Charandas Swami vs State Of Gujarat & Anr

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 1st 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 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:

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 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.

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 3rd 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 between the Vadtal and Navli Temples could be covered within 30-45 minutes, the presence of Accused No.2 at Navli is likely.

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.

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.

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 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.

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 involvement of the Accused Nos.1 to 3 and 5, who have been found guilty of the murder of deceased Gadadharanandji.

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 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 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.

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.

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 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.

- 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 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.

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 3rd 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 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.

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.

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.