based only on the cross-examination portions of the evidence is erroneous. There are evidence available on the records that fully establish without any doubt the circumstances against appellant and repel the inadequacies pressed on behalf of the appellant. (6) (i) i have considered the respectful submissions made on behalf of the respective parties and, i am of the view that the grounds set out on behalf of the appellant in assailing the impugned judgment cannot sustain for the reasons that shall follow hereafter. (ii) it may be noted that the grounds to assail the impugned judgment is limited to the ones set out above and, therefore, it would be irrelevant to consider any other aspect for disposal of the appeal. Confining to the questions set out above, the findings on those are set out in seriatim as under :- (a) circumstance 1 - last seen theory the only witness who is said to have seen the deceased persons leaving with the appellant is the son of the deceased couple, tinku tamang, p. W. 3 in his examination-in-chief has stated in most unambiguous terms that on 16-9-2005 his parents had gone to their quarters located in the attc building accompanied by the appellant. No doubt in the cross-examination p. W. 3 has apparently contradicted This statement when he said "i do not know when my parents left their residence at singtam pipalay dara on 16-9-2005 to their quarter at shanti nagar singtam who else accompanied them as i was in my house." but This contradiction cannot be read in isolation and requires consideration with other over-whelming evidence relevant to the other circumstances. When so considered such contradiction pales into insignificance. It may be noted that apart from the other two circumstances said to have not been proved, the rest are not questioned and admitted as proved against the appellant. When so considered such contradiction pales into insignificance. It may be noted that apart from the other two circumstances said to have not been proved, the rest are not questioned and admitted as proved against the appellant. (b) circumstance 3 - recovery of m. O. I. Ii and iii (i) for determination of This question, it would be essential to examine the evidence of the witnesses to the seizure who are p. W. 7, suresh tamang, p. W. 8, dilip bardewa and p. W. 10, tenzing sherpa. On examining so, the evidence of p. W. 7 does not appear to be of much substance as the seizure memo exhibit 18 with regard to the cash and exhibit 19 relating to the seizure of gold ornaments and another sum of cash mentioned therein were signed by him after the seizure of the articles. This is revealed from the following portion of his deposition :- "at singtam p. S. I was informed that the police had seized some cash and some gold ornaments from the possession of the accused in connection with This case since the seized cash and other articles including the gold ornaments had already been packed by the police. I did not personally see the cash or the other items seized by the police at that time. The police had prepared two seizure memos in respect of the seizure of the said articles wherein i had signed as an attesting witness. Exbt. 18 is the seizure memo vide which the police had seized the cash and the other items mentioned therein. Exbt. 18(a) is my signature. Similarly, exbt. 19 is the seizure memo vide which the police had seized a gold ornaments and the cash mentioned therein. Exbt. 19(a) is my signature. Since This matter relates to the incident which took place about four years back, cannot now identify the cash which was seized by the police vide seizure memos exbt. 18 and exbt. 19 m. O. Ii is the same gold ring with maroon coloured stone which belonged to the deceased and which was seized by the police vide seizure memo exbt. 18 and exbt. 19 m. O. Ii is the same gold ring with maroon coloured stone which belonged to the deceased and which was seized by the police vide seizure memo exbt. 19..............." (underlining mine) (ii) however, the underlined portion of his evidence where he has identified a gold ring, m. O. Ii as the one that belonged to the deceased which was seized by the police by seizure memo exhibit 19 cannot be discarded but is rather acceptable as a reliable corroborative piece of evidence. (iii) similarly, the evidence of p. W. 8 is of the same character as that of p. W. 7 when he states that – "singtam police had recovered and seized some cash and a gold ring from the possession of the accused. The same were seized after preparing two different documents wherein i have also signed as one of the witnesses..............." (iv) in the case of This witness also the only value that can be attached to his evidence is the identification of m. O. I, m. O. Ii and m. O. Ill, i.e., wrist watch, gold ring and a bunch of keys, respectively as the one seized from the appellant when he states as follows :- "............m. O. I is the same wrist watch m. O. Ii is the same gold ring and m. O. Ill collectively is the same bunch of keys which were seized by the police in my presence..............." (v) however, these apparent uncertainties in the evidence stands clarified and crystallized into certainty by the evidence of p.w.10 when he states categorically as follows:- ".............when i was at singtam police station the police were conducting body search of the accused. As far as i can now recollect the police had recovered one golden ring with a red stone and some money. Since i had seen the gold ring recovered by the police from the possession of the accused from quite a distance i cannot now properly identify if the gold ring m. O. Ii shown to me in the court today is the same gold ring but it appears to be similar to be one recovered by the police............." (underlining mine) (vi) This portion of his evidence has remained undemolished in his cross-examination and, therefore, it stands established that all seizures of the incriminating articles have been made from the person of the appellant by the singtam police on 17-9-2005. (c) circumstance 5 - disclosure statement (i) the disclosure statement of the appellant under section 27 of the indian evidence act, 1872, having not been proved appears to be erroneous on the face of the records and the evidence. The fact of the disclosure statement having been rendered by the appellant leading to the recovery of the weapon of offence being the sli-wrench m. O. Ixa and nylon rope, m. O. Xa stand fully proved by the evidence of p. W. 11 and p. W. 12 and, by such recovery having been made at the instance of the appellant. I may reproduce the relevant portion of the deposition of p. W. 11, binod kumar prasad, which reads as under :- "in the course of investigation of This case the accused had made the statement before the police regarding the weapon of offence used by him in commission of doing murder of the couple at the attc quarter on the night of the incident. The accused had stated in his statement that he could show the said articles to the police. Exbt 23 is the same statement which was made by the accused before the police and in my presence and in the presence of satish chandra prasad. Exbt. 23(a) is my signature. Witness satish chandra had also signed on the statement exbt. 23 at that time. The accused had also signed on the statement exbt. 23 in our presence. Exbt. 23(b) is the signature of the accused which was affixed in pur presence. It was after the accused having made the statement as in exbt. 23 that the police asked myself and the witness satish chandra prasad to accompany them to the attc quarter for seizure of the articles on the relevant day." (ii) while being cross-examined a statement has been extracted from This witness to the effect that 'it is true that exbt. 23 was already written by the police at singtam police station not in my presence and i was asked to put my signature therein which i accordingly did." (iii) however, the effect of such statement get belied firstly, on account of his deposition in his examination-in-chief extracted above, the later recovery of the incriminating articles at the instance of the appellant and the evidence of p. W. 12, satish chandra prasad, also a witness to the disclosure statement. I may reproduce the relevant portion of the evidence of p. W. 12 which are as follows :- "in our presence the accused made a statement to the police whereby the accused disclosed having concealed the weapon of offence used by him in murdering the couple at attc quarter at shantinagar, singtam. The accused further disclosed in his statement that he could show the said weapon of offence at the attc quarter. Exbt. 23 already marked is the said statement of the accused which was recorded by the police in our presence. Exbt. 23(c) is my signature. The accused had also signed in the statement exbt. 23 after the same was recorded. Exbt. 23 (b) is his signature. Accordingly myself and the other witness binod accompanied by the police and the accused went to the attc quarter at shantinagar, "singtam where the accused pointed out to the weapon of offence used by him in the commission of the offence connected in This case. M. O. Ix(a) is the same wheel wrench which was pointed out as the accused as being one of the weapon of offence used by him in the commission of his offence. M. O. X is the same rubber type synthetic material which was also pointed out by the accused as being the other weapon of offence used by him in strangulating the deceased in This case. The police seized the said two articles after preparing the seizure memo in my presence and in the presence of binod prasad. Exbt. 22 already marked is the same seizure memo wherein exbt. 22(b) is my signature. Cross-examined by the accused through id. Counsel shri s. S. Hamal ................it is not a fact that exbt. 23 was not recorded in my presence. I do not remember now from which floor of attc quarter m. O. X(a) was recovered by the police but it was either on 2nd or 3rd floor of the attc quarter as far as i can remember now. It is not a fact that m. O. X(a) and m. O. Ix(a) were not seized vide exbt. 22 in my presence. It is not a fact that m. O. X(a) and m. O. Ix(a) were not seized vide exbt. 22 in my presence. It is not a fact that i am deposing falsely." (iv) considering the above evidence cumulatively that of the evidence of the investigating officer, it stands fully established that the appellant had rendered the disclosure statement that led to the recovery of the incriminating articles beyond any reasonable doubt and the contention on This account also stands rejected. (v) on the principle and scope of section 27 of the indian evidence act, 1872, i may refer to the decision of suresh chandra bahri v. State of bihar, 1994 cri lj 3271 : (air 1994 sc 2420) wherein it has been laid down as under :- "71. The two essential requirements for the application of section 27 of the evidence act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when gurbanchan singh led p. W. 59 and others to the hillock where according to him he had thrown the dead body of urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of section 27 of the evidence act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant gurbachan singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence." (emphasis supplied) (vi) applying the above principle in the present case, the doubt as regards the disclosure statement having been made by the appellant stands cleared by the subsequent discovery of the articles which confirms that such statement was indeed made by the appellant. In the case of a. N. Venkatesh and another v. State of karnataka (2005) 7 scc 714 : (air 2005 sc 3809) it has been held that notwithstanding the statement under section 27 of the evidence act that may be available, the conduct of the accused becomes relevant in view of section 8 of the evidence act. I have taken This view also in crl. A. No. 11 of 2011 in the matter of son bahadur subba v. State of sikkim and have relied upon the following passage from the case of a. N. Venkatesh (air 2005 sc 3809) (supra) "9. By virtue of section 8 of the evidence act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter. That the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 or not as held by This court in prakash chand v. State (delhi admn.) Even if we should (sic) that the disclosure statement made by the accused appellants (exts. P-15 and p-16) is not admissible under section 27 of the evidence act, still it is relevant under section 8. The evidence of the investigating officer and pws. P-15 and p-16) is not admissible under section 27 of the evidence act, still it is relevant under section 8. The evidence of the investigating officer and pws. 1, 2, 7 and pw4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under section 8 as the conduct of the accused. Presence of a-1 and a-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under section 8 of the evidence act." (emphasis supplied) (vii) the principle enunciated in the above applies in full force in the facts and circumstances of the present case also and dispels any other conclusion. (7) these circumstances when considered along with the other 3 (three) circumstances set out above without any doubt form an unbroken chain leading to the only conclusion being that of the appellant having committed the murder of the deceased couple, kama bdr. Tamang and his wife bishnu maya tamang, as found by the learned trial court. (8) in the result, the appeal is dismissed. No order as to costs. The records of the court below be returned forthwith. Appeal dismissed.