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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1549 OF 2007

Charandas Swami     …Appellant

Versus

State of Gujarat & Anr.          …Respondents

WITH

Criminal Appeal Nos.1550 of 2007 and 1586 of 2008

J U D G M E N T

A.M. KHANWILKAR, J

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

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

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

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

dated 1st September, 2006. The High Court has upheld the decision

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

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

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

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Gadadharanandji. The High Court, however, has acquitted Accused

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

sentence  awarded  by  the  Sessions  Court  to  a  sentence  of  life

imprisonment for the aforementioned four accused. Accused No.3

has not filed any appeal before this Court against the impugned

judgment.

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

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

under:

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

Vadtal  Gadi  Temple  comprises  of  8  members,

including  the  Chairman  and  Chief  Kothari,  who

handle  the  administration  and  financial

management of the temples run by the sect.

(b)One Gadadharanandji was elected as the Chairman

of the Board of Trustees on 11th April 1998. At that

point  in  time,  one  Bhakti  Dasji  was  the  Chief

Kothari and Narayan Shastri  (Accused No. 1) was

the Assistant Kothari.  Charandas Swami (Accused

No.2)  was  informally  working  as  an  assistant  to

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Accused  No.  1,  while  Madhav  Prasad  (Accused

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

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

Accused Nos.1 and 2.

(c) On 16th April, 1998, an agenda was circulated for a

meeting of the Board of Trustees to be held on 22nd

April,  1998,  wherein  the  Chairman,

Gadadharanandji, proposed to transfer the Kotharis

away from the Vadtal Temple. That move was not

approved by  the  rival  camp.   They  also  feared of

being  exposed  of  their  misdeeds  and

maladministration.  

(d)On 3rd May, 1998, Gadadharanandji  went missing

from the temple premises. The next day i.e. 4th May,

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

Village,  in  the  neighbouring  State  of  Rajasthan

which  was  subsequently  identified  as  that  of

Gadadharanandji.  A  post  mortem  of  the  body

revealed that the cause of  death was asphyxia by

strangulation.

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

Bhagat  (PW3)  filed  a  missing  person  complaint

about  the  sudden  disappearance  of

Gadadharanandji with the local police on 5th May,

1998. This complaint was transferred to the local

crime branch and then the state crime branch. PW3

subsequently filed a petition before the High Court

of  Gujarat,  which  transferred  the  investigation  of

the case to the CBI on 5th October 1998.

(f) The CBI eventually on 29th October, 1998 registered

a  new  FIR  against  some  persons,  including  the

Appellants,  for  kidnapping  Gadadharanandji.

During  the  course  of  investigation,  all  the  five

accused  were  arrested  in  connection  with  the

disappearance of Gadadharanandji.

(g)The  investigation  established  the  chain  of  events

leading to the  disappearance  of  Gadadharanandji.

According  to  the  prosecution,  the  accused

kidnapped  Gadadharanandji  from  the  Vadtal

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

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Navli  Temple  complex where  they procured a  call

girl  for  him,  after  which  they  sedated  and  then

strangled him. However, this chain of events was at

odds with the panchnama drawn at the behest of

Accused  No.  3  wherein  he  is  stated  to  have

confessed  that  he  himself  kidnapped

Gadadharanandji from the temple, drove him to his

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

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

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

claimed that he returned with the deceased’s body

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

the  deed and then took Accused No.5  along with

him to Rajasthan where they disposed of the dead

body  of  deceased  by  throwing  it  in  a  ditch  and

lighting it on fire.

(h)Post-investigation,  the  Chief  Judicial  Magistrate

vide his order dated 10th August, 1999 remitted the

case against all the five accused. The trial proceeded

before the District and Sessions Court at Kheda at

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Hadiat,  being  Sessions  Case  No.  369  of  1999.

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

364, 302 and 201 of the IPC were framed against

the Accused.

(i) On  11th June,  2004,  the  Sessions  Court,  Nadiad

convicted  all  the  five  accused  for  offence  under

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

them  to  death.  The  Accused  were  also  convicted

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

rigorous imprisonment for life. Accused Nos. 2 and

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

and sentenced to 5 years’ imprisonment.

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

of  Gujarat  which  was  heard  alongwith  the

confirmation reference.  The High Court confirmed

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

but  acquitted  Accused  No.4.  The  High  Court,

however,  commuted  the  death  sentence  to  a

sentence of life imprisonment.

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

misappropriating  funds  from  the  temple  in  which  they  were

functionaries. Gadadharanandji, being the newly elected Chairman

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

accused  from  the  Vadtal  Temple.  This  proposal  bewildered  and

irked the accused.  They conspired to and subsequently murdered

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

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

Rajasthan where they burned it to destroy the evidence.  

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

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

charges  against  the  appellants  broadly  on  the  following  basis.

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

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

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

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

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

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

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

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

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

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

the income generated by the temple was substantial and Accused

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

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

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

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

These transactions would obviously have been possible only with

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

the administration and financial transactions of the temple at the

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

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

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

was also a large amount of unaccounted cash recovered from the

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

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

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

the temple.  

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

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

influence the transfer of the Kotharis and had even discussed the

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

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

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

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

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

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

rebel  against that move.  While the accused suggested that  there

were  other  persons  who  bore  enmity  towards  the  deceased  and

wanted  him  killed,  no  evidence  was  brought  on  record  to

substantiate the same by the defence. The prosecution case about

motive  of  the accused to  commit  crime was corroborated by the

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

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

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

deceased  and  last  seen  theory.  The  fact  that  the  deceased

disappeared on the afternoon of 3rd May, 1998, is indisputable. This

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

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

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

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

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

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

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

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

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

That was found crucial.  

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

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

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

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

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

Temple at around 2:30 PM on 3rd May, 1998; Accused No.2 met him

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

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

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between  the  Vadtal  and  Navli  Temples  could  be  covered  within

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

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

hostile,  she  admitted  to  have  given  her  statement  to  the

investigating  agency  wherein  she  identified  the  deceased  and  of

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

has been corroborated by an independent pancha witness.

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

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

murder  was  committed.  There,  PW31  found  tablets  which  were

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

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

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

accepted as reliable.

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

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

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

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

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exposed of the financial irregularities committed by him in the past

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

a conspiracy to kidnap the deceased with an intention to murder

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

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

the  spot  where  the  offence  was  committed.  The  conspiracy  to

commit  the  murder,  while  not  proved  through  ocular  evidence,

could  be  established  through  circumstantial  evidence.  While

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

for criminal conspiracy.  

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

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

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

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

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

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

the  body  were  taken  and  subsequently  identified  as  that  of  the

deceased after  performing a  DNA test  with blood samples of  his

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

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

The investigating agency was informed about the spot of disposal of

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

independent witnesses. The trial court rejected the argument that

the  investigating  agency  used  witnesses  who  were  already

pre-disposed against the accused.  

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

showed  that  the  death  of  the  deceased  was  not  accidental  but

homicidal. The deceased had been strangulated. The argument that

since  the  body  had  suffered  certain  bone  fractures,  therefore

strangulation  could  not  have  been  the  method  of  murder,  was

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

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

because of the advanced age of the deceased.

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

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

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

conspiracy among the accused to commit the murder.

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

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

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

in  which  they  had  transported  the  deceased  and  then  claiming

insurance  for  the  same  as  an  accident  case.  The  insurance

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

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

accident or internal malfunction.  

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

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

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

his  evidence,  PW19 identified the chain and pendant and stated

that he exchanged the same with gold.  

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

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

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

case warranting the death penalty. Accordingly, a death reference

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

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

filed by the accused assailing the order of conviction and sentence

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

appraised the entire evidence afresh and recorded an independent

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

at the outset noted that the prosecution was not supporting the

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

category  of  rarest  of  rare  cases  warranting  death  penalty.  After

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

as to whether the prosecution had proved the charges against the

Appellants beyond any reasonable doubt.   

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

a) In light of the judgment in  Subbaiah Ambalam v

State of Tamil Nadu1,  the High Court decided to

examine the entire evidence before it, independent of

the  findings  and conclusions of  the  trial  Court.  It

noted  that  the  jurisdiction  of  the  High Court  was

1

AIR 1977 SC 2046

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

appraising and appreciating evidence.  

b) Then,  adverting  to  the  evidence  of  PW57  who

conducted the autopsy of the burnt body found at

Barothi, the High Court opined that the burns were

post-mortem  and  not  ante-mortem.  The  fracture

found  on  the  body  was  probably  caused  as  the

deceased struggled while being strangulated or due

to mishandling of the dead body. The presence of a

fracture does not indicate that there was any other

cause  of  death.  Death  was  due  to  asphyxia  by

strangulation.  The  burning  of  the  body  was  an

attempt to destroy the evidence. The condition of the

heart  of  the  deceased,  though  disputed  by  the

counsel  for  the  accused,  could  not  rule  out  the

possibility that death was caused by strangulation.

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

Court took note of the following:   

i) PW57,  who  conducted  the  autopsy  of  the

dead body found at Barothi, deposed that a

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key tied with cotton thread was recovered

from near the dead body. This key opened

the lock to the room of the deceased at the

Vadtal Temple.

ii) Skin  samples  and  teeth  extracts  of  the

deceased were obtained and matched with

blood samples of the sister of the deceased.

DNA  testing  showed  a  biological  relation

between the dead person and his sister.

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

PW1  deposed  that  he  had  treated  the

deceased in 1993 and that he had put the

said gold caps on the teeth of the deceased

during  treatment.  This  is  corroborated  by

receipts  and diary entries of  PW1.  Certain

documentary  evidence  produced  by  the

prosecution vis-à-vis photocopies of the case

papers  seemed  to  be  exaggerated  with

regard  to  the  number  of  teeth  treated  by

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PW1. Still, the deposition of PW1 was found

to be reliable.

iv) PW20 had taken a video of the post mortem

carried out at the spot which corroborated

the items found on the body/samples taken

from the body.

d)  While  considering  the  evidence  regarding  the

circumstance  of  last  seen  together,  the  High  Court

broadly noted thus:  

i) The evidence of PW3 and PW8 corroborates

the fact that the deceased was present in

the  Vadtal  Temple  on  the  day  of  his

disappearance  i.e.  on  3rd May,  1998,  at

around  12:30PM.  The  witnesses  further

stated that they had left  the deceased in

his room while they went to get chappals

but by the time they returned at around

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

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ii) PW15 deposed that around the same time,

he saw the deceased sitting with Accused

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

deceased leaving with Accused No.3 in the

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

Even though PW15 had turned hostile, his

evidence could not be wholly disregarded.

iii) PW16 also deposed that he saw a blue car

at the steps of the Vadtal Temple around

the same time. Thus, an inference could be

drawn  against  the  accused  in  whose

company the deceased was last seen and

Accused No.3 failed to rebut the same.

e)  The  High  Court  then  considered  the  evidence

regarding the disclosure made by Accused No.3 during

interrogation.  That revealed to the police that the body

of the deceased had been dumped in a spot at Barothi

village  (Exh.188).  This  disclosure  was  considered

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

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f) The High Court then considered the criticism of the

defence  that  some  of  the  panchas  chosen  by  the

prosecution were hostile towards the accused owing to

prior  disputes  between  the  parties.  It  held  that  the

investigating  authorities  ought  to  have  been  more

careful  before  calling  upon  such  persons  who  had  a

prior history of dispute with the accused.  However, the

High  Court  opined  that  the  fact  remains  that  the

panchas were called merely to complete the formalities

of  preparing the panchnama.  Hence,  this  lack of  due

diligence  by  itself  would  not  render  their  evidence

inadmissible.

g) The High Court also considered the argument of the

defence that the case of the prosecution that they found

various  items  such  as  pieces  of  cotton  and  tablet

wrappers  at  the  place  of  the  alleged  offence,  seems

highly unlikely given the time lapse between the time of

the  offence  and  the  time  when  the  officials  actually

reached that place. The High Court noted that there was

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no evidence on record to prove how such lapse of time

and weather conditions would not lead to contamination

of such articles alleged to have been found.  

h)  The  High  Court  then  dealt  with  the  evidence

regarding  the  blue  car  in  which  the  deceased  was

allegedly transported to Navli and then subsequently to

Barothi village, where his dead body was found burned.

The High Court held that the prosecution has proved

that the car did not catch fire by accident but rather

was  intentionally  burned  by  the  accused  to  destroy

traces of evidence. This has been corroborated by the

evidence of the official of the insurance company which

insured the said vehicle.  

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

for the deceased, the High Court held that the evidence

of  the  cellphone  records  clearly  shows  that  Accused

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

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

around  the  time  of  the  incident,  most  presumably

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summoning PW25 and the call girl to the Navli Temple.

Additionally,  the  call  girl  herself  PW49,  identified  the

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

the  time of  the  incident.  This  fact  is  corroborated by

PW32.  Although  both  PW25  and  PW49  have  turned

hostile, the totality of prosecution evidence corroborates

the fact that PW49 was taken to Navli by PW25.  

j) The High Court also considered the argument of the

defence  about  the  possibility  of  involvement  of  other

persons who were inimical  towards the deceased and

were also named as suspects in the FIR.  This argument

has  been  rejected  owing  to  lack  of  any  evidence  in

support of the same.  The High Court held that mere

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

reason to commit murder.

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

failed to conclusively prove that the accused procured

specific kind of tablets for drugging the deceased.

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l)  The High Court also did not accept the prosecution

evidence of Accused No.5 having approached PW19 to

exchange the gold chain and amulet of the deceased, as

conclusively proved.  

m)  The High Court  held  that  the documents/receipts

found  in  the  house  of  Accused  No.1  proving  large

amounts of financial transactions conducted on behalf

of  the  Vadtal  Temple  and  purportedly  bearing  his

signature,  have  been proved.  The handwriting on the

documents  seemed  to  tally  with  the  handwriting  of

Accused No.1.  

n) The High Court then examined the circumstance of

criminal  conspiracy  hatched by the  accused.   It  held

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

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

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

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

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

intimacy  between  the  accused  by  itself  cannot  prove

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

accused have been charged with conspiracy to commit

murder.

o) The High Court then found that after the deceased

proposed the transfer of the Chief Kothari, it is Accused

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

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

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

purposely  took  PW3  and  PW33  out  from  the  Vadtal

Temple  to  an  event,  after  the  crime  had  been

committed,  to  allay  their  suspicion  as  to  the

whereabouts  of  the  deceased.  Additionally,  Accused

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

the evening while telling PW3 and PW33 that they would

be going to Ahmedabad/Zundal. This was presumably

to mislead them.  Later, both the accused surfaced at

the Vadtal Temple.  

p) The High Court found that there was clear evidence

warranting inference of conspiracy hatched among the

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accused to commit the murder of the deceased. Further,

considering  the  circumstances  surrounding  the

incident,  it  is  clear that more than two persons were

required  to  carry  out  the  crime.  The  fact  that  the

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

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

PW15 had also seen the deceased leaving from Vadtal

with Accused No.3.

q)  The High Court then noticed that the prosecution

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

incident was inadequate, as the material witnesses had

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

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

incident  occurred  but  this  would  not  be  sufficient  to

convict him. However, while dealing with the presence

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

was  present  from the  very  beginning  of  the  incident.

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

and  was  even  present  with  him  on  the  day  of  the

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incident.  Accused  No.5  even  led  the  investigating

officials  to  the  alleged  room  where  the  crime  was

executed in Navli. There is no reason to disbelieve that

evidence. The High Court held that the disclosure made

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

murder.  

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

present at Vadtal on the night of the incident, indicating

that  he was involved in  disposing  of  the  body of  the

deceased.  His  presence  with  Accused  No.2,  his

knowledge  of  the  murder  and  his  conduct  clearly

marked him out as a co-conspirator.

s) The  High  Court  while  considering  the  evidence

regarding  the  circumstance  of  motive,  noted  the

following aspects:

i) The  seizure  of  large  amounts  of

unaccounted  cash  as  well  as  the

presence  of  large  amounts  of

investments from Accused Nos.1 and 2

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goes  to  show  the  level  of  financial

dealings  of  the  said  accused.  No

explanation has been offered by the said

accused  in  that  regard.  Obviously,  the

said  cash  was  illegally  obtained.  This

goes  to  explain  the  common  motive

behind  the  actions  of  the  accused,

namely  that  they  perceived  a  threat  to

their  finances  and  control  over  the

administration of Vadtal Temple. ii) The evidence adduced by the prosecution

with regard to “last seen” theory, is such

that even if  there was a failure to lead

evidence as to the motive of the accused,

the fact that Accused No.3 pointed out

the place where the body of the deceased

was dumped goes to show that the crime

was committed by them. iii) The fact that the deceased was intending

to transfer the Chief Kothari and that the

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issue was discussed between the Board

members, is clearly established. iv) The  evidence  of  PW5  shows  that  the

Chief  Kothari  had  no  fixed  term  and

enjoyed the benefit of his office until and

unless the Board decided otherwise. The

Board  of  Trustees  had  discussed  the

proposal of the deceased with regard to

transfer of the Chief Kothari. This was a

huge concern to Accused Nos. 1 and 2,

especially  since  they  were  dealing  with

the  finances  of  the  Vadtal  Temple  and

their position was put under threat.

t) After analyzing the relevant circumstances and the

evidence  on  record,  the  High  Court  found  that  the

prosecution had proved that the accused were amongst

the inner group which had a direct say in the financial

and administrative matters of the Board. Apprehending

their transfer, a conspiracy was hatched.  Thus, there

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

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particular to commit the crime. In furtherance of that

criminal  conspiracy, the deceased was taken away by

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

was taken to Navli Complex where he was done to death

and his dead body was then disposed of in Rajasthan.

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

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

fire to destroy the evidence. This was obviously done to

mislead  the  investigating  agency.  The  fact  that  large

amounts were seized from the house of Accused Nos. 1

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

abused  their  position  while  dealing  with  financial

matters at Vadtal Temple.   

u) The High Court accordingly recorded a finding of guilt

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

Gadadharanandji.  This conclusion has been recorded

even after noticing certain lacunae in the investigation,

but the High Court found that the same did not impact

the  credibility  of  the  prosecution  case  about  the

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

been  found  guilty  of  the  murder  of  deceased

Gadadharanandji.  

19. These  appeals  were  heard  together.  The  arguments  were

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

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

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

either  meeting  of  minds  by  the  accused  or  intention  to  commit

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

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

because admittedly, the actual decision for transfer could be taken

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

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

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

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

eliminating the deceased would have served no purpose to them.

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

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

consider the possible involvement of one Navatam/Nautam/Nutan

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Swami  and  Premswarup  Swami  who  were  inimical  towards  the

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

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

hostile  attitude  towards  the  deceased  was  even  recorded  in  the

evidence  of  PW3  and  corroborated  by  PW33.  The  impugned

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

lie  detector  test.  The  real  perpetrators  were  removed  from  the

chargesheet  but  the  innocent  accused  was  charged.  The  alleged

motive  attributed  to  the  accused  is  unfounded  and

unsubstantiated.

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

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

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

have  turned  hostile  and  their  evidence  has  to  be  disregarded.

Despite PW15 turning hostile, part of his evidence was considered

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

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

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

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

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

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

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

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

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

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

Thus, the “last seen theory” falls flat.

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

present case has been broken at several places, including:

(a) The circumstances surrounding the actual kidnapping of the

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

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

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

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

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

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

accused kidnapping the deceased on the day of the incident has

been disproved;

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

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

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

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

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

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

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

temple.

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

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

strangulation and further failed to clarify whether the burns on the

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

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

thus completely destroying the prosecution’s case that the deceased

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

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

clotted blood whereas medical jurisprudence dictates that in cases

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

clotted blood and the left chamber should be empty.

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

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

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

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

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

reveal any exclusive information and thus the information in the

panchnama  was  inconsequential.  Further,  the  teeth  and  DNA

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

Tulsi  relies upon the judgment in  State of Karnataka v David

Rozari2 to challenge the admissibility of the evidence on record.

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

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

each  and  every  circumstance  has  to  be  proved  by  independent,

cogent evidence and each circumstance must be connected to each

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

none  of  the  circumstances  in  the  present  matter  have  been

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

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

2

(2002) 7 SCC 728

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to buttress his argument:  Nizam v State of Rajasthan3,  Daulat

Ram  v  State  of  Haryana4,  Dhanraj@  Dhand  v  State  of

Haryana5,  Kirti  Pal  v  State  of  West  Bengal 6,  State  of  UP

through Central Bureau of Investigation v Dr. Sanjay Singh &

Anr.7,  State of Haryana v 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

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

3

 (2016) 1 SCC 550 4

(2015) 11 SCC 378 5

(2014) 6 SCC 745 6

(2015) 11 SCC 178 7

1994 Supp(2) SCC 707 (Paras 15 to 19) 8

(2014) 7 SCC 291 (Paras 25, 29) 9

(1995) 1 SCC 142 (Paras 6, 7, 9) 10

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

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submitted  that  the  complete  chain  of  events  has  not  been

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

proposal  to  transfer  the  Kotharis  was  dropped  by  the  deceased

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

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

the deceased deferred his decision to effectuate the transfers by 6

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

Premswarup Swami held a grudge against the deceased owing to

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

incumbents.  Their  names  were  removed  from  the  chargesheet

without  any  explanation  offered  by  the  investigating  agency.

Additionally,  the  Sessions  Court  in  its  judgment  has  held  that

evidence  of  PW3  could  not  be  considered  for  the  purpose  of

establishing motive as he did not have any personal knowledge of

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

accused to commit the crime was proved.  

24. With  regard  to  the  allegation  that  the  accused  were

misappropriating temple funds, Mr. Ahmadi submits that while the

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

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however, no documentary evidence has been adduced to show that

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

Ahmadi  submits that  the prosecution did not  ask any questions

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

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

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

regarding  Accused  No.2’s  alleged  disproportionate  income  have

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

that Accused No.2 was misappropriating temple funds.

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

the deceased from the Vadtal Temple premises, the two witnesses

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

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

witnesses in connection with the disappearance viz of  PW3, PW8

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

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

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

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

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

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investigating officer reveals that he attempted to falsely implicate

two  persons  at  the  same  time  by  recording  statements  under

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

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

and contended that the record was fabricated.   

26. Mr  Ahmadi  further  submits  that  with  reference  to  the

allegation that the Accused killed the deceased, several factors belie

the  prosecution  case.  The  panchnama drawn at  the  instance  of

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

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

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

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

stick  at  Vadtal  Temple  which  was  regularly  used  by  him  and

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

witness statements regarding the time of  the alleged kidnapping,

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

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

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

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

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

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

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

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

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

the evidence on record.

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

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

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

wherein  he  revealed  about  the  commission  of  crime  and  the

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

cannot  be  used  against  other  accused.  Further,  the  panchnama

suffers from factual and procedural inaccuracies, a fact noticed in

the impugned judgment by the High Court for disregarding part one

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

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

submits  that  the  evidence  on  record  and  the  deposition  by  the

doctor PW1 clearly show that the prosecution has fabricated the

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

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

Court took note thereof in the impugned Judgment, but disregarded

the same as immaterial.

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

with  the  criminal  conspiracy  to  murder  the  deceased.  The

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

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

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

be  disregarded  owing  to  contradictory  statements  therein.  The

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

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

without  there  being  any  sufficient  proof  against  him  and  the

prosecution went to the extent of fabricating documents to implicate

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

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

proved beyond reasonable doubt. He pointed out that material facts

were not put to the accused whilst recording his statement under

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

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

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produced  a  table  in  his  written  submissions,  pointing  out  the

discrepancies in the judgment of the trial court and the impugned

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

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

relied upon the decisions in the cases of  Pulukuri Kottaya and

others  v.  Emperor11,  Mohmed  Inayatullah  v.  The  State  of

Maharashtra12, and State of Himachal Pradesh v. Jeet Singh13.

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

impugned Judgment is perverse as some of the primary findings

recorded therein are diametrically opposite to the case set out by

the prosecution and the findings recorded by the Sessions Court.

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

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

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

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

11

AIR (1934) 1947 Privy Council 67 (Paras 10 & 11) 12

1976 (1) SCC 828 (Paras 12 to 16) 13

1999 (4) SCC 370 (Para 27)

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

deceased.

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

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

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

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

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

prosecution fabricated evidence and planted the sleeping pills. More

importantly,  the  High  Court  has  changed  the  narrative  of  the

prosecution and recorded that the deceased was smothered by a

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

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

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

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

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

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

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

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

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

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

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

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

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

affording the accused an opportunity to counter the same.

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

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

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

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

and  was  a  stranger  to  the  criminal  conspiracy  alleged  by  the

prosecution.

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

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

was contradicted in cross examination. The evidence of PW35 infact

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

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

contradicted itself by first inferring from a panchnama that Accused

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

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

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

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

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

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

perversity.  The contradictory finding recorded by the High Court

has seriously affected the admissibility of the panchnama. At the

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

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

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

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

Investigation and Anr.14, Hodge’s Case15 and Pawan Kumar Vs.

State of Haryana16.

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

the prosecution, first submits that the accused had conspired with

14

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

English Reports 168 Crown Cases, Liverpool Summer Assizes, 1838 16

(2003) 11 SCC 241

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

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

also submits that the chain of circumstances proving the guilt of

the accused has been established and proved through the various

witnesses.

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

submits that there cannot be direct evidence of hatching a criminal

conspiracy and the same has to be reasonably inferred from the

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

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

murder  and  disposal  of  body,  panchnama  at  the  instance  of

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

Accused No.3.

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

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

him.  From  the  circumstantial  evidence  and  considering  the

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

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

irregularities  of  the  temple  funds and that  their  continuation at

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

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

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

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

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

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

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

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

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

PW39.

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

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

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

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

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

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

This has been substantiated by the evidence of PW15 wherein he

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

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

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

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

PW3, PW8, PW14 and PW48 in this regard.

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

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

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

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

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

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

girl summoned by the accused for the deceased, also establishes

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

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

complex when she was summoned there and that she had physical

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

PW49 have  turned  hostile,  their  evidence  clearly  establishes  the

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

murder. Further, panchnama clearly establishes that the deceased

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

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

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

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

prosecution.

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

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

attempt  to  mislead  the  prosecution  from  the  real  events  that

unfolded.  The panchnama sets out the real incident wherein the

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

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

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

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

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

what happened to the car.

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

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

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

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

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

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

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

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

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

submits  that  this  Court  should  be  loath  to  interfere  with  the

concurrent findings of guilt recorded by the two Courts against the

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

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

Maharashtra17, State (NCT of Delhi) v. Navjot Sandhu alias Afsan

Guru18,  Udai Bhan v. State of U.P.19,  State of Maharashtra v.

Damu20,  H.P.  Admn.  v.  Om  Prakash21 and Vasanta  Sampat

Dupare v. State of Maharashtra22.

17

2002 (2) SCC 490 (Paras 14 & 15) 18

2005 (11) SCC 600 (Paras 114, 115 to 118, and 120  to 144) 19

1962 Supp (2) SCR 830 20

2000 (6) SCC 269 (Para 37) 21

1972 (1) SCC 249  22

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

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

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

examined the relevant record, the judgments rendered by the two

Courts and the reported decisions cited by them during arguments.

The  prosecution  case  hinges  on  circumstantial  evidence.   The

following  circumstances  have  been  pressed  into  service  by  the

prosecution:

(i) Motive; (ii) “Last seen” in the company of Accused No. 3; (iii) Murder of deceased at Navli complex  and disposal

of the dead body in Rajasthan; (iv) Panchnama drawn on the basis of disclosure made

by Accused No. 5; (v) The recovery of dead   body and its identification;  (vi) The discovery of location, on the basis of disclosure

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

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

investigation; (viii) Criminal conspiracy to commit the crime.  

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

acquitted by the High Court.  The prosecution has not challenged

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

High  Court  it  is  evident  that  the  prosecution  in  all  fairness

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

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

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

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

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

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

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

present appeals.  

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

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

in  mind  the  settled  legal  position  about  the  quality  of  evidence

required  for  recording  a  finding  of  guilt  against  the  accused  in

respect  of  circumstantial  evidence.  (See  decisions  relied  by  the

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

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

Maharashtra23). At the same time, we must remind ourselves of the

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

23

(1984) 4 SCC 166

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concurrent findings of fact recorded by the two Courts unless the

same are found to be palpably untenable or perverse.  

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

by the two Courts with reference to the relevant circumstances on

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

appellants.  The first  such circumstance is about the presence of

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

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

found that the prosecution has succeeded in establishing the fact

that  Gadadharanandji  returned  to  the  Vadtal  Temple  at  around

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

the  room  of  Gadadharanandji  at  the  relevant  time.  After

Gadadharanandji returned, PW3 pressed his legs for about half an

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

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

walking stick of Gadadharanandji were left behind in the room but

Gadadharanandji  himself  was  not  seen  around.  PW  8  has  also

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

Temple  complex/residence  of  Gadadharanandji  at  around  11:00

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

stated  that  Gadadharanandji  arrived  at  the  Vadtal  Temple  in  a

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

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

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

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

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

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

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

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

along with one Gandalal  and served him for  five  minutes  before

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

presence  of  Gadadharanandji  at  Vadtal  Temple  complex  on

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

argument has been advanced to challenge this factual position.  

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

credible  evidence  regarding  the  manner  of  disappearance  of

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

prosecution  has  not  produced  any  direct  evidence  regarding  the

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manner  of  disappearance  of  Gadadharanandji  from  the  Vadtal

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

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

the prosecution has certainly produced evidence to establish the

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

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

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

having  established  the  aforesaid  fact.  The  prosecution  has  also

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

have personally seen Gadadharanandji leaving the room along with

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

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

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

room.  PW14  was  examined  to  establish  the  fact  under

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

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

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

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

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

from the totality  of  the evidence that Gadadharanandji  was seen

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

initially  deposed  that  he  saw  the  deceased  leaving  the  Vadtal

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

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

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

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

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

Courts  below  have  accepted  the  version  of  PW15 to  the  limited

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

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

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

Mandap at the relevant time has been corroborated by the evidence

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

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

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

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

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

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

Gandalal remained inside the room of Gadadharanandji for some

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

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leaving  the  room.  PW16  thereafter  went  to  the  nearby  machine

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

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

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

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

analyzing  this  evidence,  have  recorded  a  concurrent  finding

including by weighing the admissible part of the evidence of hostile

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

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

named witnesses was reliable atleast with regard to the manner of

disappearance  of  Gadadharanandji  from  Vadtal  Temple.  The

discrepancy in the evidence of these witnesses has been considered

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

under consideration. Even the Appellate Court reached at the same

conclusion  independently.  Both  the  Courts  have  analysed  the

evidence  and  after  sifting  the  irrelevant  or  inadmissible  part

therefrom,  found  that  the  evidence  was  sufficient  to  answer  the

circumstance against the appellants. The two Courts have held that

Gadadharanandji was last seen together with Accused No.3 leaving

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

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thereafter until his dead body was found on 4th May, 1998 (i.e. next

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

Rajasthan.  This  finding  arrived  at  by  the  Courts  below  is

unassailable. It is neither perverse nor warrants interference by this

Court.  

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

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

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

Gadadharanandji  reached  that  spot  was  revealed  by  none  other

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

caused  on  the  dead  body  of  Gadadharanandji,  no  prosecution

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

dead body recovered from Barothi village on 4th 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

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Investigating Officer about the location where the dead body was

dumped by him - which information was personally known to him

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

would  not  have  made  any  headway.  The  disclosure  made  by

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

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

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

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

was recovered on 4th May, 1998 on the information given by PW50

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

already recovered from the same place on 4th May,  1998 and so

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

undermine  the  admissibility  of  the  disclosure  made  by  Accused

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

body of Gadadharanandji was dumped by him, which information

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

The  fact  that  the  dead  body  recovered  on  4th May  1998  was  of

Gadadharanandji,  was  unraveled  and  discovered  only  after  the

results  of  its  medical  examination  became  available  to  the

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

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

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

location where the dead body of Gadadharanandji was dumped by

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

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

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

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

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

arguments advanced by the parties regarding the sweep of Section

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

read thus:

“(i) Whether the discovery of fact referred to in Section 27 should be  confined only  to  the  discovery  of  a  material  object  and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things — concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent  event  of  discovery  by  the  police  with  the  aid  of information  furnished  by  the  accused  —  whether  can  be  put against him under Section 27.”

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

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

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

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

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

“120. The history of  case-law on the subject  of  confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical,  material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement.  In  some  cases  a  view  was  taken  that  any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in  Kottaya case which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council’s decision has not been questioned in any of the decisions of the highest court either  in  the  pre-or  post-independence  era.  Right  from  the 1950s,  till  the  advent  of  the  new century and till  date,  the passages in this famous decision are being approvingly quoted and reiterated by the Judges of  this  Apex Court.  Yet,  there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State. 121.  The  first  requisite  condition  for  utilising  Section  27  in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the

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knowledge of  police  officer  as  a  consequence  of  information received.  Of  course,  it  is  axiomatic  that  the  information  or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved.  It  is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the  section  that  there  is  no  taboo  against  receiving  such information  in  evidence  merely  because  it  amounts  to  a confession. At the same time, the last clause makes it  clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the  fact  discovered  by  means  of  the  information  furnished. Thus, the information conveyed in the statement to the police ought  to  be  dissected if  necessary  so  as  to  admit  only  the information  of  the  nature  mentioned  in  the  section.  The rationale  behind  this  provision  is  that,  if  a  fact  is  actually discovered  in  consequence  of  the  information  supplied,  it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case64: (AIR p. 70, para 10) “clearly the extent of the information admissible must depend on the exact nature of the fact discovered” and the information must distinctly relate to that fact. Elucidating  the  scope  of  this  section,  the  Privy  Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) “Normally the section is brought into operation when a person in  police  custody  produces  from some  place  of  concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.” We  have  emphasised  the  word  “normally”  because  the illustrations  given  by  the  learned Judge are  not  exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the  weapon  produced  is  the  one  used  by  him  in  the commission of  the murder  will  be admissible  in  its  entirety.

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Such  contention  of  the  Crown’s  counsel  was  emphatically rejected with the following words: (AIR p. 70, para 10) “If  this  be  the  effect  of  Section  27,  little  substance  would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That  ban  was  presumably  inspired  by  the  fear  of  the legislature  that  a  person  under  police  influence  might  be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.” Then, Their Lordships proceeded to give a lucid exposition of the  expression  “fact  discovered”  in  the  following  passage, which is quoted time and again by this Court: (AIR p. 70, para 10) “In  Their  Lordships’  view  it  is  fallacious  to  treat  the  ‘fact discovered’  within  the  section  as  equivalent  to  the  object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this,  and the information given must relate distinctly to  this fact.  Information as to past  user,  or  the past history,  of  the object produced is not related to its discovery in the setting in which  it  is  discovered.  Information  supplied  by  a  person  in custody that ‘I will produce a knife concealed in the roof of my house’ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But  if  to  the  statement  the  words  be  added  ‘with  which  I stabbed A’  these  words  are  inadmissible  since  they do  not relate  to  the  discovery  of  the  knife  in  the  house  of  the informant.”  

(emphasis supplied)

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

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

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

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

that the information given by the accused exhibited the knowledge

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

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

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

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

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

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

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

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

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

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

had dealt  with the case where broken glass piece was recovered

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

of that decision, the Court observed thus:

“37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same  canal  was  antecedent  to  the  information  which  PW 44 obtained.  If  nothing  more  was  recovered  pursuant  to  and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when

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the  broken glass  piece  was recovered  from that  spot  and  that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji,  it  can  safely  be  held  that  the  investigating  officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.”   

                                                   (emphasis supplied).

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

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

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

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

object  at  least  in  part.  We  may  usefully  reproduce  paragraph

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

observed thus:

“142. There  is  one  more  point  which  we  would  like  to discuss i.e.  whether pointing out a material  object  by the accused  furnishing  the  information  is  a  necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be  such  pointing  out  in  order  to  make  the  information admissible under Section 27. It could very well be that on the  basis  of  information  furnished  by  the  accused,  the investigating officer may go to the spot in the company of other witnesses and recover the material object.  By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other

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words,  where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so  furnished was the  immediate  and proximate  cause  of discovery. If  the  police  officer  chooses  not  to  take  the informant accused to the spot, it will have no bearing on the point of  admissibility under Section 27, though it  may be one  of  the  aspects  that  goes  into  evaluation  of  that particular piece of evidence.”

“143. How the  clause  “as  relates  distinctly  to  the  fact thereby discovered” has to be understood is the next point that  deserves  consideration.  The  interpretation  of  this clause  is  not  in  doubt.  Apart  from  Kottaya  case various decisions  of  this  Court  have  elucidated  and  clarified  the scope and meaning of the said portion of Section 27. The law  has  been  succinctly  stated  in  Inayatullah  case. Sarkaria,  J.  analysed  the  ingredients  of  the  section  and explained the ambit and nuances of this particular clause in the following words: (SCC p. 832, para 12) “The    last   but the most important condition is that only ‘so much  of  the  information’  as  relates    distinctly   to  the  fact thereby   discovered is admissible. The rest of the information has to be excluded. The word ‘distinctly’ means ‘directly’, ‘indubitably’, ‘strictly’, ‘unmistakably’. The word has been advisedly used to limit and define the scope of the provable information. The phrase ‘distinctly relates to the fact thereby discovered’  is  the  linchpin  of  the  provision. This  phrase refers  to  that  part  of  the  information  supplied  by  the accused  which  is  the    direct   and    immediate   cause  of  the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that  if  a  fact  is  actually  discovered  in  consequence  of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.”

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In  the light  of  the legal  position  thus clarified,  this  Court excluded a  part  of  the disclosure statement  to  which we have already adverted. 144. In Bodhraj v. State of J&K this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18) “The  words  ‘so  much  of  such  information’  as  relates distinctly to the fact thereby discovered, are very important and the whole force  of  the section concentrates on them. Clearly  the  extent  of  the  information  admissible  must depend on the exact nature of the fact discovered to which such information is required to relate.”  

(emphasis supplied)

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

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

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

“23.  While  accepting  or  rejecting  the  factors  of  discovery, certain  principles  are  to  be kept  in  mind.  The Privy Council in Pulukuri Kotayya v. King Emperor has held thus: (IA p.77)

“…  it  is  fallacious  to  treat  the  'fact  discovered' within  the  section  as  equivalent  to  the  object produced; the fact discovered embraces the place from  which  the  object  is  produced  and  the knowledge  of  the  accused  as  to  this,  and  the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the  setting  in  which  it  is  discovered.  Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead  to  the  discovery  of  a  knife;  knives  were discovered  many  years  ago.  It  leads  to  the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife  is  proved  to  have  been  used  in  the

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commission  of  the  offence,  the  fact  discovered  is very relevant. But if to the statement the words be added  'with  which I stabbed A',  these  words  are inadmissible  since  they  do  not  relate  to  the discovery of the knife in the house of the informant.

24. In Mohmed Inayatullah v. The State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that:

“11.  Although  the  interpretation  and  scope  of Section 27 has  been  the  subject  of  several authoritative  pronouncements,  its  application  to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short  and  swift  glance  at  the  section  and  be reminded of its requirements. The section says:

27.  How  much  of  information  received  from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of  such  information,  whether  it  amounts  to  a confession or not,  as relates distinctly to the fact thereby discovered may be proved.

12.  The  expression  "provided  that"  together  with the phrase "whether it amounts to a confession or not"  show that the section is in the nature of  an exception  to  the  preceding  provisions  particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24,  also.  It  will  be  seen  that the first condition  necessary  for  bringing  this section  into  operation  is  the discovery  of  a  fact, albeit  a  relevant  fact,  in  consequence  of  the information received from a person accused of an offence.  The second is  that  the  discovery  of  such fact  must  be  deposed to.  The third is  that  at  the time of the receipt of the information the accused must  be  in  police  custody.  The last but  the  most important  condition  is  that  only  "so  much  of  the information"  as  relates distinctly to  the

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

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

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

PW30  was  relied  upon  for  the  limited  purpose  to  prove  the

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

view taken by the courts below about the admissibility of disclosure

of the spot where the dead body of Gadadharanandji was disposed

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

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

Rajasthan Police on 4th May, 1998 on the information provided by

PW50. That  dead body,  on subsequent medical  examination was

found to be of none other than that of Gadadharanandji.  

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

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

the local police of Barothi on 4th May, 1998 about the dead body of

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

be that of Gadadharanandji due to the disclosure made by Accused

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

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

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

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

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

of the deceased in the Vadtal Temple complex. PW3 corroborated

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

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

body which matched with the blood samples of the biological sister

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

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

That statement was corroborated by the receipts and diary entries

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

said medical  records are fabricated because of  the discrepancies

therein.  However,  the  said  discrepancies  would not  discredit  the

other evidence regarding the identity of the dead body which has

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

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

identity  of  the  dead  body  of  deceased  Gadadharanandji  is

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

who had voluntarily disclosed to the investigating agency about the

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

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

from where the dead body of an unknown person was recovered

earlier by the local police.  

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

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

Gadadharanandji was brought from Vadtal Temple and the crime of

murder was finally executed. The disclosure so made by Accused

No. 5 on 18th April, 1999, after his arrest, has been corroborated by

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

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

Gadadharanandji  had stayed on the day of  incident.  The Courts

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

where Gadadharanandji was brought at Navli Temple complex, as

admissible.  We  affirm  that  view  for  the  reasons  noted  while

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

evidence, it  is obvious that Gadadharanandji  was taken away by

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

Navli Temple complex on 3rd May, 1998 itself. His dead body was

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

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which  was  traced  on  4th May,  1998  as  a  consequence  of  the

information given by PW50.  

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

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

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

the circumstantial evidence as well as the ocular evidence to the

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

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

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

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

has  deposed  that  his  company  had  allocated  cellphone  number

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

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

No.2 concerning the aforesaid number 9825017197 for the months

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

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

aforesaid number 9825017197 on his computer and a print out of

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

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

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

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

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

Accused No.2 was using number 9825017197.

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

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

several calls were made from the number 9825017197 (belonging to

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

1998 to 20th May 1998. The aforesaid exhibits also reveal that on

2nd May 1998, there were calls made between the said numbers on

two occasions. On the day of  the incident i.e. 3rd May 1998, the

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

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

4th May  1998,  the  number  9825017197  used  by  Accused  No.2

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

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

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

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

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

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

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

PW64  investigating  officer  has  deposed  that  PW25  made  a

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

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

He  (PW25)  had  also  stated  to  PW64 that  on  2nd 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. 3rd May, 1998. On that

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

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

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

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

examination, though PW25 turned hostile and denied that Accused

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

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

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

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

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

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

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

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

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

instructions of Accused No.2.

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

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

give  her  statement  on  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

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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. Further, on 3rd

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

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

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

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

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

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

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

the Navli Temple complex on 3rd 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.

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

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

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

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

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

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

Gadadharanandji  and to  hide  his  real  intentions.  PW36 deposed

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

and  two  disciples  had  reached  the  event  at  Nadiad  around

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

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

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

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

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

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

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

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

spotted in the Navli Temple complex on 3rd May, 1998. Additionally,

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

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

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

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

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

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

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

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

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

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

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

Nadiad.

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

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

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

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

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

After that, the Accused No.3 set the car on fire and took it to the

garage of PW13. Thereafter insurance claim was filed on 6th May,

1998  (Ex.129)  in  the  name  of  the  car  owner  (PW11)  under  the

signature  of  Accused  No.3  as  an  accident  case.  However,  the

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insurance  company  rejected  the  claim.  PW6,  surveyor  of  the

insurance company who had examined the said car, deposed that

the  car  did  not  get  burned  due  to  any  accident  or  internal

malfunction.  

57. As noted earlier,  it  was only  on the basis of  the disclosure

made  by  Accused  No.5  as  to  the  place  where  the  murder  was

committed,  that  the  investigating  agency  was  able  to  take  the

investigation forward and then interrogate the aforesaid witnesses

i.e. PW25, PW42, PW43 and PW49. Only a person who was present

at the time of commission of the offence could have known about

the  location  of  the  offence  and  Accused  No.5  undoubtedly  had

exclusive  knowledge  about  the  place  where  the  crime  was

committed, a fact which has been affirmed by both the courts. The

panchnama  drawn  on  the  basis  of  this  disclosure  has  been

corroborated  by  independent  pancha  witness  PW31.The  Courts

below,  on  analyzing  the  relevant  evidence,  have  held  that  the

inescapable conclusion is that the deceased was taken to Navli. We

are  in  agreement  with  this  finding,  as  the  evidence  on  record

supports that conclusion.

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58. On the basis of the aforementioned circumstances, the Courts

below have held that the link connecting the chain of events and

the link between Accused Nos.1, 2,  3 and 5 was complete in all

respects, pointing to the guilt only of the said accused.  

59. The moot question is as to why the appellants should have

thought  of  committing  the  crime.  The  motive  behind  the  crime

according to the prosecution was that Accused Nos.1 and 2 were

irked by the proposal of the deceased Gadadharanandji to transfer

them immediately after taking over as the Chairman of the Board of

Trustees of the Vadtal Temple on 11th April, 1998. The Courts below

have adverted to the evidence of PW3, PW5, PW33, PW37 and PW39

and after analyzing the same, took the view that there was strong

motive for Accused No.1 and 2 to murder Gadadharanandji as they

felt  threatened about their  current position and of  losing control

over  the  affairs  of  the  Vadtal  Temple.  Resultantly,  the  Accused

Nos.1 and 2 hatched a conspiracy to commit the offence in question

and  took  the  assistance  of  Accused  Nos.3  and  5  who  were

co-conspirators along with them. This finding was assailed by the

appellants mainly on the ground that such a case was a figment of

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imagination of the prosecution.  In fact,  there were other persons

who  were  inimical  to  Gadadharanandji  after  he  was  elected  as

Chairman of the Vadtal Temple. The Courts below have analysed

this aspect and have rejected that argument. Both the Courts have

held that mere unhappiness of those persons could not have been a

ground to take such an extreme step. The fact that the names of

other persons were mentioned in the F.I.R. but were dropped in the

eventual  chargesheet  filed  by  the  investigating  agency  does  not

diminish the credibility and the quality of evidence adduced by the

prosecution  about  the  involvement  of  the  appellants  in  the

commission of crime.  As far as Accused Nos.1 and 2 are concerned,

the Courts below have held that they were in complete control of the

affairs of the Vadtal Temple complex. It is these Accused who were

entertaining apprehension that their financial irregularities would

also  be  exposed,  in  the  event  of  their  transfer.  The  fact  that

financial irregularities were committed by Accused Nos.1 and 2 and

that they were getting kickbacks from PW39, has come on record.

The argument of the appellants, however, is that the prosecution

has  neither  produced  any  evidence  about  the  disproportionate

assets of  these appellants nor put any specific  question to them

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during  their  examination  under  Section  313  of  the  Code.  This

argument needs only to be rejected, in that the prosecution case

against  Accused  Nos.1  and  2  was  not  one  of  having  amassed

disproportionate  assets  but  was  only  of  unexplained  high-value

cash amounts and other investments recovered during the search of

their residence.  

60. The Counsel for the Appellant (Accused No. 1) had contended

that there was no evidence against Accused No. 1 and he has been

falsely  implicated.  He  had  placed  reliance  on  Satender’s  Case

(Supra).  In that case, the High Court had acquitted the accused on

recording a finding (see Para 29) – that there was no evidence of any

overt act attributed to the accused.  In the present case, however,

the Courts below have after due analysis of the legal evidence and

the  proved  circumstances  has  unambiguously  found  that  the

Accused No.  1 was the mastermind of  the conspiracy to murder

Gadadharanandji.   We  see  no  reason  to  take  a  different  view.

Similarly, it has been concurrently found that Accused Nos.3 and 5

are the henchmen of Accused Nos.1 and 2, a fact which has not

been challenged by the said appellants. In other words, the future

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prospect  of  Accused  Nos.3  to  5  was  fully  dependent  upon  the

existence and continuation of the Accused Nos.1 and 2 at Vadtal

Temple  complex.  Both  the  Courts  below  have  analysed  these

aspects  and  come  to  the  conclusion  that  there  were  strong

circumstances indicating the involvement of the appellants in the

commission  of  the  crime  and  excluding  any  possibility  of  their

innocence.  

61. Relying upon paragraphs 6, 7 and 9 of the decision in  P K

Narayanan (Supra),  it  was  argued  that  mere  evidence  regarding

motive and preparation for commission of the offence is not enough

to substantiate the charge of conspiracy to commit offence.  In our

view, the conclusion reached in that case was on the facts of that

case.   In  the  present  case,  we  find  that  the  Courts  below have

analysed the evidence on record and correctly answered the issue

under consideration on the basis of circumstances proved before,

during  and  after  the  occurrence  indicating  complicity  of  the

Appellants.   These  circumstances  were  not  compatible  with  the

possibility of innocence of the Appellants; and moreso because of

absence of any explanation from them.  We are in agreement with

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the  view  so  taken  by  the  two  Courts,  about  the  involvement  of

Accused Nos.1,  2,  3  and 5  in  the  commission of  the  offence  in

question.   

62. Relying upon Paragraphs 13 to 15 of the decision in Baliya @

Bal Kishan (supra),  it  was argued that the finding of  conspiracy

recorded by the Courts below is untenable.  We are not impressed

with this  argument.   It  is  well  settled that  such a conspiracy is

rarely hatched in the open.  There need not be any direct evidence

to establish the same.  It can be a matter of inference drawn by the

Court after considering whether the basic facts and circumstances

on the basis of which inference is drawn have been proved beyond

all reasonable doubts and that no other conclusion except that of

the complicity of accused to have agreed to commit an offence is

evident.  That is precisely what has been done by the Courts below

in the present case.  There is no legal evidence to give benefit of any

doubt to the Appellants.   We have no hesitation in affirming the

view taken by the Courts below in this regard.  

63. The Appellants have made fervent effort to persuade the Court

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

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deceased  in  Exhibits  95  and  98  or  that  the  High  Court  having

discarded the circumstance of wrappers of sleeping pills found at

the  Navli  Temple.  That,  however,  does  not  discredit  the  other

clinching  circumstances  established  by  the  prosecution,  which

completes the chain of events indicative of the involvement of the

Appellants in commission of the crime. The circumstances taken

into account by both the Courts and as adverted to herein before,

leave no manner of doubt about the complicity of the appellants in

commission of the crime in question. It is, therefore, not necessary

for us to dilate on those contentions.  

64. We are also not impressed by the argument of Accused No. 5

that he should be given the same benefit as given to Accused No. 4

by  the  High  Court.  In  so  far  as  Accused  No.  5,  there  is  ample

evidence about his  involvement in commission of  the crime.  The

Courts below have rightly noticed that he was involved, right from

the disappearance of Gadadharanandji from Vadtal Temple complex

till  the disposal of his dead body at Barothi. Those aspects have

been considered while discussing the relevant circumstances. We

are,  therefore,  in  agreement  with  the  conclusion reached by  the

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Courts  below  that  there  is  sufficient  evidence  to  indicate  the

complicity of Accused No. 5 in commission of the crime in question.

Suffice it to observe that the circumstances established indicating

the complicity of Accused No. 5 cannot be compared with the role of

Accused No. 4, so as to give the same benefit to him.  

65. On analyzing the evidence and the judgments including the

findings and conclusion recorded by both the Courts, we have no

hesitation  in  upholding  the  order  of  conviction  against  Accused

Nos.1,  2  and  5  (appellants  herein).  For,  the  presence  of

Gadadharanandji at Vadtal Temple complex on the day of incident,

the evidence that he was last seen together with Accused No.3 going

from Vadtal Temple complex in a car, the recovery of a dead body in

village Barothi in the neighboring state of Rajasthan on the next

day of disappearance of Gadadharanandji, the disclosure made by

Accused  No.3  about  the  location  as  to  where  the  dead  body  of

Gadadharanandji was dumped by him in a village at Barothi, the

discovery of the fact after subsequent medical examination that the

dead  body  so  recovered  was  of  none  other  than  that  of

Gadadharanandji,  the  disclosure  made  by  Accused  No.5  of  the

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location  where  Gadadharanandji  was  strangled  at  Navli  Temple

complex,  the  conduct  of  Accused  No.3  in  misleading  the

investigating  agencies,  the  burning  of  the  vehicle  used  in  the

commission of the crime and then filing of a false insurance claim

which was rejected by the insurance company, the strong motive for

committing  the  murder  of  Gadadharanandji  and  the  criminal

conspiracy hatched in that behalf and executed, leave no manner of

doubt about the involvement of the appellants in the commission of

the crime. We fully agree with the opinion recorded by the Courts

below in that regard. It is not a case of finding of guilt recorded in

absence of any legal evidence or contrary to the evidence available

on record. We find that the finding of guilt against the appellants is

inescapable. Hence, we see no tangible reason to interfere with the

final conclusion so reached by both the Courts.  

66. Accordingly,  we  dismiss  all  the  three  appeals  filed  by  the

original Accused Nos.1, 2 and 5 respectively and uphold the order

of  conviction  and  sentence  passed  by  the  High  Court,  which  is

impugned  in  these  three  appeals.  The  Accused  on  bail  shall

surrender forthwith.                

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        ………………………….J.         (Kurian Joseph)

       ………………………….J.         (A.M.Khanwilkar)

New Delhi, Dated: April 10, 2017