[2017] 3 S.C.R. 96

CHARANDAS SWAMI

STATE OF GUJARAT & ANR.

(Criminal Appeal No. 1549 of2007)

APRIL 10, 2017

[KURIAN JOSEPH AND.A.M. KIIANWILKAR, JJ.)

Penal Code, 1860 - s. 302 r!ir ss. 120-B. 364 and 301 - Murder - Prosecution case that Chairman of Board of Trustee of the temple proposed to transfer Kotharis fi'om the temple on account of misappropriation of.funds from the temple by them - Kotharis and their henchmen-uppellanl nos. 1-5 .. entered into conspiracy, kidnapped the , Chairman and killed him - Thereafte1; accused transferred the body of the deceased lo the neighbouring State where they burned it to destroy the evidence - Conviction of accused no. 1, 2, 3 and 5 u/s. 302 rlw ss. 120-B, 364 and 301 by courts below - Howeve1; High Court acquilled accused no. 4 and co111111uted the death sentence awarded by trial court to life i111priso11111ent - On appeal held: Courts below rightly proved the guilt of the accused on the basis of motive. 'last-seen' theory. place o] murder and disposal of the body, panc/111ama at instance of accused no. 5, recove1y of the body of the deceased and the conduct of accused no. 3 - These circumstances complete the chain of events indicative of involvement of appellants in the commission of the crime and excluding any possibility of their innocence - It is not a case of . finding of guilt recorded in absence of any legal evidence or contrmy to the evidence available - Thus, inlelference with the co11clusio11 reached by the courts below not called for - Evidence.

s. 1208 - Conspiracy - Finding of conspiracy - Tenability of

- Held: Compiracy is rarely hatched in the open - There need not be any direct evidence to establish the same - It can be a mat/er of inference drawn by the Court ajier considering whether the basic facts and circumstances on thi! basis of which ilference is drawn have been proved beyond all reasonable doubts and that no other conclusion except that <if the complicity <if accused to have agreed to commit an offence is evident.

CI-IARAND/\S SWAMI v. STATE OF GUJARAT & ANR.

Evidence Act. 1872 - s. 27 - How much of ii1for111ation received fiom accused may be proved - Admissibility of the disclosure made by accused no. 3 to the investigating officer about the location 1vhere the dead body of deceased was dumped by him - When dead body was already recovered jiom the same place and noted in the public records in the State - Held: Disclosure made by accused no. 3 about the location where the dead body of the deceased was du111ped by him, was ad111issible u/s. 27 4 the Act.

Dismissing the appeals, the Court

 HELD: 1. On analyzing the evidence and the judgments including the findings and conclusion recorded by both the Courts, there is no hesitation in upholding the order of conviction against accused Nos. 1, 2 and 5 (appellants), by the High Court. }'or, the presence of 'G' in 'V' Temple complex on the day of incident, the evidence that he was last seen together with accused nu. 3 going from the Temple complex in a car, the recovery of a dead body in village 'B' in the neighboring State on the next day of disappearance of 'G', the disclosure made by accused no. 3 about the location as to where the dead body of 'G' was dumped by him in a village at 'B', discovery of the fact after subsequent medical examination that the dead body so recovered was of none other than that of 'G', the disclosure made by accused no. 5 of the location where 'G' was strangled at 'N' 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 'G' 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. The opinion recorded by the courts below is accepted. It is not a case of finding of guilt recorded in absence of any legal evidence or contrary to the evidence available. The finding of guilt against the appellants is inescapable. Hence, there is no t:uigiblc reason to interfere with the final conclusion reached by the courts below. [Para 6511151-1<'-U; 152-A-Cl

2.1 Both the courts have concurrently found that the prosecution succeeded in establishing the fact that 'G' returned

to the Temple at around 12:30 - 12:45 P,.M. :From the evidence of PW3, PW8, PW33, PW16, the presence of 'G' at 'V' Temple complex on 03.05.1998 between 12:00 - 1:30 P.M. is indisputable. [Para 43Jll28-G-ll; 129-DJ

2.2 :For, the prosecution has not produced any direct evidence regarding the manner of disappearance of 'G' from 'V' Temple, as to whether he was forcibly kidnapped from his room or coaxed to go to 'N' Tcnl(Jle complex by the accused. However, the prosecution certainly produced evidence to establish the fact that 'G' was seen along with accused no.3 in a car, leaving 'V' T1m1ple. The courts below after analyzing the evidence, recorded a concurrent finding including by weighing the admissible part of the evidence of hostile witnesses-PW14 and PW15, and of PW16.

The view so taken cannot be said to be perverse. Both the courts analysed the evidence and after sifting the irrelevant or inadmissible part therefrom, found lhat the evidence was sufficient to answer the circumstance against the appellants. The two courts held that 'G' was last seen together with accused no.3 leaving 'V' Temple complex in a blue car and that he was not seen thereafter, until his dead body was found on 4th May, 1998 (i.e. next day of disappearance) at 'B' village in the neighbouring state.

This finding arrived at by the courts below is unassailable. H is neither perverse nor warrants interference by this Court. [Para 4411129-E-G; 130-F-G, II; 131-A-ll]

2.3 The fact that the dead body recovered from B village on 4th May, 1998 was that of'G' could be known only after accused no.3, during the course of investigation, made a disclosure about the location where he had dis1Josed of the dead body of 'G'. The fact that the dead body recovered on 4th May 1998 was of 'G' was unraveled and discovered only after the results of its medical examination became ava_ilable to the investigating agency. Till the said disclosure was made, in lhe records of the Ra, jasthan police, the dead body was noted as that of an unknown person.

The fact that the dead body was already recovered from the same place on 4th May, 1998 and so noted ih the public records in the Stale of Rajasthan docs nul undermine the admissibility of the disclosure made by accused no. 3 to the investigating officer about the location where the dead lJOdy of 'G' was dumped by him, which

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

information was exclusively within the personal knowledge of accused no. 3. 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 'G' was dumped by him, was admissible u/s. 27 of the Evidence Act. [Para 45](131-B-G; 132- A)

2.4 The courts below rightly placed reliance on the fact discovered by the Investigating Officer (PW64) on the basis of the disclosure made by the accused no. 3. The panehanama was proved by pancha witness PW30. The fact that PW30 was not on good terms with the accused cannot be the basis to discard his evidence. The High Court rightly considered this aspect. The view taken by the courts below about the admissibility of disclosure of the spot where the dead body of 'G' was disposed of by accused no. 3, is affirmed. The same stood corroborated from the recovery of a dead body of an unknown person from the same spot by the Police on the information provided by PW50.

That dead body, on subsequent medical examination was found to be of none other than that of 'G'. [Para 48][143-D-G]

2.5 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 place 'B' on 4th May, 1998 about the dead body of an unknown person lying at the same spot, later on discovered to be that of 'G' due to the disclosure made by accused no. 3. PW57 conducted the post-mortem of the burnt dead body found at 'B' village. He deposed that the death was homicide. lie also deposed about the golden teeth and a key found near the dead body, which were proved to be of the deceased. Appellants contended that the 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, is a JIOSsible view. It is certainly not a perverse G view. As the identity of the dead body of deceased 'G' 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 him and that being the same place in 'B' village from H

A where the dead body of an unknown person was recovered earlier by the local police. [Para 491[143-G-H; 144-A-E)

2.6 The courts below held the disclosure by accused no.5 about the place where 'G' was brought at 'N' Temple complex, as admissible. The view is affirmed for the reasons noted while considering the_ efficacy of disclosure of accused no.3 .. From this evidence, it is obvious that 'G' was taken away by accused no.3 in a car from VTemple complex and brought to N Temple complex on 3rd May, 1998 itself. His dead body was dumped in a ditch in village (another Stale) which was traced on 4th May, 1998 as a consequence of the information given by PW50. [Para 501[144- J<'-ll; 145-A]

2.7 To show the presence of the accused at 'N' Temple complex on the day of the incident, the courts below took into account the circumstantial evidence i1s well as the ocular evidence to the extent it is admissible. The evidence of PW25 and PW49 at 'N' Temple throws light on the said issue. Acconling 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 'G'. PW 48 has deposed that his company had allocated cell phone number '9825017197' to accused no.2. It is established that accused no.2 was using the said number. The evidence on record clearly establishes that accused no. 2 was in constant contact with PW25.

The courts below rightly held 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.

J<'rom the evidence on hand, it is a11parent that PW25 knew accused no. 2 and there is no other evidence on record to disprove the theory that l'W25 had gone to place 'N' with PW49 on the instructions of accused no.2. [Para 51, 52][145-A-D, G-11;

146-A]

2.8 The finding given by the courts below that the evidence given by PW32 and the investigating ofticer-PW64, that PW49, the call girl was taken to 'N' Te11111le complex by PW25, where accused no. 2 and 'G' were present and that PW49 identified 'G' as the man with whom she had physical relations at 'N' Temple complex cannot be discredited, is accepted. [Para 53)(146-F-G]

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

2.9 The presence or accused no. 2 at 'N' Temple on 3rd May, 1998 can also be deciphered from the evidence of PW42, though he turned hostile. The reasoning of the courts below that even if the denial of PW42 on other facts is accepted, his presence at 'N' Temple on the day of the incident and at the relevant time is proved, is accepted. His hostility d(1es not destroy the evidence led by the prosecution to show that the accused no. 2 had come to the Temple complex on 3rd May 1998. The presence of PW42 at 'N' Temple complex has been corroborated by the evidence of PW43, wherein although PW43 turned hostile. Thus, there is evidence to show that accused no. 2 was spotted in 'N' Temple complex. Additionally, no evidence has been led to show the whereabouts of both accused nos. 2 and 4 after leaving from N place until their arrival at 'V' Temple complex. [Para 54, 55)(146-

11; 147-A-B, I<']

2.lO As set out by the prosecution, once the murder was committed, ace-used no.3 along with accused no. 5 carried his body to' B' village 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. Therearter, insurance claim was filed in the name of the car owner (PWll) under the signature of accused no. 3 as an accident case and the same wa.s rejected. PW6, surveyor of the ins'.irance company who examined the said car, deposed that the ca.1 did not get burned due to any accident or internal malfunction. [Para 56Jll48-B-CJ

2.11 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 PW25, PW 42, PW 43 and PW 49. Only a person who was present at the time of commission of the offence could have known about the location or the offence and accused no. 5 undoubtedly had exclusive knowledge about the place where the crime was commitlcd, a fact which was affirmed by both the courts. The panchnama drawn on the basis of this disclosure has been corroborated by independent paucha witness PW31. The courts below, on analyzing the relevant evidence, held that the inescapable conclusion is that the deceased was taken to place 'N'. This finding is accepte '. as the evidence on record supports

10 I

that conclusion. On the basis of the mentioned circumstances, the courts below iave 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. [Para 57, 58]1148-D-l<']

2.12 The courts below adverted to the evidence of PW3, PW5, PW33, PW37 and PW39 and after analyzing the same, took the view that there was strong motive fur accused 110.l and 2 to murder 'G' as they felt threatened about their current position and of losing control over the affairs of the Temple, owing to the financial irregularities committed by them. Resultantly, the accused nos. 1 and 2 hatched a conspiracy to commit the offence in question and took the assistance of Accused Nos.3 aud 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 imagination of the prosecution; and in fact, there were other persons who were inimical to 'G' after he was elected as Chairman of the Tem1>le. The courts below rejected that argument, holding that the mere unhappiness of those persons could not have been a gro_und 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 q1rnlity of evidence adduced by the prosecution about the involvement of the appellants in the commission of crime. As far as accused nos.I and 2 are concerned, the courts below held that they were in complete control of the affairs of'V' Temr.le complex •.

It is these accused who were. entertaining apprehension that their financial irregularities would also be exposed, in. the event of their transfer. The prosecution case against accused nos. 1 and 2 was not one of having amassed disproportionate assets but was only of unex1>lained high-value cash amounts and other

investments recovered during the search of their residence. (Para 59]1148-H; 149-A-l<'J

2.13 The courts below after due analysis of the legal evidence and the proved circumstances 11m1111l>iguously found that the accused no. 1 was the mastermind of the conspiracy to murder 'G'. There is no reason to take a different view. It has been

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

concurrently found that accused nos. 3 and 5 arc the henchmen of accused nos. 1 and 2, a fact which .bas not been challenged by the ap(JCllants. In other words, the future prospect of accused Nos. 3 to 5 was fully dependent upon the existence and continuation of the accused Nos. 1 and 2 in the Temple complex.

Both the courts below analysed 'these aspects and came to the conclusion that there were strong circumstances indicating the

involvcrnent of the appellants in the commission of the crime and excluding any possibility of their innocenc&. [Para 601[149ll; 150-A-B)

2.14 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 ol.her 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.

There is no legal evidence to give benefit of any doubt to the 'appellants. There is no hesitation in affirming the view taken by the courts below in this regard. [Para 62][150-1•'-G)

2.15 The appellants made fervent effort to persuade the court about the several other discre11ancies, 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, leave no manner of doubt about the complicity of the appellants in commission of the crime. [Para 63J1150-ll; 151-

A-BJ

2.16 In so far as accused no. 5, there is ample evidence about his involvement in commission of the crime. The courts below rightly noticed that he was involved, right from the disap11carance of 'G' from 'V' Temple complex till the disposal of his dead body. The conclusion reached by the courts below that there is sufficient evidence to indicate the complicity of accused No. 5 in commission of the crime in question is accepted. The circumstances established mdicating 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. [Para 64][151-C-E]

Subbaiah Ambalam v State of Tamil Nadu AIR 1977 SC 2046 : ( 1997] 2 SCR 923; Stale of Karnatuka v David Rozari (2002) 7 SCC 728: (2002] 2 Suppl. SCR 419; Nizam v Slate of Rajas1ha11 (2016) 1 SCC 550 :

(2015] 10 SCR 786; Dau/at Ram v S1a1e of Harya11a

(2015) 11 SCC 378 : [2015] 2 SCR 1001; Dhanraj@ Dhand v State. of Harya11a (2014) 6 SCC 745 : [2014] 7 SCR 476; Kirli Pal v Stale of West Bengal (2015) 11 SCC 178 : [2015] 4 SCR 726; Stale of UP through Central Bureau of Investigation v DI'. Sanjay Singh & Anr. 1994 Supp(2) SCC 707; Slate of Haryana v Sate11der (2014) 7 SCC 291; PK Naraya11w1 v Sw1e of Kera/a (1995) 1 SCC 142; Baliyu alias Bal Kishan v Slate of Madhya Pradesh (2012) 9 SCC 696 : [2012] 8 SCR 1154; Pulukuri Ko/faya and a/hers v. Emperor AlR

(1934) 1947 Privy Council 67; Mohmed /11ayalu!lah v.

The State of Maharashlra 1976 (1) SCC 828 : [1976] 1 SCR 715; Stale of Himachal Pradesh v. Jee/ Si11gh 1999

(4) sec 370 : (1999] 1 SCR 1033; H.D. Sika11d {DJ

Through L.R.S. v. Ce11/rul Bureau of /11vestigatio11 and Anr. 2016 (12) Scale 892; Pmran Kumar v. State of Haryana (2003) 11 SCC 241 : [2003] 1 Suppl. SCR 710; Pa11dura11g Kah1 Patil and Another v. State of Maharashtra 2002 (2) SCC 490 : (2002] 1 SCR 338; State (NCT of Delhi) v. Navjot Sandhu alias Afsm; 'Juru 2005 (11) SCC 600 : (2005] 2 Suppl. SCR 79; Udai Bhan v. State of U.P. [1962] Supp 2 SCR 830; Stale of Maharashtra v. Da11iu 2000 (6) SCC 269 : (2000] 3 SCR 880; H.P. Adm11. v. Om Prakash 1972 (1) SCC 249 : (1972] 2 SCR 765; Vasanta Sampat Dupare v.

Slate of Maharashtra (2015) 1 SCC 253; Sharad Birdhichand Sarda v. Slate of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 - referred to.

Hodge~· Case English Reports 168 Crown Cases, Liverpool Summer Assizes, 1838 - referred to.

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 105

Case Law Reference A

[1997) 2 SCR 923 referred to Para 18

[2002] 2 Su1>pl. SCR 419 , referred to Para 21

(2015) 10 SCR 786 ... referred to Para 22

(2015] 2 SCR 1001 referred to Para 22

(2014) 1 SCR 476. referred to Para 22 B

(2015) 4 SCR 726 referred to Para 22

1994 Supp. (2) sec 707 referred to Para 22

(2014) 1 sec 291 referred to Para 22

(1995) 1 sec 142 referred to Para 22 c

(2012] 8 SCR 1154 referred to Para 22

AIR (1934) 1947 PC 67 referred to Para 28

[1976] 1 SCR 715 referred to Para 28

119991 1 SCR 1033 referred to Para28

2016 (12) Scale 892 referred to Para 32 D

12003] 1 Suppl. SCR 710 referred to . Para 32

120021 1 SCR 338 referred to Pai-a 39

[2005] 2 Suppl. SCR 79 rCferred to Para 39

[1962] Supp 2 SCR 830 referred to Para 39 E

12000] 3 SCR 880 referred to Para 39

11972) 2 SCR 765 referred to Para39

(2015) 1 sec 253 referred to Para 39

(1985] 1 SCR 88 referred to Para 42

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

1549 of2007.

From the Judgment and Order dated 01.09.2006 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. I 005 of2004

WITH

Criminal Appeal No. 1550 of2007 and G

Criminal Appeal No. 1586 of2008.

Huzefa Ahmadi, K. T. S. Tulsi, Sr. Advs., Pradhuman Gohil, Ms. Taruna Singh Gohil, Ms. Jaikriti S. Jadeja, Rohan Sharma, Raj Kamal, Ms. Pallavi Malhotra, Ms. Suchi Sharma, D. N. Ray, Vikas Singh, H

A Himanshu Chau bey, Ad vs., for the Appellant.

Ms. Kiran Suri, Sr. Adv., P. K. Dey, Raj iv Nanda, T. A. Khan, Mukesh Kumar Maroria, Ms. Hemantika Wahi, Ms. Jesal Wahi, Krishna Kumar, Ms. Puja Singh, Ms. Mamta Singh, P. Parmeswaran, Advs., for the Resp911dent.

B The Judgment of the Court was delivered by

A. M. KIIANWJLKAR, J. l. These appeals have been filed by the Accused No. l (Criininal Appeal No.1586 of2008), Accused No. 2 (Criminal Appeal No.1549 of2007) and Accused No. 5 (Criminal Appeal No. I 550 of2007) against the judgme11t and final order of the High Court of Gujarat dated l" September, 2006. The High Court has upheld the decision of the Sessions Court, convicting Accused Nos. l, 2, 3 and 5 for offences under Sections 302 r/v./ 120-B, 364 and 20 l of the Indian Penal Code, 1860 ('IPC') and for the murder of one Gadadharanandj i. The High Court, however, has acquitted Accused No.4 of the said offences.

The High Court commuted the death sentence awarded by the Sessions D Court to a sentence of life imprisonment for the aforementio11ed 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 ofVadtal Gadi Temple comprises of8 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 F Board of Trustees on 11 '"April 1998. At that point in time, one Bhakti Dasji was the Chief Kothari and Narayan Shastri (Accused No. I) was the Assistant Kothari. Charandas Swami (Accused No.2) was informally working as an assistant to Accused No. l, while Madhav Prasad (Accused No.3), Ghanshyam (Accused No.4, now acq4itted) and Yijay Bhagat G (Accused No.5) were henchmen of Accused Nos. I and 2.

(c) On 16'" April, 1998, an agenda was circulated for a meeting of the Board of Trustees to be held on 22"a April, 1998, wherein the Chairman, Gadadharanandj i, proposed to transfer the Kotharis away from the Vadtal Temple. That move was not H approved by the rival camp. They also feared of being exposed

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

of their misdeeds and maladministration.

(d) On Jrd May, I 998, uadadharanandji went missing from the

tempi~ premises. The next day i.e. 4th May, I 998, a burnt body was found in a ditch at Barothi Village, in the neighbouring State of Rajasthan which was subsequently identified as that ofGadadharanandji. A post mortem of the body revealed that the cause of death was asphyxia.by strangulation.

(e) Meanwhile, one of the deceased's disciples, Jatin Bhagat(PW3) filed a missing person complaint about the sudden disappearance ofGadadharanandji with the local police on 5' 11 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 tlie CBI on 5t1i October I 998.

(f) The CBI eventually on 29th October, I 998 registered a new .

FIR against some persons, including the Appellants, for kidnapping Gadadharanandji. During the course ofinvestigation,

all the five accused were arrested in connection with the disappearance ofGadadhara11a11dji ..

(g) The investigation established the chaii1 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 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 Gadadharanandj i from the temple, drove him to his (Accused No. 3) house in Vadtal and then strangled him there using the deceased's 'khcsiya' (cloth usually placed around the neck). Accused No.3 also claimed that he returned with the deceased's body in Iris car to Vadtal, informed Accused No. I about the deed and then too~ Accused No:S along witli him to Rajasthan where they disposed of the dead body of deceased by throwing it in a ditch and lighting it on tire.

(h) Post-investigation, the Chief Judicial Magistrate vide his order dated I Ot" August, 1999 remitted the case against all the five

A accused. The trial proceeded before the District and Sessions Court at Kheda at 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 l J 1h June, 2004, the Sessions Court, Nadiad convicted all B 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 !PC and sentenced to rigorous imprisonment for life. Accused Nos. 2 and 5 were further convicted under S. 20 I r/w S. 120-B and sentenced to c

5 years' imprisonment.

U) The accused preferred an appeal to the High Court of Gujarat which was heard alongwith the confirmation reference. The High Cou11 confirmed the conviction against Accused Nos. I, 2, 3 and 5, but .acquitted Accused No.4. The High Court, however, commuted the death sentence to a sentence of life imprisonment.

 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 Gadadharanandj i to put an end to his plan to transfer them. After the murder, the accused transpo11ed the body of the deceased to Rajas than 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. I 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 cashierofthe temple and Accused No. I, by virtut: of his position, assisted him as a cashier. Accused No.2 was also assisting Accused No. I. Fu11her,

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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. I 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. I, who was in control of the administration and financial transactions of the temple at the relevant time. Further, PW39 gave huge amounts of c.ash to Accused Nos. 1 and 2, which was corroborated in the form of bills, and credit memos recovered from the house of Accused No. I . 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. I and 2 used to get kickbacks from purchase of goods supplied to the temple.

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 transler of the Kotharis and had even discussed the same with the Board.

The transferofthe Chief Kothari would obviously have implications for the assistant Kothari i.e. Accused No. I and by extension, Accused No.2.

Accused Nos. I and 2 were aware of such a proposal to transfer the Kothari and had interacted with the deceased about the same. Accused No. I had gone to the extent of telling the deceased that ifhe 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•ct May, 1998, is indisputable. This is corroborated G by the evidence of PW8 and PW3. The evidence of PWl 6 in fact 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. PWl 4 also turned H

hostile. The court noted that even if PW 14 and PW 15 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 couit, relying on the evidence of PW! 7, 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 ciistance between the Vadtal and Navli Temples could be covered within 30-45 minutes, the presence of Accused No.2 atNavli is likely.

8. The trial court noticed that although PW49 has been declared hostile, she admitted to have given her statement to the irivestigating 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, PWJ I 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.

I 0. The trial court then held thatthe motive behind the murder of F the deceased was that he was going to transfer Accused No. I away from the Vadtal Temple and, therefore, Accused No. I feared losing his control over financial matters of the temple and also of being exposed of the financial irregularities committed by him in the past in relation to temple finances. The said accused, therefore, hatched a conspiracy to G 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. I was not personally in the forefront, he is H

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

responsible for criminal conspiracy.

11. The trial court also dealt with the evidence regarding recove1y 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 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.J and that the nature of crime was such that it involved pre-planning, indicative of conspiracy among the accus.ed to commit the murder.

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 adve11ed 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 J ignesh Soni (PW! 9). In his evidence,

PW 19 identified the chain and pendant and stated that hi': exchanged the

11 l

same with gold.

16. The trial couit, 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.

17. Before the High Couit, 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. I, 2, 3, and 5. The High Court at the outset noted that the prosecution was l}Ot 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 Couit proceeded to examine as to whether the prosecution had proved the charges against the Appellants beyond any reasonable doubt.

18. The High Cou1t's decision proceeds in the following manner:

a) In light of the judgment in Subbaialr Ambalam v State of Tamil

Nadu 1, the High Comt 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 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 ofa fracture does not indicate that there was any other cause of deatli. 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.

1-1

. I AIR 1977 SC 2046

CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR. 113

[A. M. KHANWILKAR, J.]

c) As regards the identity of the dead body, the High Court took A note of the following: ·

i) PW57, who coi1ducted the autopsy of the dead body found at Barothi, deposed that a 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 .. PW I deposed that 11e had treated the deceased in 1993 and that he had put the said gold caps onthe teeth of the deceased during treatment. This is corroborated by receipts and diary entries of PW!. Certain documentary evidence produced by the prosecution vis-a-vis photocopies of the case papers seemed to be exaggerated with regard to the number of teeth treated by PWl. Still, the deposition of .PW! 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 dayof his disappearance i.e. on )'d 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,. ·

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 :SOPM to 2:05PM. Even though PW! 5 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 B the same.

e) The High Court then considered the evidence regarding the disclosure made by Accused No.3 during interrogation. That revealed to the pol ice that rhe body of the deceased had been dumped in a spot at Barothi village (Exh.188). This disclosure c was considered admissible u/S.27 of the Indian Evidence Act.

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 D 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 rea'ched that place. The High Court noted that there was 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 !!nd then subsequently fo Barothivillage, where his dead body was found burned. The High Court held that the prosecution has proved that the car did not catch tire by accident but rather was intentionally burned by the accused to destroy traces of evidence. This has been corroborated by the evidence of the

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 115

[A. M. KHANWILKAR, J.]

official of the insurance company which insured the said vehicle. A

i) With reference to the evidence of procuring a cal I 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, . B most presumably 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 PW 49 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 argu1nent has been rejected owing to lack of any evide1we in support of the same. The High Court held that mere ill-will of the persons towards the deceased cannot

be~ 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.

I) The High Court also did not accept the prosecution evidence of ·

Accused No.5 having approached PW 19 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. I proving large aniounts 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. I.

n) The High Cou11 then examined the circumstance of criminal conspiracy hatched by the accused. It held that Accused No. I 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. I and 3 were related by virtue of being disciples of one guru. It held that while the level of intiinacy between the accused by itself cannot prove 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 atter 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 purµosely 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 Jett after attending an event at Nadiad in the evening while telling PW3 and PW33 that they would be going to Ahmedabad/Zui1dal.

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 accused to commit the murder of the decased. Further, considering the circumstances surrounding the incident, it is clear that more than two persons were required to carry out the crime. Th~ fact that the Accused No.3 led the µolice to the place wher~" the body was disposed of, links him to Accused Nos. I and 2.

PW 15 had also seen the deceased leaving from Vadtal with Accused No.3.

q) Tb.e High Cou11 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

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 117

[A. M. KHANWILKAR, J.]

disbelieve that evidence. The High Court held that the disclosure A made by Accused No.5 was crucial in discovering the place of murder.

r) The High Cou1t noted that Accused No.5 was not present at Vadtal on the i1ight of the incident, indicating that he was involved in disposing of the body of the deceased. His presence B with Accused No.2, his knowledge of the murder and his conduct clearly marked him out as a co-conspirator.

s) The High Comt while considering the evidence regarding the circumstance of motive, noted the following aspects: O The seizure of large amounts of unaccounted cash as well as the presence of large amounts of investments fom Accused Nos. I and 2 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 ofVadtal 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 Nci.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 issue was discussed between the Board members, is clearly established.

iv) The evidence of PWS 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 ofTrustees had discussed the proposal of the deceased with regard to transfer of the Chief Kothari. This was a huge concern to Accused Nos. I and 2, especially since they were dealing with the finances of the Va<ltal 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. I and 2 in particular to commit the crime. Jn 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. I 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. I, 2, 3 and 5 for having murdered Gadadharanandji. This conclusion has been recorded even after noticing ee11ain 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. I 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. I and Accused No.5. Mr KTS Tulsi, learned senior counsel appearing for Accused No. I, 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 thatthe accused were irked by the deceased's proposal to transfer them is imaginary beciwse admittedly, the actual decision for transfer could be taken only by the entire Board, comprising of7 (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

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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 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 PW! 5, .who imer a/ia 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 PW 15 turning hostile, part of his evidence was considered while convicting the accused.

Infact, evidence of PWI I reveals that Accused No.3 was at home for the entire duration of the day on which the alleged incident took place.

PW! I even stated thatit was not true that Accused No.3 had taken the car out (in which the 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 PW 14 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 PWl4 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, ii1cluding:

(a) The circumstances surrounding the actual kidnapping of the deceased and the place of crime being Navli, has not been substantiated by any evidence. lnfact, 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 PW I I 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;

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

the dee.eased 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-mo11em or post-mortem. lnfact, the finding of the post mo11em report shows that the burns were pre-mortem, thus completely destroyi11g the prosecution's case that the deceased died by strangulation. Further, evidence of PW 57. reveals that the right chamber of the heai1 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.

(d) The panchnama at the instance of Accused No.3, wherein he inter a/ia 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"/ Kar1U1tllkll v Davit/ RowrP to challenge the admissibility of the evidence on record.

22. Mr. Tulsi submits that the courts below ignored the wellestablished 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 followingjudgments to bultress his argument: Nizllm v Stute of Raj11stlu111·1, Da11/11t Ram v State of J/11r}1111114, /)/11111raj@ Dl1111u/ v

2 <2002 l 1 sec ns

'(2016) I SCC550 ' (2015) 11sec378

CHARANQAS SWAMI v. STATE OF GUJARAT & ANR. 121

[A. M. KHANWILKAR, J.]

Slate of llarytuw', Kirti Pal v Stale o.f Wes/ Be111:al 6, State of UP A through Central Bureau of Investigation v Dr. Sanjay Singh & Anr.7, State of Haryana v Satender8, PK Narayanan v State of Kerala9 and Baliya alias Bal Kishan v/s State of Madhya Pradesh10•

23. Mr. Huzefa Ahmadi, learned Senior Counsel, appeared for the Accused No.2. He had opened the arguments for the appellants and B raised points some of which have already been noted earlier. He 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. lnfact, 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 oft11e 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, 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.

' (2014) 6 sec 745 '' (2015) 11sec11s 7 1994 Supp (2) SCC 707 (Paras 15 to 19) ' (2014)7 SCC 291(Paras25. 29) '(1995) I sec 142 (Paras6, 7, 9)

"' (2012) 9 sec 696 (Paras 15 to 17)

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 PW! 5 have turned hostile. The evidence ofother witnesses in connection with the disappearance viz of PW3, PW8 and PW! 6, are contradictory. The evidence of PWl 7 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 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 ourattention 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 Cou1t clearly records that Accused No.2 was not present 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 oftbe deceased's body, is inadmissible and in any case cannot be used against other accused.

Further, the panchnama suffers from factual and procedural inaccuracies,

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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 PWl clearly show that the prosecution has fabricated the dental records of the deceased in an attempt to establish that the 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 prepar; d 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 oflicial 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, tlie 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 produced a table in his written submissions, pointing out the discrepancies in the judgment of the trial co mt 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 lnayatullab

v. The State of Maharashtra 12, and Stale of Himachid 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

11 AIR (1934) 1947 Privy Council 67 (Paras 10 & 11) "1976(1)SCC828(Paras 12to 16)

13 1999 (4) SCC 370 (Para 27)

A . 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 Cou1i, 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 fo1ihcoming. Fui1her, 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 eve11 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, PW 15 who claims to have seen Accused No.3. PW 15, however, has been declared hostile.Jn his cross exarnination, he stated that he had only seen a white car and could not see who was sitting therein. The above discrep'ancies are fatal to the prosecution casl.l as it puts fo1ih 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 tiled 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 aUeged 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 PW! 7. 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 state that the panchnama H could only be accepted in pa11 and was only true to the extent that it

CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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 eriously 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 II.D. Sikand (D) Through L.R.S. vis Central Bureau of Investigation and Anr.14, Hodge's Case15 and Pawan Kumar Vs.

State of Haryana'6• • ·

33. In reply, Ms. Kiran Suri, learned Senior Counsel appearing for the prosecution, first submits that the accused had conspired With 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, I 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. I and 2 were involved in financial irregularities of the temple funds and that their continuation at Vadtal was threatened by the deceased's proposal to transfer the Kotharis out of the Vacftal Temple.

Thus, there was clear apprehension in the minds of Accused Nos. I and 2 that they would be replaced. Ms. Suri in support of this argument has relied on the evidence of PW3, PW5, PW2 I, PW22, PW33, PW35, PW36, PW37, PW39, PW40 and PW41. Further, contends Ms. Suri

"2016(12)Scale892(Paras 15, 18)

" English Reports 168 Crown Cases, Liverpool Sununcr Assizes, 1838 "' (2003J 1 f sec 241

. suPREME COURT REPORTS


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 PW 16 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, PW 16 states that he initially saw the blue car (in which . the deceased was taken away) near the temple steps and later, tlv~ said blue car, along with Accused No.3, had disappeared. This has been substantiated by the evidence of PW 1 S wherein he claims that he saw Accused No.3 with the deceased at the relevant time, even though PW IS has turned hostile. Further, the car used 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.

3 7. 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.S. 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 cf 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 roo1n at Navli while Accused No.2 waited outside the room. Additionally, the statement made by PW20 that 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 panclmama sets out the real incident wherein the deceased was mudered 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

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

the garage of PW 13. 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 deceaseds body and its identification .. PWSO 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 PW 1, 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 Cou1t should be loath to interfere with the concurrent findings of guilt recorded by the two Couits against the appellants herein. Ms. Suri has relied upon the reported decisions in the cases of Pandurang Kain Patil and Another v. State of Maharashtra1', State (NCT of Delhi) v.Navjot Sandhu alias Afs:an Guru 18, Udai Bhan v. State of U.P.19, State of Maharashtra v.

Damu20, H.P. Adorn. v. Om Prakash21 and Vasanta Sampat Dupare

v. State of Maharashtra22•

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) panchnamadrawn on the basis of disclosure made by Accused No. 5;

17 2002 (2) SCC 490 (Paras 14 & 15) "2005 (11) SCC 600 (Paras 114. 115 to 118. and 120 to 144)

19 1962 Supp (2) SCR 830 '" 2000 < 6) sec 269 (Para 3 7) 21 1972 <ll sec 249

22 (2015) I SCC 253 (Paras 23 to 29)

128 SUPREME COUR'f REPORTS

[2017) 3 S.C.R.

(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. ln 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 C 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 couitand the finding of guilt against him has been affirmed by the High Court. Accused No. 3 has not tiled any appeal against his conviction, That leaves us to consider the case against Accused Nos . .I, 2 and 5 in D . 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 l 8 of 11.D. Sikand (supra); and Sharad Binlhichand Sarda v. State ofMaharashtra23). At the same time, we must remind ourselves of the settled legal position that this Court should be loath to ove1turn the 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 atthe 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 ofGadadharanandji at the relevant

" (1984) 4 sec 166

CHARANDAS SWAMI 1. STATE OF GUJARAT & ANR. [A. M. KHANWlLKAR, J.]

time. After Gadadharanandji returned. PW3 pressed his legs for about half an hour and left the room at around I :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 Gadadharanandj i 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 l'W33 were also present. PW8 has also staled that Gadadharanandji arrived at the Vadtal Temple in a vehicle about half an hour later, after which l'W3 and he went inside the room ofGadadharanandji 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. PWI 6 has also deposed that on the day of incident at around I :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. Fi-om the evidence of these witnesses, the presence of Gadadharanandji at Vadtal Temple complex on 03.05.1998 between 12:00 - l :30 P.M. is indisputable. No serious argument has been advanced to cha I lenge 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 atler I :30 P.M. For, the prosecution has not produced any direct evidence regarding the manner of disappearance ofGadadharanandji from the Vadtal Temple, as to whether he waB 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 we!I as the Appellate Court have relied upon the evidence of PW I 5 and 16, for having established the aforesaid fact. The prosecution has also relied on the evidence of PW3 and PW 14. But PW3 does not claim to have personally seen Gadadharanandj i 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. PWl4 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 going in a car from Vadtal Temple. PW 15, 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 PW 15 or challenged the version of his presence at the spot spokeil by this witness in any manner. 'fhe Com1s below have accepted the version of PW! 5 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 PW 16. The courts below have accepted the evidence of PW 16 as truthful and reliable. The criticism by the appellants, however, is that the presence of PW 16 has not been spoken either by PW3 or by PW8. From the evidence of PW 16, however; it is seen that PW 16 arrived at the room ofGadadharanandji at around 1:00 P.M. - 1:15 P.M. when PW3 and PW8 had already left PWl6 along with one Gandalal remained inside the room of Gadadharanandji for some time and he (PW 16) served him for around five minutes before leaving the room. PW 16 thereafter went to the nearby machine room from where he saw a blue colour car parked nearthe steps of the temple, in which Accused No.3 was sitting. He then went to sleep and when he woke up arounµ 2:00 - 2:20 P.M., the said blue car and Accused No.3 was not seen. The Cou11s belo\V after analyzing this evidence, have recorded a concurrent finding including by weighing the admissible part of the evidence of hostile witnesses and of PW 16. 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 ofGadadharanandji from Vadtal Temple.

The discrepancy in the evidence of these witnesses has been considered by the Trial court before it recorded the findii1g on the circumstance under consideration. Even the Appellate Court reached at the same conclusion independently. 89th 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

CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR ..

[A. M. KHANWILKAR, J.]

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 thereafter until his dead body was found on 41h 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 unassai.lable. It is neither perverse hor warrants interference by this Court.

45. The dead body of deceased Gadadharanandji was fourid on 4th May, 1998 in a burnt condition in a ditch behind the house of PWSO

in Barothi village in Rajasthan. How the dead body ofGadadharanandji 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 41h 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 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.Jto 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 41h May, 1998 on the information given by PWSO to the local police at Barothi. The fact that the dead body was already recovered from the same place on 41h May, 1998 and so noted in the public records in the State of Rajasthan does i10t undermine the admissibility of the disclosure made by Accused No.3 to the investigating officer about the location where the dead body of Gadadharanandj i was dumped by him, which information was exclusively within the personal knowledge of Accused No. 3. The fact that the dead body recovered on 41h May 1998 was of Gadadharanandj i, was unraveled and discovered only after the results of its medical examinariori became available to the investigating agency. Till then, it was considered to be of an 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 ofGadadharanandji 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 c01ifined only to lhe discove1y of a maleriul (lbject and the knowledge of the accused in relation thereto or the discove1y could be in respect of his mental state or knowledge in relation lo certain things - concrete or non-concrete.

(ii) Whether it is necessary that the discove1y of fuel 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 i11for111ulion .fi1rnished by the an used - whether can be put against him under Section 2 7. "

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:

 "J20. The histo1y of case-law on the siibject of confessions under Section 27 unfolds diverge11t views and approaches.

The divergence was 111ainly on twin aspects: (i) Whether the facts contempluted by Section 27 are physical, material objecl:v or the mental .facts.of which the accused giving the iliformation could be said to be aware of Some Judges have gone to the extent of holding that the discove1y of concrete .fc1cls, that is to say 111ateriul 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 iliformation. which serl'ed lo connect the object with the

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case which has been described as a locus clussicus. hud set al resf much of the

co11t1~01'ersy thul cenlred round lhe i11/erprelation of Section

27. To a great extent the legal position has got cryslallised wilh the rendering of this decision. The auihority of the Prhy Councils decision has not been questioned in any of the decisions of the highest court either in the pre-or postindependence era. Right .from the 1950s, till the advent of the new cenlwy and till dale. the passages in this famous decision are being approvingly quoted and reil<pated by !he Judges of this Apex Court. let, there remain certain grey areas as de111onstra1ed by lhe argumen/s adranced on behalf of lhe Slate.

121. The jir.\'f requisite coiidilion jur utilising Sec/ion 27 in supporl of the proseculion case is that !he investiguling police ojjicer should depose lhat he discovered a fact in consequence of the i1!for111alio11 received ji-0111 an accused person in police cus/01~)'. 1hus, there mus/ be a discovery of fact not within the knowledge of police o.fficer us a consequence of il!fim11ation receired. ()(course, ii is axiomatic that the iliformalion or disclosure should be free from any element of compul.ion. The next component of Section 27 relates to !he nature and extent of il!formalion !hat can be proved. It is only so much of !he information as relates distinctlv 10 th_eJJ!si.ihere]2y_ 1liscovered that Cf/11 be proved and nothiJJlLJ!_l.Qre. It is e.Y.JJlJ.f; iJ.}y_ clarified in the sec/ion that there is 1/0 tahoo against receivi11'.!,.2J!Ch information in ev id<! 11 c e 111 ere.fy_ be Cf!J.I~~ e i U!!!!.P u !l!!i..J.!!....!Lt:; o 11kssio11.,.A.1.JfJ.g_ same ti111e. the last clause makes it clear that it is not the

corlf_es.~.ional_part that is ad111issible but it is onlv such !JJ.formati.f!IL.Q!_..f!.Y!lJJi.JL which relates distinctly lo the fact discovered by means of !he informal ion furnished. Thus, the infor111ation conveyed in the statement lo the police ought lo be dissected if necessmy so as to admit only the injimnation of the 11a1ure 111enliomd in the section. The rationale behind LbiLJZEO 1' f§i o n_js_J!JJ.1 t ... if..JL]gs.l_j !i...J!fL!!.?J]jy dis~: o v ere d in conse11ue11ce o( the ir/iJr111al_io11 supplied. it a{[ords so111e

)34

guarantee that the information is true and can therefore be safelv allowed to be admitted in evidence as an incriminating factor against the accused. As poillfed out by the Privy Council in Kottaya case64: (AIR p. 70, paia JO)

"clearly the extent of the information admissible must depend on the exact nature of the fact discovered"

and the information must distinc(ly relate to that fact.

Elucidating the scope of this section, .the Privy Council 5peaking through Sir John Beaumont said: (AIR p. 70, para

10)

"'Normally the section is brought into operation when a person

il.1 police custody produces .fi"om some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected wilh the .crime of which the informant is accused."

We have emphasised the word "normally" because the illustrations given by 1he leained Judge are not exhaustive.

The next point to be noted is thal 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.

Such contention of the Crown ; y counsel was emphatically rejected with the following words: (AIR p. 70, para I 0)

) "If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections 011 confessions made lo lhe 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 lifl the ban be the inclusion in 1he confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal lo lhe occasion, and that in practice

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 135

[A. M. KHANWILKAR, J.]

the ban will lose its effect. " A

Then, Their Lordships proceeded to give a lucid exposition of the expression 'fact discovered" in the following passage, which is quoted (ime and again by this Court: (AIR p. 70, para JO)

"Jn 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 ihe accused as to this. and the in/(mnation given must relate distinctly to this fact. Information as to past user, or the past 'history, of the object produced is not relu!ed to its discovery in the setting in which it is discovered. Jnformalion supplied by a person in custody that 'I will produce a knife concealed in the roof of

111y house' does not lead to the discove1y of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is, concealed in !he 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 s/atement the }i1ords be added 'with which I stabbed A' these words are inadmissible since they do not re/ale 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 Section

27 is not limited to "actual physical material object". It further noted F 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 oflaw in Udai Bhan (Supra) that, "A discovery of a fact includes the object found, the place from which G 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 ifthe physical object was not recovered at the instance of the. accus;;:d .. That issue has been answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of'.he reported judgment. In paragraph 139, H

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, recovc1y 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 i11for111ation from the accused, there would 1101 have been any discove1y of any fact c.t all.

But when the broken glass piece was recovered ji-0111 that spot and thut piece was found to be part of the tail lump of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered 1he fact that A-2 Gunlji had carried the dead body 011 that parliculur motorcycle up to the spot."

(emphasis supplied).

The Cou1t th.:11 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 l'rakash (supra) which distinguishes Damu's case because there was discovery ofa related physical object at least in part.

We may usefully reproduce paragraph No.142 to 144 of the same repo1tcd decision, wherein the Cou1t observed thus:

"142. There is one more poi11t which we would like to disrnss i.e. whether pointing 0111 a material object bv thf..J!.f.Cused fltrnishing_Jhe i11(or111atio11 is a necessarv concomitant of F Section 27. We think tlwt the a11swer should be in lhe negative.

Though in most of the cases the person who makes the disclosure himself leads the police <![ficer lo lhe place where an object is concealed and points out 1he same to him,

however, it is not esse11Jial that there should be such pointing G out in order to make the in.formation admissible wuler Section

27. it could very well be that on the basis of in.formation

fi1rnished by the accused, tl1e inves1iguling <fficer may go to the spot in the co111pw1y of other witnesses and recover the

material object. !}y_Jloj_1J ... 'S..EJ, tl11tJ!!!'f§JjgQti11g oll/cer will be discovering a fact viz. the co11ceu/111e11t of an incriminating H

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. Kl-IANWJLKAR, J.]

article and the knowledge of the accused furnishing the information about ii. In olhif.r.JJ:.(J.J:.@., where the information fiwnished by the person in custod11 is verified bv the police o[ficer by going to the spot mentioned by the informcmt alllf

fJ.nds it to be correct. thCJL!!!/l!!lll7ih" to discovery_gf_Jgcf within the meau}J.ll! o{Secti911 27~ Q[course. it is subject to :he rider

(jlll t {he i !![Qrll !QI i o l~_!i2_}jtr n i !f.f}_(!_d__]J.gjj_Jh e iJ.!J. 111 e J}j_a I e a II d

proximate cause of discoverv. If the police officer chooses not to take the i11jim11mit accused to the spot. it will have no bearing 011 the poil/f of admissibility under Section 27, though ii may be one of the aspects that goes into evaluation of that particular piece of evide11ce. "

"143. How the clause "as relates distinctly to the fi1c1 thereby discovered" has to be understood is the next point that deserves consideration. 711e interpretation of this clause is not in doubt. Apart from Kottaya case various decisions of this Court have elucidated am/ c/arUied the scope a11d 111ea11ing of the said portion ()f Section 27. The law has been succi11ctly staled in l11ayatullah case. Sarkaria . .!. analysed the ingredients of the section and explained the a1abit and nuances of this particular clause in the ji1llowi11g words: (SCC p. 832, para 12)

"The l<I.,'!L bi1Ube !ll!J.lL.i!..1JJZS!rlc1Jl_/_.i-.'f!!J..d.l{j!!JLlS thqj__onlv 'so much o[the infim110/io11 'as re/ales d~lincthto the fact therebv discovered_ is ad111issible. The rest <l the information has to be excluded. The word 'dis/i/l(:/ly' means 'directly', 'indubitably', 'strictly', 'u11111istakobly '. The word has been advisedly used lo limit and define the scope of the provable iliformalio11. If1e phrase 'disti11c1/v relates lo the fr.1c1 thereb)I discovered' is the li11chpi11 of the fJrllVision. This phrase refers to lhaLpart of the in(imualion sypplied bv the accused whicfJ. is the direct and immediate cause o{lhe discnverv. The reason behind this partial lijiing of the ban against confessions and stale111e111s made to the police, is that if" a fact is auually discovered in consequence ()f i11foi111ation given by the accused, ii l{ffords some guara111ee of truth of that part, and that part only, of the i11for111alio11 which was !he elem~ immediate and proximate cause of the discovery. No such

1-1

A guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. "

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

excluded a part of the disclosure statement to which we have B 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/act thereby discovered, are ve1y 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 Dupure (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 lo be kept in mind. The Privy Council

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

" ... it is fallacious lo treat the 'fact discovered' within the section us equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accziyed 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 t~ the discove1y 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 bee1i used in the co111111issio11 of the offence, the

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 139

[A. M. KHANWILKAR, J.]

fact discovered is ve1y relevant. But if to the statement the A words be added 'with which I stabbed A ', these words are inadmissible sil1ce they do not relate to the discove1y 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 B 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 worlhwhile C al tbe outset, to have a short and swift glance at the secli01i and be reminded of its requiremenls. The section says:

27, How much of information received fi'0/11 accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received fi'om a o person accused of any offence, in 1he custody of a police officer, so much of such injimuation, whelher it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

I 2. The expression "provided Iha!" loge I her wilh lht! phrase E "whelher it amounts lo a confession or 110/'' show that the section is in the nature of an exception to !he preceding provisions particularly Sections 25 and 26. It is not necesswy in this case lo consider if this sec/ion qualifies, tO any extent, Section 24, also. It will be seen that !he first condition necessmy for bringing this section into F operation is the discovery of a fact, albeil a relevant fact. in consequei1ce .of the information received from a person accused of an offence: The second is Iha! the discovery of such fact must be deposed to. The lhird i~ that at the time of the receipt of the information !he accused must be in . G police custody. 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", H

"stric1ly ". "1111111istakably ". The word hus been advisedly used to limil a11d define the scope of the prowble information. The phrase 'distinc1ly relates to the fact thereby discovered" is the linchpin of !he provision. This phrase refers to !hat part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this pdrtial lifting of the ban against confessions and sta1eme111s made to !he police. is . that if a fact is actually discovered in conseqiienr:e of

informa1io11 given by the accused, it u.ffords some guara/1fee of truth of that part. and that purl only, o.f !he il?fiirmation which was the clew; immediate and proximate cause of the discovery. No such guarantee or asrnrance al/aches to the rest of the slalement which' may be indireclly or remotely relaled lo lhe fact discovered

13. d.I ong_J.l!.1ie_£! iras __ helJ-1.lwt !he expression :lac..1 discover<A" in the secti<ln is reslricled 10 a phvsical or material fact which can be_JJerceived bv the .enses, and that it does not include a mental (act (!j_ee Suklwn v. E111pero1: Ganu Chandra Kashid 1: Empror).

NqJJ:..il iLJ'g_id\l . .!iJ!.flle_d 1hat thf__Q/2re.si01 "fact discovered" includes not onlv the phvsicl!_/_Q/JJ.!LL:.!...JZ.roduced, b111 also the place {i-0111 which it is prod11ce, I and the k11owleggg__2[

[_}Jg_ __ acqg<_!__d__ as to t/]is (see Palukuri Kotayya v. E111per01; Udai Bhan v. State of UP). (emphasis in origi11al)

25. !11 Ajiab Ahmad Anusuri v. State <~( Uttaranclwl after referring to the decision in Palukuri Kotayya, the Court adverted to seizure <~(clothes of the deceased which were C<mcealed by the accused. In !hat co111exi, the Court opined thut: (Aftab Ahmad Anasari Case, SCC p. 596, para 40)

"40 .... the part of !he disclosure statement, 11a111ely, 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 the Evide11ce Ac1 because the same relates distinctly to the discovery of !he clothes of the deceased jiom that ve1)' place. The co111e11tio11 that e'.•en if ii is ussumed jiir the sake of argu111e11t that the clothes of

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

the deceased were recovered jiom the house of the sister of the Appellant pursuant to the voluntary disclosure state111e11t 111ade by the Appellant, the prosecution has failed to prove that the clothes so recovered belo11ged to the deceased and therefore, the recove1y of the clothes should not be treated as an i11cri111inating circu111stance, is devoid of merils. "

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

"35 ... .ft is now well sealed that recovery of an abject is not discovery of a fact as envisaged in [Sectio11 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 i11for111ation given must relate disti11ctly to that effect. "

The similar principle has been laid down in State of Maharashtra v. Suresh, State of Punjab v. Gurnam Kall/; Ajiab Ahmad Anasari v. State of Ul/aranchal, Bhagwan Dass 1' State (NCT of Delhi) . Ma11u Sharma v. State (NCT of Delhi) and Ru111i 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 ofjice1; the recove1y had taken place in consequence of i11for111ation furnished by him and the panch wit11esses 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 omcer lo find out the wot where the crime iras co111111i11ed, a11d the tap where he washed the clothes eloyuenily speak of his conduct as the same is ad111issible in evidence lo establish his conduct. In this context we may refer wilh projit to the authority in Prakash Chand v. State (Delhi Ad11111.) wherein the Court after referring to the decision in H.P. Ad11111. v. Om

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

''8 . ... There is a clear distinction be/ween the conduct of a person against whom an offence is alleged, which is admissible Under Section of the Evide11ce Act. if :rnch conduct is influenced by any fact in issue or relevant fact and the statement made ta a Police Officer in the course of an investigation which is hit by Section 162 of !he Code of Criminal Procedure. What is excluded by Section 162, Code of Criminal Procedure is the statement made lo a Police Officer in the course of i11vestigation mid not the evidence relating ta the conduct of an accused person (not amounting to a state111e11t) whe11 confronted or questioned by a Police Officer during the course of an i11vestiga1io11.

For example, the evidence of the circumstance, si111p/ici1e1; that a11 accused perso11 led a Police Officer a11d poi111ed out the place where stolen articles or weapo11s which 111i!f.hl have been used in the commission of the a.ff'e11ce were found hidden, would be admissible as conduct. Under

Section~ of the Evidence Act, irrespective of whether w1y statement by the accused contemporaneously with iJr antecedent to such conduct falls within the purview <!f Section 27 of the Evide11ce Act."

29. 111 A.N. Vekatesh and Anr. v. State of Karnataka it has been ruled that: (SCC p. 721, para 9)

"9. By virtue of Sec/ion 8 of the Evide11ce Act, the conduct of the accused person is relevant, if such co11duct influences or is influenced by any fact in issue or relevant fact. The evide11ce of the circu111sta11ce. simpliciter. that the accused pointed out to the police officer. the place where the dead body of the kidnapped bov was found and 011 their pointi11g out the body was exhumed. would be admissible as conduct Under Section 8 irre.1pec1ire of the fact whether !he sta/e111e111 made bv the accused conte111porang_Quslv with or antecedent to such co11duct falls within the purFiew of Sec{ion 27 or 11ot as held by this Court in Prakash Cha11d v. S1a1e (Delhi Ad11111.). Even if we hold that the disclosure statement made by the

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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, isan adniissible 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 11ias to be fulfilled and their action of fleeing on spotting the police parly 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 D discovered by the Investigating Officer (PW64) on the basis of the disclosure made by the Accused No.3 on 2"d April 1999, after his arrest on 29th March, 1999, as recorded in Exh. 188. The panchanama Exh. 188 was proved by pancha witness PW30. The fact that PW30 was not on good terms with the accused cannot be the basis to discard his evidence.

This aspect has been consid'ered by the High Court and in our opinion, E rightly, that the evidence of PW30 was relied upon forthe 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 ofGadadharanandji was disposed ofby .

Accused No.3. The same stood corroborated from the recovery of a F dead body of an unknown person from the same spot by the Rajasthan Police on 4'" May, 1998 on the information provided by PWSO. That dead body, on subsequent medical examination was found to be of none. other than that ofGadadharanandji.

49. As regards the identity of the dead bocjy, the Courts below G took note of the evidence of PW57 and PWSO. PWSO had informed the local police of Barothi on 4'" May, 1998 about the dead body of an unknown person lying at the same spot, later on discovered to be that of Gadadliaranandji due to the disclosure made by Accused No. 3. PW57 conducted the post-mortem of the burnt dead body found at Barothi H

village in Rajasthan. He deposed that the death 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 rsults of the skin sample of the body which matched with the blood samples of the biological sister of the deceased. Additionally, PW I 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 PW 1. 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 evirlence 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 him and that being the same place in Barothi vii I age in Rajasthan from where the dead body of an unknown person was recovered earlier by the local police.

50. That brings usrto the efficacy of the disclosure made by Accused No.S to the investigating agency - the place where Gadadharanandj i was brought from Va<ltal Temple and the crime of murder was finally executed. The disclosure so made by Accused No. 5 on 18' 11 A pri 1, 1999, after his arrest, has been corroborated by the panchanama Ex.198 proved by pancha PW31. The Accused No.5 diselosed the room number in Navli Temple complex where Gada<lharanandji had stayed on the day of incident. The Cou11s 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 obviou5 that Gadadharanandji was taken away by Accused No.3 in a car from Vadtal Temple complex and brought to Navli Temple complex on 3'd May, 1998

itself.His dead body was dumped in a ditch in village Barothi in Rajasthan (another State) which was traced on 4' 11 May, 1998 as a consequence of H

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 145

[A. M. KHANWILKAR, J.]

ti1e information given by PW50.

51. We shall now deal "ith 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 circumst1rntial evidence as well as the ocular evidence to the extent it is admissible. The evidence of PW25 and PW49 atthe Navli TenJple 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 ofGadadharanandji.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 infonnation has also been produced at Exh. 242, while receipt qf such information is produced at Ex. 243. The defence has 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 number9825017197.

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 l 81h April 1998 to 2o•h May 1998. The aforesaid exhibits also reveal that on 2"d May 1998, there were calls made between the said numbers on two occasions. On the day of the incident i.e. 3'd May 1998, the number 9825017197 used by Accused No.2 received six calls from the telephone number of PW25 between 5: lOPM and 6:55PM. On4•h May 1998, the number9825017197 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 adouced by Accused No.2 to dispel the same. It is clear from the above conduct of the parties that PW25 was well acquain, ted with Accused No.2. PW64

investigating officer has deposed that PW25 made a statemerit 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 PW 64 that on 2"d 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. Jrd 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 thathe brought PW49 to Navli at around 2: I 5-2:30PM, 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 hercinabove, 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 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 (PW~4) to give her statement on 2nd 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 complex by PW25 on 3rd May, 1998, where Accused No.2 and Gadadharanandji were present.

54. The presence of Accused No.2 at the Navli Temple on 3rd 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. Fut1her, on Jrd May,

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

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 ifthe 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 J'd 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.

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: I 5PM. 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 I 0-15 minutes.

PW3 has deposed that at the time of leaving from Nadiad, the accused received a call from Accused No. I 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 toAhmedabad, 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 3n1 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 e,; omplex.

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: 1 SPM; 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

PWI 7 at Vadtal, gone to Navli at around 3:00PM and remair.ed there

1-1

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 PW 13. Thereafter insurance claim was filed on 61h May, 1998 (Ex.129) in the name of the car owner (PW! I) under the signature of Accused No.3 as an accident case. However, the 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 PW3 I .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.

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. I, 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. I and 2 were irked by the proposal of the deceased Gadadharai1andji to transfer them immediately after taking over as the Chairman of the Board of Trustees of the Vadtal Temple on 11th April, 1998. The Courts below have adverted to the evidence of PW3, PW5, PW33, PW3 7 and PW39 and after analyzing

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

the same, took the view thatthere was strong motiveTor Accused No. I and 2 to murder Gadadharanandji as they felt threatened about their current position and oflosingcontrol over the affairs of the Vadtal Temple.

Resultantly, the Accused Nos. I 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 appllants mainly on the ground that such a case was a figment of 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.J.R. but were dropped in the eventual chargeshcet filed by the investigating agency docs 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. l 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. I 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 during their exa.nination under Section 313 of the Code. This argument needs only to be rejected, in that the prosecution case against Accused Nos. I 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. I) 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). ln 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. I 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. I and 2, a fact which has not been challenged by the said appellants. In other words, the future prospect of Accused Nos.3 to 5 was fully dependent upon the existence and continuation of the Accued Nos. I 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 involvemerit 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 PK 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 a1id after the occurrence indicating complicity of the Appellants. These circumstances were not compatible with the possibility of innocence of the Appellants; and 111oreso because of absence of any explanation from them. We are in agreement with .the view so taken by the two Courts, about the involvement of Accused Nos. I, 2, 3 and 5 in the commission of the offence in question.

62. Relying upo1i 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 effo11 to persuade the Court

CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.

[A. M. KHANWILKAR, J.]

about the several other discrepancies - such as about the age of the 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 everits

indicative of the involvement of the Appellants in commission of the crime. The circumstances taken into account by both the Courts an\! 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 qf the crime. The Courts below have rightly noticed that he was involved, right from the disappearance ofGadadharanandji 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 ag(eement with the conclusion reached by the Courts below that there is sufficient evidence to indicate the corplicity of Accused No. 5 in commission of

B .

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 E 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. I, 2 and 5 (appellants herein). For, the prese1ice of Gadadharanandji at Vadtal _, Temple complex on the day of incident, the evidence that he was last seentogether 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 ofRajasthan onthe next day ofdisappearance ofGadadharanandji, the disclosure made by Accused No.3 about the location as to where the dead body ofGadadharanandji 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 ofnone other than that of Gadadharanandj i, the disclosure made by Accused No.5 of the location where Gadadharanandji was strangleJ at Navtl 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 ofGadadharanandji 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 opii1ion recorded by the Cowts 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. I, 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.

Nidhi Jain Appeals dismissed.