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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1549 OF 2007

Charandas Swami …Appellant

Versus

State of Gujarat & Anr. …Respondents

WITH

Criminal Appeal Nos.1550 of 2007 and 1586 of 2008

J U D G M E N T

A.M. KHANWILKAR, J

1.These appeals have been filed by the Accused No.1 (Criminal

Appeal No.1586 of 2008), Accused No. 2 (Criminal Appeal No.1549

of 2007) and Accused No. 5 (Criminal Appeal No.1550 of 2007)

against the judgment and final order of the High Court of Gujarat

dated 1

st

September, 2006. The High Court has upheld the decision

of the Sessions Court, convicting Accused Nos. 1, 2, 3 and 5 for

offences under Sections 302 r/w 120-B, 364 and 201 of the Indian

Penal Code, 1860 (‘ IPC’) and for the murder of one

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Gadadharanandji. The High Court, however, has acquitted Accused

No.4 of the said offences. The High Court commuted the death

sentence awarded by the Sessions Court to a sentence of life

imprisonment for the aforementioned four accused. Accused No.3

has not filed any appeal before this Court against the impugned

judgment.

2.The factual matrix of the case in hand, as gleaned from the

pleadings and submissions of the parties as also the record, is as

under:

(a)The Board of Trustees of the Swami Narayan sect of

Vadtal Gadi Temple comprises of 8 members,

including the Chairman and Chief Kothari, who

handle the administration and financial

management of the temples run by the sect.

(b)One Gadadharanandji was elected as the Chairman

of the Board of Trustees on 11

th

April 1998. At that

point in time, one Bhakti Dasji was the Chief

Kothari and Narayan Shastri (Accused No. 1) was

the Assistant Kothari. Charandas Swami (Accused

No.2) was informally working as an assistant to

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Accused No. 1, while Madhav Prasad (Accused

No.3), Ghanshyam (Accused No.4, now acquitted)

and Vijay Bhagat (Accused No.5) were henchmen of

Accused Nos.1 and 2.

(c)On 16

th

April, 1998, an agenda was circulated for a

meeting of the Board of Trustees to be held on 22

nd

April, 1998, wherein the Chairman,

Gadadharanandji, proposed to transfer the Kotharis

away from the Vadtal Temple. That move was not

approved by the rival camp. They also feared of

being exposed of their misdeeds and

maladministration.

(d)On 3

rd

May, 1998, Gadadharanandji went missing

from the temple premises. The next day i.e. 4

th

May,

1998, a burnt body was found in a ditch at Barothi

Village, in the neighbouring State of Rajasthan

which was subsequently identified as that of

Gadadharanandji. A post mortem of the body

revealed that the cause of death was asphyxia by

strangulation.

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(e)Meanwhile, one of the deceased’s disciples, Jatin

Bhagat (PW3) filed a missing person complaint

about the sudden disappearance of

Gadadharanandji with the local police on 5

th

May,

1998. This complaint was transferred to the local

crime branch and then the state crime branch. PW3

subsequently filed a petition before the High Court

of Gujarat, which transferred the investigation of

the case to the CBI on 5

th

October 1998.

(f)The CBI eventually on 29

th

October, 1998 registered

a new FIR against some persons, including the

Appellants, for kidnapping Gadadharanandji.

During the course of investigation, all the five

accused were arrested in connection with the

disappearance of Gadadharanandji.

(g)The investigation established the chain of events

leading to the disappearance of Gadadharanandji.

According to the prosecution, the accused

kidnapped Gadadharanandji from the Vadtal

Temple complex, took him in a blue car/van to the

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Navli Temple complex where they procured a call

girl for him, after which they sedated and then

strangled him. However, this chain of events was at

odds with the panchnama drawn at the behest of

Accused No. 3 wherein he is stated to have

confessed that he himself kidnapped

Gadadharanandji from the temple, drove him to his

(Accused No. 3) house in Vadtal and then strangled

him there using the deceased’s ‘khesiya’ (cloth

usually placed around the neck). Accused No.3 also

claimed that he returned with the deceased’s body

in his car to Vadtal, informed Accused No.1 about

the deed and then took Accused No.5 along with

him to Rajasthan where they disposed of the dead

body of deceased by throwing it in a ditch and

lighting it on fire.

(h)Post-investigation, the Chief Judicial Magistrate

vide his order dated 10

th

August, 1999 remitted the

case against all the five accused. The trial proceeded

before the District and Sessions Court at Kheda at

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Hadiat, being Sessions Case No. 369 of 1999.

Various charges including those under u/S. 120-B,

364, 302 and 201 of the IPC were framed against

the Accused.

(i)On 11

th

June, 2004, the Sessions Court, Nadiad

convicted all the five accused for offence under

Section 302 r/w 120-B of the IPC and sentenced

them to death. The Accused were also convicted

u/S. 364 r/w 120-B of the IPC and sentenced to

rigorous imprisonment for life. Accused Nos. 2 and

5 were further convicted under S. 201 r/w S. 120-B

and sentenced to 5 years’ imprisonment.

(j)The accused preferred an appeal to the High Court

of Gujarat which was heard alongwith the

confirmation reference. The High Court confirmed

the conviction against Accused Nos.1, 2, 3 and 5,

but acquitted Accused No.4. The High Court,

however, commuted the death sentence to a

sentence of life imprisonment.

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3.The case of the prosecution is that the accused were

misappropriating funds from the temple in which they were

functionaries. Gadadharanandji, being the newly elected Chairman

of the Board of Trustees of the temple, intended to transfer the

accused from the Vadtal Temple. This proposal bewildered and

irked the accused. They conspired to and subsequently murdered

Gadadharanandji to put an end to his plan to transfer them. After

the murder, the accused transported the body of the deceased to

Rajasthan where they burned it to destroy the evidence.

4. We shall briefly advert to the approach of the Sessions Court

and that of the High Court. The trial court proceeded to answer the

charges against the appellants broadly on the following basis.

Firstly, it has dealt with the circumstance of motive to kidnap the

deceased with a common intention to murder. It has noted that in

April 1998, the deceased was elected as the chairman of the

Swaminarayan Temple at Vadtal. The Chief Kothari was in charge of

administration of the temple and Accused No.1 was the assistant

Kothari, helping him in administering the temple. Accused No.2,

while not holding any official post, also worked in the temple, as did

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Accused Nos. 3 to 5. The Chief Kothari was the cashier of the

temple and Accused No.1, by virtue of his position, assisted him as

a cashier. Accused No.2 was also assisting Accused No.1. Further,

the income generated by the temple was substantial and Accused

Nos. 1 and 2 were involved in financial irregularities. Since the

Chief Kothari was very old, Accused No.1 was doing all the financial

deals on his behalf. Evidence of PW39, a grocer who supplied goods

to the temple, reveals that he used to supply goods to the temple.

These transactions would obviously have been possible only with

the knowledge and approval of Accused No.1, who was in control of

the administration and financial transactions of the temple at the

relevant time. Further, PW39 gave huge amounts of cash to

Accused Nos. 1 and 2, which was corroborated in the form of bills,

and credit memos recovered from the house of Accused No.1. There

was also a large amount of unaccounted cash recovered from the

house of Accused No.2. Neither of the accused could explain the

source of such cash. The evidence brings to light that Accused Nos.

1 and 2 used to get kickbacks from purchase of goods supplied to

the temple.

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5.The trial court then found that the deceased, by virtue of being

the Chairman of the Board of Trustees, was in a position to

influence the transfer of the Kotharis and had even discussed the

same with the Board. The transfer of the Chief Kothari would

obviously have implications for the assistant Kothari i.e. Accused

No.1 and by extension, Accused No.2. Accused Nos. 1 and 2 were

aware of such a proposal to transfer the Kothari and had interacted

with the deceased about the same. Accused No.1 had gone to the

extent of telling the deceased that if he was transferred, he would

rebel against that move. While the accused suggested that there

were other persons who bore enmity towards the deceased and

wanted him killed, no evidence was brought on record to

substantiate the same by the defence. The prosecution case about

motive of the accused to commit crime was corroborated by the

evidence of PW3, PW4, PW5, PW21, PW22, PW33 and PW35. The

motive of the accused to commit the crime has thus been proved.

6. The trial court then dealt with the factum of disappearance of

deceased and last seen theory. The fact that the deceased

disappeared on the afternoon of 3

rd

May, 1998, is indisputable. This

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is corroborated by the evidence of PW8 and PW3. The evidence of

PW16 infact reveals that he had seen Accused No.3 sitting in a blue

car at the steps of the Vadtal Temple around the time the deceased

went missing. PW15 has also stated that he saw Accused No.3

driving away from the Vadtal Temple with the deceased in a blue

coloured car. PW14 also turned hostile. The court noted that even if

PW14 and PW15 had turned hostile, the totality of the evidence

including of PW64 established the fact that Accused Nos. 3 and 4

were seen lastly with the deceased on the day of the disappearance.

That was found crucial.

7. With regard to the presence of the accused at Navli, the trial

court, relying on the evidence of PW17, found that Accused No.2

bought 7 cans of cold drinks from a shop outside the Vadtal Temple

at around 2-2:30PM. The evidence of PW25, though he turned

hostile, shows that he brought along a call girl-PW49 to the Navli

Temple at around 2:30 PM on 3

rd

May, 1998; Accused No.2 met him

there at around 3:00 PM. PW48 has deposed that a call was made

by Accused No.2 to PW25 at around the same time. As the distance

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between the Vadtal and Navli Temples could be covered within

30-45 minutes, the presence of Accused No.2 at Navli is likely.

8. The trial court noticed that although PW49 has been declared

hostile, she admitted to have given her statement to the

investigating agency wherein she identified the deceased and of

having physical relations with him on the day of the murder. This

has been corroborated by an independent pancha witness.

9. The trial court has found that PW31 deposed that Accused

No.5 had taken him to Navli and shown him where the alleged

murder was committed. There, PW31 found tablets which were

used to drug the deceased. PW28, who took videos of the same also

deposed to the correctness of the video. PW20 deposed that he had

supplied the said tablets to the accused. This evidence has been

accepted as reliable.

10. The trial court then held that the motive behind the murder of

the deceased was that he was going to transfer Accused No.1 away

from the Vadtal Temple and, therefore, Accused No.1 feared losing

his control over financial matters of the temple and also of being

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exposed of the financial irregularities committed by him in the past

in relation to temple finances. The said accused, therefore, hatched

a conspiracy to kidnap the deceased with an intention to murder

him. The deceased was last seen in the company of Accused Nos.3

and 4 before he went missing from Vadtal. Accused No.5 showed

the spot where the offence was committed. The conspiracy to

commit the murder, while not proved through ocular evidence,

could be established through circumstantial evidence. While

Accused No.1 was not personally in the forefront, he is responsible

for criminal conspiracy.

11. The trial court also dealt with the evidence regarding recovery

of dead body of the deceased. It has noted that PW50 deposed that

he found a burnt body in a ditch behind his house in Barothi village

and informed the police about the same. A video of the body was

also taken by the police. The body was examined by PW57 who inter

alia noted three golden teeth and a key. Blood and skin samples of

the body were taken and subsequently identified as that of the

deceased after performing a DNA test with blood samples of his

sister. The key found on the body was similar to the one possessed

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by PW3. The said key opened the lock to the room of the deceased.

The investigating agency was informed about the spot of disposal of

the dead body by Accused No. 3 and that was corroborated by

independent witnesses. The trial court rejected the argument that

the investigating agency used witnesses who were already

pre-disposed against the accused.

12. The trial court then found that the evidence of PW57 clearly

showed that the death of the deceased was not accidental but

homicidal. The deceased had been strangulated. The argument that

since the body had suffered certain bone fractures, therefore

strangulation could not have been the method of murder, was

rejected. The Court found that any fractures on the body would

have probably occurred as a result of it being burned and also

because of the advanced age of the deceased.

13. The trial court held that the fact that the location of disposal

of the dead body was shown by Accused No.3 and that the nature of

crime was such that it involved pre-planning, indicative of

conspiracy among the accused to commit the murder.

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14. The trial court then took notice of the evidence regarding

attempted disappearance of the evidence. In that, after the incident,

the accused tried to destroy the evidence by setting the car on fire

in which they had transported the deceased and then claiming

insurance for the same as an accident case. The insurance

company rejected the said claim. The Court found that the evidence

of PW6 clearly showed that the car did not get burned due to any

accident or internal malfunction.

15. The trial court adverted to the evidence of attempt of the

Accused No.5 to dispose of a chain and pendant worn by the

deceased by approaching a goldsmith, one Jignesh Soni (PW19). In

his evidence, PW19 identified the chain and pendant and stated

that he exchanged the same with gold.

16.The trial court, on the above analysis, recorded finding of guilt

against all the five accused and was of the opinion that the offence

committed by them was not only heinous but also a rarest of rare

case warranting the death penalty. Accordingly, a death reference

was forwarded by the trial court to the High Court for confirmation.

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17.Before the High Court, besides the confirmation case, appeals

filed by the accused assailing the order of conviction and sentence

proceeded together for hearing. The High Court re-assessed and

appraised the entire evidence afresh and recorded an independent

finding of guilt against Accused Nos. 1, 2, 3, and 5. The High Court

at the outset noted that the prosecution was not supporting the

view taken by the trial court that the case would fall into the

category of rarest of rare cases warranting death penalty. After

taking note of that contention, the High Court proceeded to examine

as to whether the prosecution had proved the charges against the

Appellants beyond any reasonable doubt.

18.The High Court’s decision proceeds in the following manner:

a)In light of the judgment in Subbaiah Ambalam v

State of Tamil Nadu

1

, the High Court decided to

examine the entire evidence before it, independent of

the findings and conclusions of the trial Court. It

noted that the jurisdiction of the High Court was

1

AIR 1977 SC 2046

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co-extensive with that of the trial court in assessing,

appraising and appreciating evidence.

b)Then, adverting to the evidence of PW57 who

conducted the autopsy of the burnt body found at

Barothi, the High Court opined that the burns were

post-mortem and not ante-mortem. The fracture

found on the body was probably caused as the

deceased struggled while being strangulated or due

to mishandling of the dead body. The presence of a

fracture does not indicate that there was any other

cause of death. Death was due to asphyxia by

strangulation. The burning of the body was an

attempt to destroy the evidence. The condition of the

heart of the deceased, though disputed by the

counsel for the accused, could not rule out the

possibility that death was caused by strangulation.

c)As regards the identity of the dead body, the High

Court took note of the following:

i)PW57, who conducted the autopsy of the

dead body found at Barothi, deposed that a

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key tied with cotton thread was recovered

from near the dead body. This key opened

the lock to the room of the deceased at the

Vadtal Temple.

ii)Skin samples and teeth extracts of the

deceased were obtained and matched with

blood samples of the sister of the deceased.

DNA testing showed a biological relation

between the dead person and his sister.

iii)Three teeth of the dead body had gold caps.

PW1 deposed that he had treated the

deceased in 1993 and that he had put the

said gold caps on the teeth of the deceased

during treatment. This is corroborated by

receipts and diary entries of PW1. Certain

documentary evidence produced by the

prosecution vis-à-vis photocopies of the case

papers seemed to be exaggerated with

regard to the number of teeth treated by

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PW1. Still, the deposition of PW1 was found

to be reliable.

iv)PW20 had taken a video of the post mortem

carried out at the spot which corroborated

the items found on the body/samples taken

from the body.

d) While considering the evidence regarding the

circumstance of last seen together, the High Court

broadly noted thus:

i)The evidence of PW3 and PW8 corroborates

the fact that the deceased was present in

the Vadtal Temple on the day of his

disappearance i.e. on 3

rd

May, 1998, at

around 12:30PM. The witnesses further

stated that they had left the deceased in

his room while they went to get chappals

but by the time they returned at around

2:30PM, he had gone from the room.

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ii)PW15 deposed that around the same time,

he saw the deceased sitting with Accused

No.3 in a blue car and also that he saw the

deceased leaving with Accused No.3 in the

said blue car between 1:50PM to 2:05PM.

Even though PW15 had turned hostile, his

evidence could not be wholly disregarded.

iii)PW16 also deposed that he saw a blue car

at the steps of the Vadtal Temple around

the same time. Thus, an inference could be

drawn against the accused in whose

company the deceased was last seen and

Accused No.3 failed to rebut the same.

e) The High Court then considered the evidence

regarding the disclosure made by Accused No.3 during

interrogation. That revealed to the police that the body

of the deceased had been dumped in a spot at Barothi

village (Exh.188). This disclosure was considered

admissible u/S.27 of the Indian Evidence Act.

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f) The High Court then considered the criticism of the

defence that some of the panchas chosen by the

prosecution were hostile towards the accused owing to

prior disputes between the parties. It held that the

investigating authorities ought to have been more

careful before calling upon such persons who had a

prior history of dispute with the accused. However, the

High Court opined that the fact remains that the

panchas were called merely to complete the formalities

of preparing the panchnama. Hence, this lack of due

diligence by itself would not render their evidence

inadmissible.

g) The High Court also considered the argument of the

defence that the case of the prosecution that they found

various items such as pieces of cotton and tablet

wrappers at the place of the alleged offence, seems

highly unlikely given the time lapse between the time of

the offence and the time when the officials actually

reached that place. The High Court noted that there was

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no evidence on record to prove how such lapse of time

and weather conditions would not lead to contamination

of such articles alleged to have been found.

h) The High Court then dealt with the evidence

regarding the blue car in which the deceased was

allegedly transported to Navli and then subsequently to

Barothi village, where his dead body was found burned.

The High Court held that the prosecution has proved

that the car did not catch fire by accident but rather

was intentionally burned by the accused to destroy

traces of evidence. This has been corroborated by the

evidence of the official of the insurance company which

insured the said vehicle.

i) With reference to the evidence of procuring a call girl

for the deceased, the High Court held that the evidence

of the cellphone records clearly shows that Accused

No.2 was in contact with PW25, who allegedly procured

the call girl for the deceased. A telephone call was made

around the time of the incident, most presumably

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summoning PW25 and the call girl to the Navli Temple.

Additionally, the call girl herself PW49, identified the

picture of the deceased as the man she had been with at

the time of the incident. This fact is corroborated by

PW32. Although both PW25 and PW49 have turned

hostile, the totality of prosecution evidence corroborates

the fact that PW49 was taken to Navli by PW25.

j) The High Court also considered the argument of the

defence about the possibility of involvement of other

persons who were inimical towards the deceased and

were also named as suspects in the FIR. This argument

has been rejected owing to lack of any evidence in

support of the same. The High Court held that mere

ill-will of the persons towards the deceased cannot be a

reason to commit murder.

k) The High Court, however, held that the prosecution

failed to conclusively prove that the accused procured

specific kind of tablets for drugging the deceased.

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l) The High Court also did not accept the prosecution

evidence of Accused No.5 having approached PW19 to

exchange the gold chain and amulet of the deceased, as

conclusively proved.

m) The High Court held that the documents/receipts

found in the house of Accused No.1 proving large

amounts of financial transactions conducted on behalf

of the Vadtal Temple and purportedly bearing his

signature, have been proved. The handwriting on the

documents seemed to tally with the handwriting of

Accused No.1.

n) The High Court then examined the circumstance of

criminal conspiracy hatched by the accused. It held

that Accused No.1 was a managing trustee of the Navli

Temple Gurukul, while Accused No.2 was a trustee.

Accused No.5 was a disciple of Accused No.2, while

Accused Nos. 1 and 3 were related by virtue of being

disciples of one guru. It held that while the level of

intimacy between the accused by itself cannot prove

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much, it must be seen in the context of the fact that the

accused have been charged with conspiracy to commit

murder.

o) The High Court then found that after the deceased

proposed the transfer of the Chief Kothari, it is Accused

No.2 who conveyed the message of the head of the

temple, one Acharya Maharaj, to the deceased. Further,

on the day of the alleged incident, Accused No. 2

purposely took PW3 and PW33 out from the Vadtal

Temple to an event, after the crime had been

committed, to allay their suspicion as to the

whereabouts of the deceased. Additionally, Accused

Nos. 2 and 4 left after attending an event at Nadiad in

the evening while telling PW3 and PW33 that they would

be going to Ahmedabad/Zundal. This was presumably

to mislead them. Later, both the accused surfaced at

the Vadtal Temple.

p) The High Court found that there was clear evidence

warranting inference of conspiracy hatched among the

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accused to commit the murder of the deceased. Further,

considering the circumstances surrounding the

incident, it is clear that more than two persons were

required to carry out the crime. The fact that the

Accused No.3 led the police to the place where the body

was disposed of, links him to Accused Nos. 1 and 2.

PW15 had also seen the deceased leaving from Vadtal

with Accused No.3.

q) The High Court then noticed that the prosecution

conceded that the evidence to link Accused No.4 to the

incident was inadequate, as the material witnesses had

turned hostile. At the most, the court could infer that

Accused No.4 may have been present at Navli when the

incident occurred but this would not be sufficient to

convict him. However, while dealing with the presence

of Accused No.5 at Navli, the High Court noted that he

was present from the very beginning of the incident.

Moreover, Accused No. 5 is the disciple of Accused No.2

and was even present with him on the day of the

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incident. Accused No.5 even led the investigating

officials to the alleged room where the crime was

executed in Navli. There is no reason to disbelieve that

evidence. The High Court held that the disclosure made

by Accused No.5 was crucial in discovering the place of

murder.

r) The High Court noted that Accused No.5 was not

present at Vadtal on the night of the incident, indicating

that he was involved in disposing of the body of the

deceased. His presence with Accused No.2, his

knowledge of the murder and his conduct clearly

marked him out as a co-conspirator.

s)The High Court while considering the evidence

regarding the circumstance of motive, noted the

following aspects:

i)The seizure of large amounts of

unaccounted cash as well as the

presence of large amounts of

investments from Accused Nos.1 and 2

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goes to show the level of financial

dealings of the said accused. No

explanation has been offered by the said

accused in that regard. Obviously, the

said cash was illegally obtained. This

goes to explain the common motive

behind the actions of the accused,

namely that they perceived a threat to

their finances and control over the

administration of Vadtal Temple.

ii)The evidence adduced by the prosecution

with regard to “last seen” theory, is such

that even if there was a failure to lead

evidence as to the motive of the accused,

the fact that Accused No.3 pointed out

the place where the body of the deceased

was dumped goes to show that the crime

was committed by them.

iii)The fact that the deceased was intending

to transfer the Chief Kothari and that the

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issue was discussed between the Board

members, is clearly established.

iv)The evidence of PW5 shows that the

Chief Kothari had no fixed term and

enjoyed the benefit of his office until and

unless the Board decided otherwise. The

Board of Trustees had discussed the

proposal of the deceased with regard to

transfer of the Chief Kothari. This was a

huge concern to Accused Nos. 1 and 2,

especially since they were dealing with

the finances of the Vadtal Temple and

their position was put under threat.

t)After analyzing the relevant circumstances and the

evidence on record, the High Court found that the

prosecution had proved that the accused were amongst

the inner group which had a direct say in the financial

and administrative matters of the Board. Apprehending

their transfer, a conspiracy was hatched. Thus, there

was strong motive for the Accused No. 1 and 2 in

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particular to commit the crime. In furtherance of that

criminal conspiracy, the deceased was taken away by

Accused No. 3 in his Maruti van from Vadtal Temple. He

was taken to Navli Complex where he was done to death

and his dead body was then disposed of in Rajasthan.

After disposing of the dead body, the car used in the

commission of offence by the Accused No. 3 was set on

fire to destroy the evidence. This was obviously done to

mislead the investigating agency. The fact that large

amounts were seized from the house of Accused Nos. 1

and 2, was sufficient to draw an inference that they had

abused their position while dealing with financial

matters at Vadtal Temple.

u) The High Court accordingly recorded a finding of guilt

against Accused Nos. 1, 2, 3 and 5 for having murdered

Gadadharanandji. This conclusion has been recorded

even after noticing certain lacunae in the investigation,

but the High Court found that the same did not impact

the credibility of the prosecution case about the

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involvement of the Accused Nos.1 to 3 and 5, who have

been found guilty of the murder of deceased

Gadadharanandji.

19.These appeals were heard together. The arguments were

opened by the counsel for Accused No.2, followed by Accused No.1

and Accused No.5. Mr KTS Tulsi, learned senior counsel appearing

for Accused No.1, submitted that there is no evidence to show

either meeting of minds by the accused or intention to commit

criminal conspiracy. The prosecution’s case that the accused were

irked by the deceased’s proposal to transfer them is imaginary

because admittedly, the actual decision for transfer could be taken

only by the entire Board, comprising of 7 (seven) other members.

Eliminating a single person i.e. the deceased, would not have

helped the accused in any way. This is further substantiated by the

fact that Accused Nos. 4 and 5 were not even Kotharis and

eliminating the deceased would have served no purpose to them.

Further, there is no evidence to prove that the deceased even

proposed the transfer of the accused. The prosecution has failed to

consider the possible involvement of one Navatam/Nautam/Nutan

Page 31 31

Swami and Premswarup Swami who were inimical towards the

deceased. These two persons were named in the FIR but their

names were dropped in the eventual chargesheet filed by CBI. Their

hostile attitude towards the deceased was even recorded in the

evidence of PW3 and corroborated by PW33. The impugned

judgment also records that Navatam/Nautam/Nutan Swami failed a

lie detector test. The real perpetrators were removed from the

chargesheet but the innocent accused was charged. The alleged

motive attributed to the accused is unfounded and

unsubstantiated.

20.Mr. Tulsi further submits that certain witnesses, like PW15,

who inter alia claimed to have last seen the deceased leaving the

temple with some of the accused on the day of the alleged incident,

have turned hostile and their evidence has to be disregarded.

Despite PW15 turning hostile, part of his evidence was considered

while convicting the accused. Infact, evidence of PW11 reveals that

Accused No.3 was at home for the entire duration of the day on

which the alleged incident took place. PW11 even stated that it was

not true that Accused No.3 had taken the car out (in which the

Page 32 32

body of the deceased was allegedly transported) in the after math of

the alleged incident or that he even returned with the car. Evidence

of PW14 shows that he was present at the gate of the Vadtal Temple

but did not see any car/van going past of the make and model as

the one ascribed to the accused. Further, even PW14 has deposed

that the deceased was in the temple on the day of the incident.

Thus, the “last seen theory” falls flat.

21.Mr. Tulsi then submits that the chain of circumstances in the

present case has been broken at several places, including:

(a)The circumstances surrounding the actual kidnapping of the

deceased and the place of crime being Navli, has not been

substantiated by any evidence. Infact, PW3 states that on the day of

the alleged incident, he along with Accused Nos.2 and 4 and PW33

had gone to Nadiad by car and stayed there till 6PM. In the evidence

of PW11 and PW35, it is stated that all the accused were in Vadtal

on the day of the alleged incident. Thus, the allegation of any of the

accused kidnapping the deceased on the day of the incident has

been disproved;

Page 33 33

(b)The evidence of PW25 who allegedly brought a call girl for the

deceased at the behest of the accused, sets out that he did not even

know the Accused nor had he been given any message to bring any

girl for the deceased. Further, the evidence of the so called call girl

PW49 sets out that she did not even know PW25 and that she had

never even been to the temple where the alleged incident occurred.

She also states that she had not met any sadhu or maharaj at the

temple.

(c)PW57, the doctor who conducted the autopsy of the burnt

body, failed to establish that the cause of death was by

strangulation and further failed to clarify whether the burns on the

body were inflicted pre-mortem or post-mortem. Infact, the finding

of the post mortem report shows that the burns were pre-mortem,

thus completely destroying the prosecution’s case that the deceased

died by strangulation. Further, evidence of PW 57 reveals that the

right chamber of the heart was empty and the left chamber had

clotted blood whereas medical jurisprudence dictates that in cases

of asphyxia by strangulation, the right chamber should be full of

clotted blood and the left chamber should be empty.

Page 34 34

(d)The panchnama at the instance of Accused No.3, wherein he

inter alia disclosed the place where the body of the deceased was

burnt and dumped, is inadmissible under S. 27 of the Indian

Evidence Act. The body had already been discovered at the said

place and was a matter of public record. Accused No. 3 did not

reveal any exclusive information and thus the information in the

panchnama was inconsequential. Further, the teeth and DNA

samples of the body were not proved without reasonable doubt. Mr.

Tulsi relies upon the judgment in State of Karnataka v David

Rozari

2

to challenge the admissibility of the evidence on record.

22.Mr. Tulsi submits that the courts below ignored the

well-established principle that in a case of circumstantial evidence,

each and every circumstance has to be proved by independent,

cogent evidence and each circumstance must be connected to each

other as to complete the chain of circumstances. According to him,

none of the circumstances in the present matter have been

independently proved and there is a failure to complete the chain of

circumstances. Mr. Tulsi has also relied on the following judgments

2

(2002) 7 SCC 728

Page 35 35

to buttress his argument: Nizam v State of Rajasthan

3

, Daulat

Ram v State of Haryana

4

, Dhanraj@ Dhand v State of

Haryana

5

, Kirti Pal v State of West Bengal

6

, State of UP

through Central Bureau of Investigation v Dr. Sanjay Singh &

Anr.

7

, State of Haryana v Satender

8

, PK Narayanan v State of

Kerala

9

and Baliya alias Bal Kishan v/s State of Madhya

Pradesh

10

.

23.Mr. Huzefa Ahmadi, learned Senior Counsel, appeared for the

Accused No.2. He had opened the arguments for the appellants and

raised points some of which have already been noted earlier. He

3

(2016) 1 SCC 550

4

(2015) 11 SCC 378

5

(2014) 6 SCC 745

6

(2015) 11 SCC 178

7

1994 Supp(2) SCC 707 (Paras 15 to 19)

8

(2014) 7 SCC 291 (Paras 25, 29)

9

(1995) 1 SCC 142 (Paras 6, 7, 9)

10

(2012) 9 SCC 696 (Paras 15 to 17)

Page 36 36

submitted that the complete chain of events has not been

established by the prosecution. According to him, the deceased’s

proposal to transfer the Kotharis was dropped by the deceased

himself. Reliance has been placed in this regard on the application

made by PW3 to the High Court of Gujarat, wherein it is stated that

the deceased deferred his decision to effectuate the transfers by 6

(six) months. Infact, Navatam/Nautam/Nutan Swami and

Premswarup Swami held a grudge against the deceased owing to

the deferment as they wished to become the Kotharis in place of the

incumbents. Their names were removed from the chargesheet

without any explanation offered by the investigating agency.

Additionally, the Sessions Court in its judgment has held that

evidence of PW3 could not be considered for the purpose of

establishing motive as he did not have any personal knowledge of

the transfer of the Kotharis. Thus, no intent or motive of the

accused to commit the crime was proved.

24.With regard to the allegation that the accused were

misappropriating temple funds, Mr. Ahmadi submits that while the

prosecution relied on money seized from the houses of the accused,

Page 37 37

however, no documentary evidence has been adduced to show that

Accused No.2 had assets disproportionate to his income. Mr.

Ahmadi submits that the prosecution did not ask any questions

with respect to the alleged disproportionate income of Accused No.2

in his statement under Section 313 of Cr.P.C. and hence cannot use

that fact against him. Additionally, all the witnesses who testified

regarding Accused No.2’s alleged disproportionate income have

turned hostile. Thus, the prosecution has miserably failed to show

that Accused No.2 was misappropriating temple funds.

25.Mr. Ahmadi then submits that as regards the disappearance of

the deceased from the Vadtal Temple premises, the two witnesses

who claimed that they saw the deceased leaving with the accused,

i.e. PW14 and PW15 have turned hostile. The evidence of other

witnesses in connection with the disappearance viz of PW3, PW8

and PW16, are contradictory. The evidence of PW17 shows that

Accused No.2 was with him during his absence from the Ashram for

one hour. None of them have implicated Accused No.2 in any way

nor was it possible for Accused No.2 to be at Navli complex when

the alleged murder took place. Further, the evidence of PW64

Page 38 38

investigating officer reveals that he attempted to falsely implicate

two persons at the same time by recording statements under

Section 161 of Cr.P.C. Mr. Ahmadi also invited our attention to the

discrepancy about the age of the deceased in Exhibits 98 and 95

and contended that the record was fabricated.

26.Mr Ahmadi further submits that with reference to the

allegation that the Accused killed the deceased, several factors belie

the prosecution case. The panchnama drawn at the instance of

Accused No.3 clearly sets out that Accused No.3 himself took the

deceased to his house in Vadtal and strangled him there. No

panchnama of house of Accused No.3 was recorded. Certain other

factors, such as the fact that the deceased left behind his walking

stick at Vadtal Temple which was regularly used by him and

without which he could not walk on his own, discrepancies in the

witness statements regarding the time of the alleged kidnapping,

that the deceased could not have physically picked up the call girl

in his room owing to his advanced age etc., all go to show that the

prosecution’s case is replete with figment of imagination. The

Sessions Court clearly records that Accused No.2 was not present

Page 39 39

at the time when the alleged kidnapping took place. Further, the

panchnama does not even make a mention of the alleged call girl

who was present in the deceased’s room. Thus, the allegation that

Accused Nos. 2 to 5 took the deceased to the Navli Temple complex

and murdered him there, is completely false and not borne out by

the evidence on record.

27.Mr. Ahmadi submits that the prosecution’s case about

disposal of the deceased’s body is also riddled with inaccuracies

and errors. The panchnama drawn at the instance of Accused No.3,

wherein he revealed about the commission of crime and the

disposal of the deceased’s body, is inadmissible and in any case

cannot be used against other accused. Further, the panchnama

suffers from factual and procedural inaccuracies, a fact noticed in

the impugned judgment by the High Court for disregarding part one

and part three of the same as inadmissible. As regards the

identification of the deceased’s body is concerned, Mr. Ahmadi

submits that the evidence on record and the deposition by the

doctor PW1 clearly show that the prosecution has fabricated the

dental records of the deceased in an attempt to establish that the

Page 40 40

burnt body found in Rajasthan was that of the deceased. The High

Court took note thereof in the impugned Judgment, but disregarded

the same as immaterial.

28.Mr. Ahmadi finally submits that Accused No.2 has no links

with the criminal conspiracy to murder the deceased. The

panchnama prepared at the instance of Accused No. 3 does not

even mention the role or involvement of Accused No.2. The

panchnama prepared at the instance of Accused No.5 deserved to

be disregarded owing to contradictory statements therein. The

Sessions Court has recorded that Accused No.2 did not even hold

an official post at the temple. Further, Accused No.2 was arrested

without there being any sufficient proof against him and the

prosecution went to the extent of fabricating documents to implicate

him, as recorded in the impugned judgment. For the aforesaid

reasons, the prosecution’s case against Accused No.2 has not been

proved beyond reasonable doubt. He pointed out that material facts

were not put to the accused whilst recording his statement under

Section 313 and, therefore, these facts cannot be made the basis for

recording a finding of guilt against the accused. He has also

Page 41 41

produced a table in his written submissions, pointing out the

discrepancies in the judgment of the trial court and the impugned

judgment of the High Court. Mr. Ahmadi has filed elaborate written

submissions. We treat the same as his argument. Mr. Ahmadi has

relied upon the decisions in the cases of Pulukuri Kottaya and

others v. Emperor

11

, Mohmed Inayatullah v. The State of

Maharashtra

12

, and State of Himachal Pradesh v. Jeet Singh

13

.

29.Mr. D.N. Ray, appeared for Accused No.5. He submits that the

impugned Judgment is perverse as some of the primary findings

recorded therein are diametrically opposite to the case set out by

the prosecution and the findings recorded by the Sessions Court.

Mr. Ray submits that the time of death of the deceased, as set out

by the prosecution and as accepted by the Sessions Court, was

between 3 PM to 4:30 PM whereas the High Court has assumed the

time of death to be between 5 PM to 7 PM. This discrepancy arises

11

AIR (1934) 1947 Privy Council 67 (Paras 10 & 11)

12

1976 (1) SCC 828 (Paras 12 to 16)

13

1999 (4) SCC 370 (Para 27)

Page 42 42

out of the prosecution’s failure to establish the time of death of the

deceased.

30.Mr. Ray then submits that the prosecution’s case, as accepted

by the trial Court, is that the deceased was administered sleeping

pills to render him unconscious after which Accused Nos. 3 to 5

strangulated him while Accused No.2 was guarding the room from

outside. The High Court, however, has recorded that the

prosecution fabricated evidence and planted the sleeping pills. More

importantly, the High Court has changed the narrative of the

prosecution and recorded that the deceased was smothered by a

pillow, not strangulated. No basis for such change in narrative is

forthcoming. Further, the prosecution’s case draws support from

two different panchnamas drawn by Accused No.3 and Accused No.

5, both of which are contradictory to each other. Infact, panchnama

drawn at the instance of Accused No.3 does not even set out a case

against Accused No.5. Finally, the entire case against Accused No.3

rests on the link that he was seen along with the deceased while

leaving the Vadtal Temple complex in the car/van. This link is

propagated by a sole witness, PW15 who claims to have seen

Page 43 43

Accused No.3. PW15, however, has been declared hostile. In his

cross examination, he stated that he had only seen a white car and

could not see who was sitting therein. The above discrepancies are

fatal to the prosecution case as it puts forth a new case without

affording the accused an opportunity to counter the same.

31.Mr. Ray also submits that the innocence of Accused No.5 can

be inferred from the fact that no charges were levelled against him

at the initial stages. Even the FIR filed by the CBI did not contain

his name. Accused No.5 was far removed from the main accused

and was a stranger to the criminal conspiracy alleged by the

prosecution.

32.Finally, Mr. Ray submits that the presence of Accused No.5 at

the stated place of offence at Navli, was spoken by PW17. But he

was contradicted in cross examination. The evidence of PW35 infact

mentions that Accused No.5 was at Vadtal at the time when the

offence was committed at Navli. Further, the High Court has

contradicted itself by first inferring from a panchnama that Accused

No.5 was present at the place of the offence only to subsequently

Page 44 44

state that the panchnama could only be accepted in part and was

only true to the extent that it proved that the deceased was taken

from Vadtal to Navli. The only way that the High Court inferred the

involvement of Accused No.5 was his alleged presence at Navli

because he was not seen at Vadtal. This reasoning is a case of gross

perversity. The contradictory finding recorded by the High Court

has seriously affected the admissibility of the panchnama. At the

most, contends learned counsel, the Accused No.5 can be

proceeded against for disposing of the deceased’s body and not for

murdering him. Mr. Ray has relied on the decisions in the cases of

H.D. Sikand (D) Through L.R.S. v/s Central Bureau of

Investigation and Anr.

14

, Hodge’s Case

15

and Pawan Kumar Vs.

State of Haryana

16

.

33.In reply, Ms. Kiran Suri, learned Senior Counsel appearing for

the prosecution, first submits that the accused had conspired with

14

2016 (12) Scale 892 (Paras 15, 18)

15

English Reports 168 Crown Cases, Liverpool Summer Assizes, 1838

16

(2003) 11 SCC 241

Page 45 45

each other to murder the deceased and that their conviction by the

lower Courts is based on the evidence available on record. Ms. Suri

also submits that the chain of circumstances proving the guilt of

the accused has been established and proved through the various

witnesses.

34.With regard to the guilt of the accused in appeal, Ms. Suri

submits that there cannot be direct evidence of hatching a criminal

conspiracy and the same has to be reasonably inferred from the

evidence. In the present case, the prosecution has proved the guilt

of the accused on the basis of motive, ‘last-seen’ theory, place of

murder and disposal of body, panchnama at the instance of

Accused No.5, recovery of the body of the deceased and conduct of

Accused No.3.

35.Ms. Suri submits that it is indisputable that Accused No.1 was

the Assistant Kothari of the temple and Accused No.2 was assisting

him. From the circumstantial evidence and considering the

unaccounted money found at their house/in their bank accounts, it

is apparent that Accused Nos.1 and 2 were involved in financial

irregularities of the temple funds and that their continuation at

Page 46 46

Vadtal was threatened by the deceased’s proposal to transfer the

Kotharis out of the Vadtal Temple. Thus, there was clear

apprehension in the minds of Accused Nos. 1 and 2 that they would

be replaced. Ms. Suri in support of this argument has relied on the

evidence of PW3, PW5, PW21, PW22, PW33, PW35, PW36, PW37,

PW39, PW40 and PW41. Further, contends Ms. Suri that the

accused have not been able to give any explanation for the huge

amounts of money found in their accounts and at their houses. In

this regard, Ms. Suri relies upon the evidence of PW22, PW35 and

PW39.

36.On the issue of the ‘last-seen’ theory, Ms. Suri submits that

the evidence of PW16 clearly establishes that he saw Accused No.3

near the room of the deceased on the day and at the time he went

missing. Further, PW16 states that he initially saw the blue car (in

which the deceased was taken away) near the temple steps and

later, the said blue car, along with Accused No.3, had disappeared.

This has been substantiated by the evidence of PW15 wherein he

claims that he saw Accused No.3 with the deceased at the relevant

time, even though PW15 has turned hostile. Further, the car used

Page 47 47

to take away the deceased was subsequently put on fire to mislead

the investigating agency. Ms. Suri also relies upon the evidence of

PW3, PW8, PW14 and PW48 in this regard.

37.With regard to the actual murder of the deceased, Ms. Suri

submits that the crucial evidence is panchnama (Exh. 198)

prepared at the instance of Accused No.5. He has admitted to the

place of the crime and Accused No.3 showed the police where the

body of the deceased had been disposed of. Further, the evidence of

PW25 who brought the call girl and the evidence of PW49 the call

girl summoned by the accused for the deceased, also establishes

the presence of the accused at the place and time of the crime.

PW49 has stated that she saw Accused No.2 at the Navli Temple

complex when she was summoned there and that she had physical

relations with the deceased after that. Again, while both PW25 and

PW49 have turned hostile, their evidence clearly establishes the

presence of the various accused at the place and time of the alleged

murder. Further, panchnama clearly establishes that the deceased

was strangulated in a room at Navli while Accused No.2 waited

outside the room. Additionally, the statement made by PW20 that

Page 48 48

Accused No.2 bought tablets from him, which were then used to

sedate the deceased before the murder, is also established by the

prosecution.

38.Ms. Suri then submits that panchnama drawn at the instance

of Accused No.3 and the statement given to the police was an

attempt to mislead the prosecution from the real events that

unfolded. The panchnama sets out the real incident wherein the

deceased was murdered at Navli and not at Vadtal as claimed by

Accused No.3. Accused No.3 possessed the car/van which was

subsequently found in a burnt state in the garage of PW13. A false

insurance claim was lodged regarding the accident to the car, which

was rejected. Pertinently, Accused No.3 has not been able to explain

what happened to the car.

39.Ms. Suri finally submits that the prosecution has clearly

proved the recovery of the deceased’s body and its identification.

PW50 has deposed that he found the burnt body in a ditch at

Barothi Village, Rajasthan. It has been proved that the said body

was of the deceased through DNA testing and by the presence of

gold caps on the teeth of the body. This has been corroborated by

Page 49 49

PW1, the doctor who put the caps on the teeth of the accused.

Thus, the chain of events is complete in the present case so as to

leave no manner of doubt regarding the guilt of the accused. She

submits that this Court should be loath to interfere with the

concurrent findings of guilt recorded by the two Courts against the

appellants herein. Ms. Suri has relied upon the reported decisions

in the cases of Pandurang Kalu Patil and Another v. State of

Maharashtra

17

, State (NCT of Delhi) v. Navjot Sandhu alias Afsan

Guru

18

, Udai Bhan v. State of U.P.

19

, State of Maharashtra v.

Damu

20

, H.P. Admn. v. Om Prakash

21

and Vasanta Sampat

Dupare v. State of Maharashtra

22

.

17

2002 (2) SCC 490 (Paras 14 & 15)

18

2005 (11) SCC 600 (Paras 114, 115 to 118, and 120 to 144)

19

1962 Supp (2) SCR 830

20

2000 (6) SCC 269 (Para 37)

21

1972 (1) SCC 249

22

(2015) 1 SCC 253 (Paras 23 to 29)

Page 50 50

40.We have thus heard the learned counsel appearing for the

respective parties at length. With their able assistance we have also

examined the relevant record, the judgments rendered by the two

Courts and the reported decisions cited by them during arguments.

The prosecution case hinges on circumstantial evidence. The

following circumstances have been pressed into service by the

prosecution:

(i)Motive;

(ii)“Last seen” in the company of Accused No. 3;

(iii)Murder of deceased at Navli complex and disposal

of the dead body in Rajasthan;

(iv)Panchnama drawn on the basis of disclosure made

by Accused No. 5;

(v)The recovery of dead body and its identification;

(vi)The discovery of location, on the basis of disclosure

made by Accused No.3, where the dead body was

dumped;

(vii)Conduct of Accused No. 3 to mislead the

investigation;

(viii)Criminal conspiracy to commit the crime.

41. In all, five accused were put on trial. Accused No. 4 has been

acquitted by the High Court. The prosecution has not challenged

the acquittal of Accused No. 4. In fact, from the judgment of the

High Court it is evident that the prosecution in all fairness

Page 51 51

conceded that the evidence against Accused No. 4 was insufficient.

As regards Accused No. 3, both the courts have found that the

prosecution succeeded in establishing the guilt of Accused No. 3. As

a result, he has been convicted by the trial court and the finding of

guilt against him has been affirmed by the High Court. Accused

No. 3 has not filed any appeal against his conviction. That leaves

us to consider the case against Accused Nos. 1, 2 and 5 in the

present appeals.

42.Before we embark upon the points urged by the counsels

appearing for the respective appellants, it may be apposite to bear

in mind the settled legal position about the quality of evidence

required for recording a finding of guilt against the accused in

respect of circumstantial evidence. (See decisions relied by the

Appellants, Paras 15 to 19 of Dr. Sanjay Singh (supra), Para 18 of

H.D. Sikand (supra); and Sharad Birdhichand Sarda v. State of

Maharashtra

23

). At the same time, we must remind ourselves of the

settled legal position that this Court should be loath to overturn the

23

(1984) 4 SCC 166

Page 52 52

concurrent findings of fact recorded by the two Courts unless the

same are found to be palpably untenable or perverse.

43.In this backdrop, we shall now examine the findings recorded

by the two Courts with reference to the relevant circumstances on

the basis of which finding of guilt has been recorded against the

appellants. The first such circumstance is about the presence of

Gadadharanandji at the Vadtal Temple complex at around 12:30 -

12:45 P.M. on 03.05.1998. Both the Courts have concurrently

found that the prosecution has succeeded in establishing the fact

that Gadadharanandji returned to the Vadtal Temple at around

12:30 - 12:45 P.M. This has been stated by PW3 who was present in

the room of Gadadharanandji at the relevant time. After

Gadadharanandji returned, PW3 pressed his legs for about half an

hour and left the room at around 1:00 P.M. PW3 returned to the

room at around 2:00 - 2:30 P.M. and noticed that the turban and

walking stick of Gadadharanandji were left behind in the room but

Gadadharanandji himself was not seen around. PW 8 has also

deposed that on the day of the incident, he had reached the Vadtal

Temple complex/residence of Gadadharanandji at around 11:00

Page 53 53

A.M. At that time, PW3 and PW33 were also present. PW8 has also

stated that Gadadharanandji arrived at the Vadtal Temple in a

vehicle about half an hour later, after which PW3 and he went

inside the room of Gadadharanandji and PW3 pressed his legs. At

that time he (PW8) sat on the sofa and read some paper. PW33 has

also deposed that on the day of incident, he was at the Vadtal

Temple complex when Gadadharanandji left for ‘Khandli’ (Khanjali)

village at around 8:00 A.M. and returned to the temple at 12:00 -

12:30 P.M. PW16 has also deposed that on the day of incident at

around 1:00 - 1:15 P.M., he entered the room of Gadadharanandji

along with one Gandalal and served him for five minutes before

leaving the room. From the evidence of these witnesses, the

presence of Gadadharanandji at Vadtal Temple complex on

03.05.1998 between 12:00 - 1:30 P.M. is indisputable. No serious

argument has been advanced to challenge this factual position.

44.The argument of the appellants, however, is that there is no

credible evidence regarding the manner of disappearance of

Gadadharanandji on 03.05.1998 after 1:30 P.M. For, the

prosecution has not produced any direct evidence regarding the

Page 54 54

manner of disappearance of Gadadharanandji from the Vadtal

Temple, as to whether he was forcibly kidnapped from his room or

coaxed to go to the Navli Temple complex by the accused. However,

the prosecution has certainly produced evidence to establish the

fact that Gadadharanandji was seen along with Accused No.3 in a

car, leaving the Vadtal Temple. The Trial Court as well as the

Appellate Court have relied upon the evidence of PW15 and 16, for

having established the aforesaid fact. The prosecution has also

relied on the evidence of PW3 and PW14. But PW3 does not claim to

have personally seen Gadadharanandji leaving the room along with

any person, much less Accused No.3. He could not have witnessed

that event as he had gone out to fetch chappals and by the time he

returned at 2:00 - 2:30 P.M., Gadadharanandji was not seen in his

room. PW14 was examined to establish the fact under

consideration. However, he turned hostile. In his statement given

to the investigating agency, he claimed to have seen the deceased

leaving the Vadtal Temple in a blue car but in his evidence before

the Court later changed his stance by saying that he never saw

such a car. However, the prosecution has been able to establish

from the totality of the evidence that Gadadharanandji was seen

Page 55 55

going in a car from Vadtal Temple. PW15, who also turned hostile,

initially deposed that he saw the deceased leaving the Vadtal

Temple with Accused No.3 in a blue car but subsequently stated

that he had seen a white colour Maruti car coming out of the temple

gate with “Swami” sitting in the front. Be it noted that Accused

No.3 did not cross examine PW15 or challenged the version of his

presence at the spot spoken by this witness in any manner. The

Courts below have accepted the version of PW15 to the limited

extent of having seen the deceased going out of the Vadtal Temple

in a car along with Accused No.3. The fact that Accused No.3 was

sitting in the blue colour car parked near the steps of Sabha

Mandap at the relevant time has been corroborated by the evidence

of PW16. The courts below have accepted the evidence of PW16 as

truthful and reliable. The criticism by the appellants, however, is

that the presence of PW16 has not been spoken either by PW3 or by

PW8. From the evidence of PW16, however, it is seen that PW16

arrived at the room of Gadadharanandji at around 1:00 P.M. - 1:15

P.M. when PW3 and PW8 had already left. PW16 along with one

Gandalal remained inside the room of Gadadharanandji for some

time and he (PW16) served him for around five minutes before

Page 56 56

leaving the room. PW16 thereafter went to the nearby machine

room from where he saw a blue colour car parked near the steps of

the temple, in which Accused No.3 was sitting. He then went to

sleep and when he woke up around 2:00 - 2:20 P.M., the said blue

car and Accused No.3 was not seen. The Courts below after

analyzing this evidence, have recorded a concurrent finding

including by weighing the admissible part of the evidence of hostile

witnesses and of PW16. The view so taken cannot be said to be

perverse. The Trial Court found that the evidence given by the above

named witnesses was reliable atleast with regard to the manner of

disappearance of Gadadharanandji from Vadtal Temple. The

discrepancy in the evidence of these witnesses has been considered

by the Trial court before it recorded the finding on the circumstance

under consideration. Even the Appellate Court reached at the same

conclusion independently. Both the Courts have analysed the

evidence and after sifting the irrelevant or inadmissible part

therefrom, found that the evidence was sufficient to answer the

circumstance against the appellants. The two Courts have held that

Gadadharanandji was last seen together with Accused No.3 leaving

the Vadtal Temple complex in a blue car and that he was not seen

Page 57 57

thereafter until his dead body was found on 4

th

May, 1998 (i.e. next

day of disappearance) at Barothi village in the neighbouring state of

Rajasthan. This finding arrived at by the Courts below is

unassailable. It is neither perverse nor warrants interference by this

Court.

45.The dead body of deceased Gadadharanandji was found on 4th

May, 1998 in a burnt condition in a ditch behind the house of

PW50 in Barothi village in Rajasthan. How the dead body of

Gadadharanandji reached that spot was revealed by none other

than Accused No.3. In what circumstances burnt injuries were

caused on the dead body of Gadadharanandji, no prosecution

witness has spoken about that. Be that as it may, the fact that the

dead body recovered from Barothi village on 4

th

May, 1998 was that

of Gadadharanandji could be known only after Accused No.3,

during the course of investigation, made a disclosure about the

location where he had disposed of the dead body of

Gadadharanandji. Till the aforesaid disclosure was made, in the

records of the Rajasthan police, the dead body was noted as that of

an unknown person. If, the Accused No.3 had not disclosed to the

Page 58 58

Investigating Officer about the location where the dead body was

dumped by him - which information was personally known to him

and at best Accused No.5 and none else, then the investigation

would not have made any headway. The disclosure made by

Accused No.3 to the investigating officer was recorded in the

panchanama Exh. 188, when he had led the police party to the spot

where the dead body was dumped by him. That location matched

with the location from where the dead body of an unknown person

was recovered on 4

th

May, 1998 on the information given by PW50

to the local police at Barothi. The fact that the dead body was

already recovered from the same place on 4

th

May, 1998 and so

noted in the public records in the State of Rajasthan does not

undermine the admissibility of the disclosure made by Accused

No.3 to the investigating officer about the location where the dead

body of Gadadharanandji was dumped by him, which information

was exclusively within the personal knowledge of Accused No. 3.

The fact that the dead body recovered on 4

th

May 1998 was of

Gadadharanandji, was unraveled and discovered only after the

results of its medical examination became available to the

investigating agency. Till then, it was considered to be of an

Page 59 59

unknown person. The Courts below have accepted the case of the

prosecution that the disclosure made by Accused No.3 about the

location where the dead body of Gadadharanandji was dumped by

him, was admissible under Section 27 of the Evidence Act. The

appellants, however, take exception to that by relying on the

reported decisions. In our view, the decision in the case of Navjot

Sandhu (Supra) has adverted to all the previous decisions and

restated the legal position. In paragraph 114, while considering the

arguments advanced by the parties regarding the sweep of Section

27 of the Evidence Act, the Court formulated two questions which

read thus:

“(i) Whether the discovery of fact referred to in Section 27 should

be confined only to the discovery of a material object and the

knowledge of the accused in relation thereto or the discovery could

be in respect of his mental state or knowledge in relation to certain

things — concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by

the person making the disclosure or directly at his instance. The

subsequent event of discovery by the police with the aid of

information furnished by the accused — whether can be put

against him under Section 27.”

Page 60 60

In the context of these questions, the argument of the counsel for

the State in that case has been adverted to in paragraphs 115 to

118. The Court then after analyzing Section 27 of the Evidence Act,

in paragraphs 120 to 144 adverted to the relevant decisions on the

point. In paragraphs 120 and 121, the Court noted thus:

“120. The history of case-law on the subject of confessions

under Section 27 unfolds divergent views and approaches. The

divergence was mainly on twin aspects: (i) Whether the facts

contemplated by Section 27 are physical, material objects or

the mental facts of which the accused giving the information

could be said to be aware of. Some Judges have gone to the

extent of holding that the discovery of concrete facts, that is to

say material objects, which can be exhibited in the Court are

alone covered by Section 27. (ii) The other controversy was on

the point regarding the extent of admissibility of a disclosure

statement. In some cases a view was taken that any

information, which served to connect the object with the offence

charged, was admissible under Section 27. The decision of the

Privy Council in Kottaya case which has been described as a

locus classicus, had set at rest much of the controversy that

centred round the interpretation of Section 27. To a great extent

the legal position has got crystallised with the rendering of this

decision. The authority of the Privy Council’s decision has not

been questioned in any of the decisions of the highest court

either in the pre-or post-independence era. Right from the

1950s, till the advent of the new century and till date, the

passages in this famous decision are being approvingly quoted

and reiterated by the Judges of this Apex Court. Yet, there

remain certain grey areas as demonstrated by the arguments

advanced on behalf of the State.

121. The first requisite condition for utilising Section 27 in

support of the prosecution case is that the investigating police

officer should depose that he discovered a fact in consequence

of the information received from an accused person in police

custody. Thus, there must be a discovery of fact not within the

Page 61 61

knowledge of police officer as a consequence of information

received. Of course, it is axiomatic that the information or

disclosure should be free from any element of compulsion. The

next component of Section 27 relates to the nature and extent

of information that can be proved. It is only so much of the

information as relates distinctly to the fact thereby discovered

that can be proved and nothing more. It is explicitly clarified in

the section that there is no taboo against receiving such

information in evidence merely because it amounts to a

confession. At the same time, the last clause makes it clear

that it is not the confessional part that is admissible but it is

only such information or part of it, which relates distinctly to

the fact discovered by means of the information furnished.

Thus, the information conveyed in the statement to the police

ought to be dissected if necessary so as to admit only the

information of the nature mentioned in the section. The

rationale behind this provision is that, if a fact is actually

discovered in consequence of the information supplied, it

affords some guarantee that the information is true and can

therefore be safely allowed to be admitted in evidence as an

incriminating factor against the accused. As pointed out by the

Privy Council in Kottaya case64: (AIR p. 70, para 10)

“clearly the extent of the information admissible must depend

on the exact nature of the fact discovered”

and the information must distinctly relate to that fact.

Elucidating the scope of this section, the Privy Council

speaking through Sir John Beaumont said: (AIR p. 70, para 10)

“Normally the section is brought into operation when a person

in police custody produces from some place of concealment

some object, such as a dead body, a weapon, or ornaments,

said to be connected with the crime of which the informant is

accused.”

We have emphasised the word “normally” because the

illustrations given by the learned Judge are not exhaustive.

The next point to be noted is that the Privy Council rejected the

argument of the counsel appearing for the Crown that the fact

discovered is the physical object produced and that any and

every information which relates distinctly to that object can be

proved. Upon this view, the information given by a person that

the weapon produced is the one used by him in the

commission of the murder will be admissible in its entirety.

Page 62 62

Such contention of the Crown’s counsel was emphatically

rejected with the following words: (AIR p. 70, para 10)

“If this be the effect of Section 27, little substance would

remain in the ban imposed by the two preceding sections on

confessions made to the police, or by persons in police custody.

That ban was presumably inspired by the fear of the

legislature that a person under police influence might be

induced to confess by the exercise of undue pressure. But if all

that is required to lift the ban be the inclusion in the confession

of information relating to an object subsequently produced, it

seems reasonable to suppose that the persuasive powers of

the police will prove equal to the occasion, and that in practice

the ban will lose its effect.”

Then, Their Lordships proceeded to give a lucid exposition of

the expression “fact discovered” in the following passage,

which is quoted time and again by this Court: (AIR p. 70, para

10)

“In Their Lordships’ view it is fallacious to treat the ‘fact

discovered’ within the section as equivalent to the object

produced; the fact discovered embraces the place from which

the object is produced and the knowledge of the accused as to

this, and the information given must relate distinctly to this

fact. Information as to past user, or the past history, of the

object produced is not related to its discovery in the setting in

which it is discovered. Information supplied by a person in

custody that ‘I will produce a knife concealed in the roof of my

house’ does not lead to the discovery of a knife; knives were

discovered many years ago. It leads to the discovery of the fact

that a knife is concealed in the house of the informant to his

knowledge, and if the knife is proved to have been used in the

commission of the offence, the fact discovered is very relevant.

But if to the statement the words be added ‘with which I

stabbed A’ these words are inadmissible since they do not

relate to the discovery of the knife in the house of the

informant.”

(emphasis supplied)

46.This Court has restated the legal position that the facts need

not be self-probatory and the word “fact” as contemplated by

Page 63 63

Section 27 is not limited to “actual physical material object”. It

further noted that the discovery of fact arises by reason of the fact

that the information given by the accused exhibited the knowledge

or the mental awareness of the informant as to its existence at a

particular place. In paragraph 128, the Court noted the statement

of law in Udai Bhan (Supra) that, “A discovery of a fact includes the

object found, the place from which it is produced and the knowledge

of the accused as to its existence.” The Court then posed a question

as to what would be the position if the physical object was not

recovered at the instance of the accused. That issue has been

answered on the basis of precedents, as can be discerned from

Paragraphs 129 to 132 of the reported judgment. In paragraph 139,

the Court noticed the decision in the case of Damu (Supra) which

had dealt with the case where broken glass piece was recovered

from the spot matched with broken tail lamp and in paragraph 37

of that decision, the Court observed thus:

“37. How did the particular information lead to the discovery

of the fact? No doubt, recovery of dead body of Dipak from the

same canal was antecedent to the information which PW 44

obtained. If nothing more was recovered pursuant to and

subsequent to obtaining the information from the accused, there

would not have been any discovery of any fact at all. But when

Page 64 64

the broken glass piece was recovered from that spot and that

piece was found to be part of the tail lamp of the motorcycle of A-2

Guruji, it can safely be held that the investigating officer

discovered the fact that A-2 Guruji had carried the dead body on

that particular motorcycle up to the spot.”

(emphasis supplied).

The Court then noted that the above view taken in Damu’s

case does not make it a dent on the observations made and the

legal position spelt out in Om Prakash (supra) which distinguishes

Damu’s case because there was discovery of a related physical

object at least in part. We may usefully reproduce paragraph

No.142 to 144 of the same reported decision, wherein the Court

observed thus:

“142. There is one more point which we would like to

discuss i.e. whether pointing out a material object by the

accused furnishing the information is a necessary

concomitant of Section 27. We think that the answer should

be in the negative. Though in most of the cases the person

who makes the disclosure himself leads the police officer to

the place where an object is concealed and points out the

same to him, however, it is not essential that there should

be such pointing out in order to make the information

admissible under Section 27. It could very well be that on

the basis of information furnished by the accused, the

investigating officer may go to the spot in the company of

other witnesses and recover the material object. By doing

so, the investigating officer will be discovering a fact viz. the

concealment of an incriminating article and the knowledge

of the accused furnishing the information about it. In other

Page 65 65

words, where the information furnished by the person in

custody is verified by the police officer by going to the spot

mentioned by the informant and finds it to be correct, that

amounts to discovery of fact within the meaning of Section

27. Of course, it is subject to the rider that the information

so furnished was the immediate and proximate cause of

discovery. If the police officer chooses not to take the

informant accused to the spot, it will have no bearing on the

point of admissibility under Section 27, though it may be

one of the aspects that goes into evaluation of that

particular piece of evidence.”

“143. How the clause “as relates distinctly to the fact

thereby discovered” has to be understood is the next point

that deserves consideration. The interpretation of this

clause is not in doubt. Apart from Kottaya case various

decisions of this Court have elucidated and clarified the

scope and meaning of the said portion of Section 27. The

law has been succinctly stated in Inayatullah case.

Sarkaria, J. analysed the ingredients of the section and

explained the ambit and nuances of this particular clause in

the following words: (SCC p. 832, para 12)

“The last but the most important condition is that only ‘so

much of the information’ as relates distinctly to the fact

thereby discovered is admissible. The rest of the information

has to be excluded. The word ‘distinctly’ means ‘directly’,

‘indubitably’, ‘strictly’, ‘unmistakably’. The word has been

advisedly used to limit and define the scope of the provable

information. The phrase ‘distinctly relates to the fact thereby

discovered’ is the linchpin of the provision. This phrase

refers to that part of the information supplied by the

accused which is the direct and immediate cause of the

discovery. The reason behind this partial lifting of the ban

against confessions and statements made to the police, is

that if a fact is actually discovered in consequence of

information given by the accused, it affords some guarantee

of truth of that part, and that part only, of the information

which was the clear, immediate and proximate cause of the

discovery. No such guarantee or assurance attaches to the

rest of the statement which may be indirectly or remotely

related to the fact discovered.”

Page 66 66

In the light of the legal position thus clarified, this Court

excluded a part of the disclosure statement to which we

have already adverted.

144. In Bodhraj v. State of J&K this Court after referring to

the decisions on the subject observed thus: (SCC p. 58, para

18)

“The words ‘so much of such information’ as relates

distinctly to the fact thereby discovered, are very important

and the whole force of the section concentrates on them.

Clearly the extent of the information admissible must

depend on the exact nature of the fact discovered to which

such information is required to relate.”

(emphasis supplied)

47.Reliance was also placed on the recent decision of this Court

in the case of Dupare (supra). The Court adverted to the relevant

precedents and observed thus, in paragraphs 23 to 29:-

“23. While accepting or rejecting the factors of discovery,

certain principles are to be kept in mind. The Privy Council

in Pulukuri Kotayya v. King Emperor has held thus: (IA p.77)

“… it is fallacious to treat the 'fact discovered'

within the section as equivalent to the object

produced; the fact discovered embraces the place

from which the object is produced and the

knowledge of the accused as to this, and the

information given must relate distinctly to this fact.

Information as to past user, or the past history, of

the object produced is not related to its discovery in

the setting in which it is discovered. Information

supplied by a person in custody that 'I will produce

a knife concealed in the roof of my house' does not

lead to the discovery of a knife; knives were

discovered many years ago. It leads to the

discovery of the fact that a knife is concealed in the

house of the informant to his knowledge, and if the

knife is proved to have been used in the

Page 67 67

commission of the offence, the fact discovered is

very relevant. But if to the statement the words be

added 'with which I stabbed A', these words are

inadmissible since they do not relate to the

discovery of the knife in the house of the informant.

24. In Mohmed Inayatullah v. The State of Maharashtra, while

dealing with the ambit and scope of Section 27 of the Evidence

Act, the Court held that:

“11. Although the interpretation and scope of

Section 27 has been the subject of several

authoritative pronouncements, its application to

concrete cases is not always free from difficulty. It

will therefore be worthwhile at the outset, to have a

short and swift glance at the section and be

reminded of its requirements. The section says:

27. How much of information received from

accused may be proved.- Provided that, when any

fact is deposed to as discovered in consequence of

information received from a person accused of any

offence, in the custody of a police officer, so much

of such information, whether it amounts to a

confession or not, as relates distinctly to the fact

thereby discovered may be proved.

12. The expression "provided that" together with

the phrase "whether it amounts to a confession or

not" show that the section is in the nature of an

exception to the preceding provisions particularly

Sections 25 and 26. It is not necessary in this case

to consider if this section qualifies, to any extent,

Section 24, also. It will be seen that

the first condition necessary for bringing this

section into operation is the discovery of a fact,

albeit a relevant fact, in consequence of the

information received from a person accused of an

offence. The second is that the discovery of such

fact must be deposed to. The third is that at the

time of the receipt of the information the accused

must be in police custody. The last but the most

important condition is that only "so much of the

information" as relates distinctly to the

Page 68 68

fact thereby discovered is admissible. The rest of

the information has to be excluded. The word

"distinctly" means "directly", "indubitably",

"strictly", "unmistakably". The word has been

advisedly used to limit and define the scope of the

provable information. The phrase "distinctly relates

to the fact thereby discovered" is the linchpin of the

provision. This phrase refers to that part of the

information supplied by the accused which is

the direct and immediate cause of the discovery.

The reason behind this partial lifting of the ban

against confessions and statements made to the

police, is that if a fact is actually discovered in

consequence of information given by the accused, it

affords some guarantee of truth of that part, and

that part only, of the information which was the

clear, immediate and proximate cause of the

discovery. No such guarantee or assurance

attaches to the rest of the statement which' may be

indirectly or remotely related to the fact discovered.

13. At one time it was held that the expression "fact

discovered" in the section is restricted to a physical

or material fact which can be perceived by the

senses, and that it does not include a mental fact

(see Sukhan v. Emperor, Ganu Chandra Kashid v.

Empror). Now it is fairly settled that the expression

"fact discovered" includes not only the physical

object produced, but also the place from which it is

produced and the knowledge of the accused as to

this (see Palukuri Kotayya v. Emperor, Udai

Bhan v. State of U P). (emphasis in original)

25. In Aftab Ahmad Anasari v. State of Uttaranchal after

referring to the decision in Palukuri Kotayya, the Court

adverted to seizure of clothes of the deceased which were

concealed by the accused. In that context, the Court opined

that: (Aftab Ahmad Anasari Case, SCC p. 596, para 40)

“40. …the part of the disclosure statement, namely,

that the Appellant was ready to show the place

where he had concealed the clothes of the

deceased is clearly admissible Under Section 27 of

Page 69 69

the Evidence Act because the same relates

distinctly to the discovery of the clothes of the

deceased from that very place. The contention that

even if it is assumed for the sake of argument that

the clothes of the deceased were recovered from the

house of the sister of the Appellant pursuant to the

voluntary disclosure statement made by the

Appellant, the prosecution has failed to prove that

the clothes so recovered belonged to the deceased

and therefore, the recovery of the clothes should

not be treated as an incriminating circumstance, is

devoid of merits.”

26. In State of Maharashtra v. Damu it has been held as

follows:

“35. …It is now well settled that recovery of an

object is not discovery of a fact as envisaged in

[Section 27 of the Evidence Act, 1872]. The decision

of the Privy Council in Pulukuri Kotayya v. King

Emperor is the most quoted authority for supporting

the interpretation that the 'fact discovered'

envisaged in the section embraces the place from

which the object was produced, the knowledge of

the accused as to it, but the information given must

relate distinctly to that effect.”

The similar principle has been laid down in State of

Maharashtra v. Suresh , State of Punjab v. Gurnam

Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan

Dass v. State (NCT of Delhi) , Manu Sharma v. State (NCT of

Delhi) and Rumi Bora Dutta v. State of Assam.

27. In the case at hand, as is perceptible, the recovery had

taken place when the Appellant was accused of an offence, he

was in custody of a police officer, the recovery had taken place

in consequence of information furnished by him and the panch

witnesses have supported the seizure and nothing has been

brought on record to discredit their testimony.

28. Additionally, another aspect can also be taken note of. The

fact that the Appellant had led the police officer to find out the

spot where the crime was committed, and the tap where he

washed the clothes eloquently speak of his conduct as the

Page 70 70

same is admissible in evidence to establish his conduct. In this

context we may refer with profit to the authority in Prakash

Chand v. State (Delhi Admn.) wherein the Court after referring

to the decision in H.P. Admn. v. Om Prakash held thus:

(Prakash Chand Case, SCC p.95, para 8)

“8. ...There is a clear distinction between the

conduct of a person against whom an offence is

alleged, which is admissible Under Section 8 of the

Evidence Act, if such conduct is influenced by any

fact in issue or relevant fact and the statement

made to a Police Officer in the course of an

investigation which is hit by Section 162 of the

Code of Criminal Procedure. What is excluded by

Section 162, Code of Criminal Procedure is the

statement made to a Police Officer in the course of

investigation and not the evidence relating to the

conduct of an accused person (not amounting to a

statement) when confronted or questioned by a

Police Officer during the course of an investigation.

For example, the evidence of the circumstance,

simpliciter, that an accused person led a Police

Officer and pointed out the place where stolen

articles or weapons which might have been used in

the commission of the offence were found hidden,

would be admissible as conduct, Under Section 8 of

the Evidence Act, irrespective of whether any

statement by the accused contemporaneously with

or antecedent to such conduct falls within the

purview of Section 27 of the Evidence Act.”

29. In A.N. Vekatesh and Anr. v. State of Karnataka it has

been ruled that: (SCC p. 721, para 9)

“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

Page 71 71

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 hold 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 1, 2, 7 and PW 4

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)

The other decision relied upon is the case of Pandurang Kalu

Patil (supra).

48.It is not necessary to multiply the authorities on this aspect.

In our opinion, the Courts below have rightly placed reliance on the

fact discovered by the Investigating Officer (PW64) on the basis of

the disclosure made by the Accused No.3 on 2

nd

April 1999, after

his arrest on 29

th

March, 1999, as recorded in Exh. 188. The

panchanama Exh.188 was proved by pancha witness PW30. The

Page 72 72

fact that PW30 was not on good terms with the accused cannot be

the basis to discard his evidence. This aspect has been considered

by the High Court and in our opinion, rightly, that the evidence of

PW30 was relied upon for the limited purpose to prove the

panchanama and not for any other relevant fact. We affirm the

view taken by the courts below about the admissibility of disclosure

of the spot where the dead body of Gadadharanandji was disposed

of by Accused No.3. The same stood corroborated from the recovery

of a dead body of an unknown person from the same spot by the

Rajasthan Police on 4

th

May, 1998 on the information provided by

PW50. That dead body, on subsequent medical examination was

found to be of none other than that of Gadadharanandji.

49.As regards the identity of the dead body, the Courts below

took note of the evidence of PW57 and PW50. PW50 had informed

the local police of Barothi on 4

th

May, 1998 about the dead body of

an unknown person lying at the same spot, later on discovered to

be that of Gadadharanandji due to the disclosure made by Accused

No. 3. PW57 conducted the post-mortem of the burnt dead body

found at Barothi village in Rajasthan. He deposed that the death

Page 73 73

was homicide. He also deposed about the golden teeth and a key

found near the dead body. During the course of investigation, it was

revealed that the said key could open the lock put up on the room

of the deceased in the Vadtal Temple complex. PW3 corroborated

that fact. Further, the identity of the dead body was conclusively

established from the DNA testing results of the skin sample of the

body which matched with the blood samples of the biological sister

of the deceased. Additionally, PW1 also confirmed that he had

treated the deceased in 1993 by implanting gold caps on his teeth.

That statement was corroborated by the receipts and diary entries

of PW1. Indeed, the Appellants have vehemently contended that the

said medical records are fabricated because of the discrepancies

therein. However, the said discrepancies would not discredit the

other evidence regarding the identity of the dead body which has

been duly corroborated. This view taken by the High Court, in our

opinion, is a possible view. It is certainly not a perverse view. As the

identity of the dead body of deceased Gadadharanandji is

established, it is a strong circumstance to link it to Accused No.3

who had voluntarily disclosed to the investigating agency about the

spot/location where the dead body of the deceased was dumped by

Page 74 74

him and that being the same place in Barothi village in Rajasthan

from where the dead body of an unknown person was recovered

earlier by the local police.

50.That brings us to the efficacy of the disclosure made by

Accused No.5 to the investigating agency - the place where

Gadadharanandji was brought from Vadtal Temple and the crime of

murder was finally executed. The disclosure so made by Accused

No. 5 on 18

th

April, 1999, after his arrest, has been corroborated by

the panchanama Ex.198 proved by pancha PW31. The Accused

No.5 disclosed the room number in Navli Temple complex where

Gadadharanandji had stayed on the day of incident. The Courts

below have held the disclosure by Accused No.5 about the place

where Gadadharanandji was brought at Navli Temple complex, as

admissible. We affirm that view for the reasons noted while

considering the efficacy of disclosure of Accused No.3. From this

evidence, it is obvious that Gadadharanandji was taken away by

Accused No.3 in a car from Vadtal Temple complex and brought to

Navli Temple complex on 3

rd

May, 1998 itself. His dead body was

dumped in a ditch in village Barothi in Rajasthan (another State)

Page 75 75

which was traced on 4

th

May, 1998 as a consequence of the

information given by PW50.

51.We shall now deal with that aspect of evidence which shows

the presence of the accused at the Navli Temple complex on the day

of the incident. For that, the Courts below have taken into account

the circumstantial evidence as well as the ocular evidence to the

extent it is admissible. The evidence of PW25 and PW49 at the Navli

Temple throws light on the said issue. According to the prosecution,

prior to the incident, Accused No.2 was in touch with PW25 to

arrange for a call girl for the pleasure of Gadadharanandji.PW48

has deposed that his company had allocated cellphone number

‘9825017197’ to Accused No.2. The form for allocating the said

number to Accused No.2 is Exh. 241. The mobile bills of Accused

No.2 concerning the aforesaid number 9825017197 for the months

of January-April 1998 and April-May 1998 are produced at Exh.

242. PW48 had stored the information concerning the details of the

aforesaid number 9825017197 on his computer and a print out of

the said information has also been produced at Exh. 242, while

receipt of such information is produced at Ex. 243. The defence has

Page 76 76

chosen not to cross examine PW48, thus accepting that the number

9825017197 belonged to Accused No.2 and about the calls made

from and received on that numbers. Hence, it is established that

Accused No.2 was using number 9825017197.

52.Further, PW25 has deposed that he had a telephone at his

residence bearing number 32670. Exhs. 242 and 243 reveal that

several calls were made from the number 9825017197 (belonging to

Accused No.2), to the number ‘02692-32670’, between 18

th

April

1998 to 20

th

May 1998. The aforesaid exhibits also reveal that on

2

nd

May 1998, there were calls made between the said numbers on

two occasions. On the day of the incident i.e. 3

rd

May 1998, the

number 9825017197 used by Accused No.2 received six calls from

the telephone number of PW25 between 5:10PM and 6:55PM. On

4

th

May 1998, the number 9825017197 used by Accused No.2

received a phone call after mid night, for a duration of around ‘4:55’

minutes. Exhs. 242 and 243 reveal that calls were exchanged

between the two numbers even in June-July 1998. It is safe to infer

that Accused No.2 was not talking to anybody else but PW25, on

the land line number of PW25. No evidence has been adduced by

Page 77 77

Accused No.2 to dispel the same. It is clear from the above conduct

of the parties that PW25 was well acquainted with Accused No.2.

PW64 investigating officer has deposed that PW25 made a

statement before him that he knew Accused No.2 and that Accused

No.2 had contacted him for procuring a girl for Gadadharanandji.

He (PW25) had also stated to PW64 that on 2

nd

May, 1998, he

contacted Accused No.2, when Accused No.2 asked him to bring a

girl at Navli complex on the next day i.e. 3

rd

May, 1998. On that

day, PW25 received a call at his residence from Accused No.2 at

around 1:30PM, asking him to reach Navli. PW25 then stated that

he brought PW49 to Navli at around 2:15-2:30PM, after which they

had met Accused No.2 in the Navli Temple complex. During

examination, though PW25 turned hostile and denied that Accused

No.2 contacted him for the purpose of arranging a girl, the evidence

on record, as set out hereinabove, clearly establishes that Accused

No.2 was in constant contact with PW25. The Courts below have

rightly held in our opinion, that the subsequent stance taken by

PW25 that he did not know Accused No.2, was patently incorrect

and that there was enough evidence on record to show otherwise.

Thus, from the evidence on hand, it is apparent that PW25 knew

Page 78 78

Accused No.2 and there is no other evidence on record to disprove

the theory that PW25 had gone to Navli with PW49 on the

instructions of Accused No.2.

53.With regard to the evidence of PW49, the call girl procured by

PW25, she had appeared before the investigating officer (PW64) to

give her statement on 2

nd

May, 1999, during the course of the

investigation. PW64 has deposed that when PW49 was called for

investigation, she was shown photographs of the deceased

Gadadharanandji and she had identified him as the man she had

physical relations with at the Navli Temple complex. She also

identified Accused No.2 as one of the persons she met at the Navli

Temple complex on the day of the incident. These statements were

given in the presence of PW32. PW32 is an independent witness.

His evidence has been accepted by both the Trial Court and the

High Court as independent and truthful. We see no reason to

conclude otherwise. We are also in agreement with the finding given

by the Courts below that the evidence given by PW32 and the

investigating officer (PW64) in this regard cannot be discredited.

Thus, it can be inferred that PW49 was taken to the Navli Temple

Page 79 79

complex by PW25 on 3

rd

May, 1998, where Accused No.2 and

Gadadharanandji were present.

54.The presence of Accused No.2 at the Navli Temple on 3

rd

May,

1998 can also be deciphered from the evidence of PW42. PW42 has

turned hostile. However, in his evidence, he has admitted that in

1998, Accused No.2 was running the Navli Temple. Further, on 3

rd

May, 1998 as he was leaving the Navli Temple complex, Accused

No.2 reached with another person, whose identity could not be

ascertained by him. We agree with the reasoning of the Courts

below that even if the denial of PW42 on other facts is accepted, his

presence at the Navli Temple on the day of the incident and at the

relevant time is proved. His hostility does not destroy the evidence

led by the prosecution to show that the Accused No. 2 had come to

the Navli Temple complex on 3

rd

May 1998. The presence of PW42

at the Navli Temple complex has been corroborated by the evidence

of PW43, wherein although he (PW43) has turned hostile, has

admitted that PW42 “hadn’t gone anywhere” on the day of the

incident. Thus, indicating that PW-42 was at the Navli Temple on

the day of the incident.

Page 80 80

55.It is significant to also note the conduct of Accused No.2 in

light of the evidence which we have analysed above. On the day of

the incident, Accused Nos.2 and 4 took PW3 and PW33 along with

them to Nadiad for an event at around 4-4:15PM. The prosecution

has argued that Accused No.2 purposely did this so as to not

arouse any suspicion of PW3 and PW33 as to the whereabouts of

Gadadharanandji and to hide his real intentions. PW36 deposed

that Accused No. 2 along with another person (described as “sant”)

and two disciples had reached the event at Nadiad around

5-5:30PM and stayed for around 10-15 minutes. PW3 has deposed

that at the time of leaving from Nadiad, the accused received a call

from Accused No.1 after which Accused No. 2 told PW3 and PW33

to go to Vadtal by themselves in an auto as they (Accused Nos. 2

and 4) were going to Ahmedabad, whereas Accused No.4 told them

that they were going to Zundal village. This was presumably an

attempt by the said accused to create confusion in the minds of

PW3 and PW33. There is evidence to show that Accused No.2 was

spotted in the Navli Temple complex on 3

rd

May, 1998. Additionally,

no evidence has been led to show the whereabouts of both Accused

Nos. 2 and 4 after leaving from Nadiad until their arrival at Vadtal

Page 81 81

Temple complex. PW3 deposed that Accused Nos.2 and 4 were with

him from afternoon till around 6PM on the day of the incident. The

period from 2:30 PM till the Accused No. 2 left for Nadiad with PW3

at around 4-4:15PM, has not been explained by the said accused.

The Courts below have rightly inferred on the basis of the evidence

adverted to hereinabove that Accused No.2 had picked up soft

drinks at around 2:30PM from the shop of PW17 at Vadtal, gone to

Navli at around 3:00PM and remained there until he returned to the

Vadtal Temple complex, after which he left with PW3 and PW33 for

Nadiad.

56.In addition to the above, we must also point out here the

conduct of Accused No.3 post the murder of Gadadharanandji. As

set out by the prosecution, once the murder was committed,

Accused No.3 along with Accused No.5 carried his body to Barothi

village in Rajasthan where it was dumped in a ditch and set on fire.

After that, the Accused No.3 set the car on fire and took it to the

garage of PW13. Thereafter insurance claim was filed on 6

th

May,

1998 (Ex.129) in the name of the car owner (PW11) under the

signature of Accused No.3 as an accident case. However, the

Page 82 82

insurance company rejected the claim. PW6, surveyor of the

insurance company who had examined the said car, deposed that

the car did not get burned due to any accident or internal

malfunction.

57.As noted earlier, it was only on the basis of the disclosure

made by Accused No.5 as to the place where the murder was

committed, that the investigating agency was able to take the

investigation forward and then interrogate the aforesaid witnesses

i.e. PW25, PW42, PW43 and PW49. Only a person who was present

at the time of commission of the offence could have known about

the location of the offence and Accused No.5 undoubtedly had

exclusive knowledge about the place where the crime was

committed, a fact which has been affirmed by both the courts. The

panchnama drawn on the basis of this disclosure has been

corroborated by independent pancha witness PW31.The Courts

below, on analyzing the relevant evidence, have held that the

inescapable conclusion is that the deceased was taken to Navli. We

are in agreement with this finding, as the evidence on record

supports that conclusion.

Page 83 83

58.On the basis of the aforementioned circumstances, the Courts

below have held that the link connecting the chain of events and

the link between Accused Nos.1, 2, 3 and 5 was complete in all

respects, pointing to the guilt only of the said accused.

59.The moot question is as to why the appellants should have

thought of committing the crime. The motive behind the crime

according to the prosecution was that Accused Nos.1 and 2 were

irked by the proposal of the deceased Gadadharanandji to transfer

them immediately after taking over as the Chairman of the Board of

Trustees of the Vadtal Temple on 11

th

April, 1998. The Courts below

have adverted to the evidence of PW3, PW5, PW33, PW37 and PW39

and after analyzing the same, took the view that there was strong

motive for Accused No.1 and 2 to murder Gadadharanandji as they

felt threatened about their current position and of losing control

over the affairs of the Vadtal Temple. Resultantly, the Accused

Nos.1 and 2 hatched a conspiracy to commit the offence in question

and took the assistance of Accused Nos.3 and 5 who were

co-conspirators along with them. This finding was assailed by the

appellants mainly on the ground that such a case was a figment of

Page 84 84

imagination of the prosecution. In fact, there were other persons

who were inimical to Gadadharanandji after he was elected as

Chairman of the Vadtal Temple. The Courts below have analysed

this aspect and have rejected that argument. Both the Courts have

held that mere unhappiness of those persons could not have been a

ground to take such an extreme step. The fact that the names of

other persons were mentioned in the F.I.R. but were dropped in the

eventual chargesheet filed by the investigating agency does not

diminish the credibility and the quality of evidence adduced by the

prosecution about the involvement of the appellants in the

commission of crime. As far as Accused Nos.1 and 2 are concerned,

the Courts below have held that they were in complete control of the

affairs of the Vadtal Temple complex. It is these Accused who were

entertaining apprehension that their financial irregularities would

also be exposed, in the event of their transfer. The fact that

financial irregularities were committed by Accused Nos.1 and 2 and

that they were getting kickbacks from PW39, has come on record.

The argument of the appellants, however, is that the prosecution

has neither produced any evidence about the disproportionate

assets of these appellants nor put any specific question to them

Page 85 85

during their examination under Section 313 of the Code. This

argument needs only to be rejected, in that the prosecution case

against Accused Nos.1 and 2 was not one of having amassed

disproportionate assets but was only of unexplained high-value

cash amounts and other investments recovered during the search of

their residence.

60.The Counsel for the Appellant (Accused No. 1) had contended

that there was no evidence against Accused No. 1 and he has been

falsely implicated. He had placed reliance on Satender’s Case

(Supra). In that case, the High Court had acquitted the accused on

recording a finding (see Para 29) – that there was no evidence of any

overt act attributed to the accused. In the present case, however,

the Courts below have after due analysis of the legal evidence and

the proved circumstances has unambiguously found that the

Accused No. 1 was the mastermind of the conspiracy to murder

Gadadharanandji. We see no reason to take a different view.

Similarly, it has been concurrently found that Accused Nos.3 and 5

are the henchmen of Accused Nos.1 and 2, a fact which has not

been challenged by the said appellants. In other words, the future

Page 86 86

prospect of Accused Nos.3 to 5 was fully dependent upon the

existence and continuation of the Accused Nos.1 and 2 at Vadtal

Temple complex. Both the Courts below have analysed these

aspects and come to the conclusion that there were strong

circumstances indicating the involvement of the appellants in the

commission of the crime and excluding any possibility of their

innocence.

61.Relying upon paragraphs 6, 7 and 9 of the decision in P K

Narayanan (Supra), it was argued that mere evidence regarding

motive and preparation for commission of the offence is not enough

to substantiate the charge of conspiracy to commit offence. In our

view, the conclusion reached in that case was on the facts of that

case. In the present case, we find that the Courts below have

analysed the evidence on record and correctly answered the issue

under consideration on the basis of circumstances proved before,

during and after the occurrence indicating complicity of the

Appellants. These circumstances were not compatible with the

possibility of innocence of the Appellants; and moreso because of

absence of any explanation from them. We are in agreement with

Page 87 87

the view so taken by the two Courts, about the involvement of

Accused Nos.1, 2, 3 and 5 in the commission of the offence in

question.

62.Relying upon Paragraphs 13 to 15 of the decision in Baliya @

Bal Kishan (supra), it was argued that the finding of conspiracy

recorded by the Courts below is untenable. We are not impressed

with this argument. It is well settled that such a conspiracy is

rarely hatched in the open. There need not be any direct evidence

to establish the same. It can be a matter of inference drawn by the

Court after considering whether the basic facts and circumstances

on the basis of which inference is drawn have been proved beyond

all reasonable doubts and that no other conclusion except that of

the complicity of accused to have agreed to commit an offence is

evident. That is precisely what has been done by the Courts below

in the present case. There is no legal evidence to give benefit of any

doubt to the Appellants. We have no hesitation in affirming the

view taken by the Courts below in this regard.

63.The Appellants have made fervent effort to persuade the Court

about the several other discrepancies - such as about the age of the

Page 88 88

deceased in Exhibits 95 and 98 or that the High Court having

discarded the circumstance of wrappers of sleeping pills found at

the Navli Temple. That, however, does not discredit the other

clinching circumstances established by the prosecution, which

completes the chain of events indicative of the involvement of the

Appellants in commission of the crime. The circumstances taken

into account by both the Courts and as adverted to herein before,

leave no manner of doubt about the complicity of the appellants in

commission of the crime in question. It is, therefore, not necessary

for us to dilate on those contentions.

64.We are also not impressed by the argument of Accused No. 5

that he should be given the same benefit as given to Accused No. 4

by the High Court. In so far as Accused No. 5, there is ample

evidence about his involvement in commission of the crime. The

Courts below have rightly noticed that he was involved, right from

the disappearance of Gadadharanandji from Vadtal Temple complex

till the disposal of his dead body at Barothi. Those aspects have

been considered while discussing the relevant circumstances. We

are, therefore, in agreement with the conclusion reached by the

Page 89 89

Courts below that there is sufficient evidence to indicate the

complicity of Accused No. 5 in commission of the crime in question.

Suffice it to observe that the circumstances established indicating

the complicity of Accused No. 5 cannot be compared with the role of

Accused No. 4, so as to give the same benefit to him.

65.On analyzing the evidence and the judgments including the

findings and conclusion recorded by both the Courts, we have no

hesitation in upholding the order of conviction against Accused

Nos.1, 2 and 5 (appellants herein). For, the presence of

Gadadharanandji at Vadtal Temple complex on the day of incident,

the evidence that he was last seen together with Accused No.3 going

from Vadtal Temple complex in a car, the recovery of a dead body in

village Barothi in the neighboring state of Rajasthan on the next

day of disappearance of Gadadharanandji, the disclosure made by

Accused No.3 about the location as to where the dead body of

Gadadharanandji was dumped by him in a village at Barothi, the

discovery of the fact after subsequent medical examination that the

dead body so recovered was of none other than that of

Gadadharanandji, the disclosure made by Accused No.5 of the

Page 90 90

location where Gadadharanandji was strangled at Navli Temple

complex, the conduct of Accused No.3 in misleading the

investigating agencies, the burning of the vehicle used in the

commission of the crime and then filing of a false insurance claim

which was rejected by the insurance company, the strong motive for

committing the murder of Gadadharanandji and the criminal

conspiracy hatched in that behalf and executed, leave no manner of

doubt about the involvement of the appellants in the commission of

the crime. We fully agree with the opinion recorded by the Courts

below in that regard. It is not a case of finding of guilt recorded in

absence of any legal evidence or contrary to the evidence available

on record. We find that the finding of guilt against the appellants is

inescapable. Hence, we see no tangible reason to interfere with the

final conclusion so reached by both the Courts.

66.Accordingly, we dismiss all the three appeals filed by the

original Accused Nos.1, 2 and 5 respectively and uphold the order

of conviction and sentence passed by the High Court, which is

impugned in these three appeals. The Accused on bail shall

surrender forthwith.

Page 91 91

………………………… .J.

(Kurian Joseph)

………………………… .J.

(A.M.Khanwilkar)

New Delhi,

Dated: April 10, 2017