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.

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

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:

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.

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

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.

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.

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.

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.

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.

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 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.

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  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.

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.

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.

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

funds from the temple in which  they  were  functionaries.  Gadadharanandji,

being the newly elected Chairman of the Board of  Trustees  of  the  temple,

intended to transfer the accused  from  the  Vadtal  Temple.  This  proposal

bewildered and irked  the  accused.   They  conspired  to  and  subsequently

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

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

where they burned it to destroy the evidence.

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

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

against the appellants broadly on the  following  basis.   Firstly,  it  has

dealt with the circumstance of motive to kidnap the deceased with  a  common

intention to murder.   It has noted that in April  1998,  the  deceased  was

elected as the chairman of the Swaminarayan  Temple  at  Vadtal.  The  Chief

Kothari was in charge of administration of the temple and Accused  No.1  was

the assistant Kothari, helping him  in  administering  the  temple.  Accused

No.2, while not holding any official post, also worked  in  the  temple,  as

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

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

Accused No.2 was also assisting Accused No.1. Further, the income  generated

by the temple was substantial and Accused Nos. 1  and  2  were  involved  in

financial irregularities. Since the Chief  Kothari  was  very  old,  Accused

No.1 was doing all the financial deals on his behalf. Evidence  of  PW39,  a

grocer who supplied goods to the temple, reveals  that  he  used  to  supply

goods to the temple. These transactions would obviously have  been  possible

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

the administration and financial transactions of the temple at the  relevant

time. Further, PW39 gave huge amounts of cash  to  Accused  Nos.  1  and  2,

which was corroborated in the form of  bills,  and  credit  memos  recovered

from  the  house  of  Accused  No.1.  There  was  also  a  large  amount  of

unaccounted cash recovered from the house of Accused No.2.  Neither  of  the

accused could explain the source of such cash. The evidence brings to  light

that Accused Nos. 1 and 2 used to  get  kickbacks  from  purchase  of  goods

supplied to the temple.

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  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

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 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 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.

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.

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:

In light of the judgment in Subbaiah Ambalam v State of Tamil  Nadu[1],  the

High Court decided to examine the entire evidence before it, independent  of

the findings  and  conclusions  of  the  trial  Court.  It  noted  that  the

jurisdiction of the High Court was  co-extensive  with  that  of  the  trial

court in assessing, appraising and appreciating evidence.

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.

As regards the identity of the dead body, the High Court took  note  of  the

following:

PW57, who conducted the autopsy of the dead body found at  Barothi,  deposed

that a key tied with cotton thread was recovered from near  the  dead  body.

This key opened the lock to the room of the deceased at the Vadtal Temple.

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.

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 PW1. Still, the deposition  of  PW1

was found to be reliable.

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:

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.

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.

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.

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 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 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.

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 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  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 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:

The seizure of large amounts of unaccounted cash as well as the presence  of

large amounts of investments from Accused Nos.1  and  2  goes  to  show  the

level of financial dealings of the said accused.  No  explanation  has  been

offered by the said accused in that regard. Obviously,  the  said  cash  was

illegally obtained. This goes  to  explain  the  common  motive  behind  the

actions of the accused,  namely  that  they  perceived  a  threat  to  their

finances and control over the administration of Vadtal Temple.

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.

The fact that the deceased was intending to transfer the Chief  Kothari  and

that  the  issue  was  discussed  between  the  Board  members,  is  clearly

established.

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 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 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  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 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;

(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.

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

disclosed the place where the body of the deceased was burnt and dumped,  is

inadmissible under S. 27 of the Indian Evidence Act. The  body  had  already

been discovered at the said  place  and  was  a  matter  of  public  record.

Accused No. 3  did  not  reveal  any  exclusive  information  and  thus  the

information in the panchnama was inconsequential.  Further,  the  teeth  and

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

relies upon the  judgment  in  State  of  Karnataka  v  David  Rozari[2]  to

challenge the admissibility of the evidence on record.

22.   Mr. Tulsi submits that the courts below ignored  the  well-established

principle that  in  a  case  of  circumstantial  evidence,  each  and  every

circumstance has to be proved  by  independent,  cogent  evidence  and  each

circumstance must be connected to each other as to  complete  the  chain  of

circumstances. According to him, none of the circumstances  in  the  present

matter have been independently proved and there is  a  failure  to  complete

the chain of circumstances. Mr. Tulsi  has  also  relied  on  the  following

judgments to buttress his argument: Nizam v State  of  Rajasthan[3],  Daulat

Ram v State of Haryana[4], Dhanraj@ Dhand v State of Haryana[5],  Kirti  Pal

v State  of  West  Bengal  [6],  State  of  UP  through  Central  Bureau  of

Investigation v Dr. Sanjay Singh & Anr.[7], State of Haryana v  Satender[8],

PK Narayanan v State of Kerala[9] and Baliya alias Bal Kishan v/s  State  of

Madhya Pradesh[10].

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

No.2. He had opened the arguments for the appellants and raised points  some

of which have already been noted earlier. He  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, 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  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 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 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  produced  a

table in his written submissions, pointing  out  the  discrepancies  in  the

judgment of the trial court and the impugned judgment  of  the  High  Court.

Mr. Ahmadi has filed elaborate written submissions. We  treat  the  same  as

his argument. Mr. Ahmadi has relied upon  the  decisions  in  the  cases  of

Pulukuri Kottaya and others v. Emperor[11], Mohmed Inayatullah v. The  State

of Maharashtra[12], and State of Himachal Pradesh v. Jeet Singh[13].

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

impugned Judgment is perverse as  some  of  the  primary  findings  recorded

therein are diametrically opposite to the case set out  by  the  prosecution

and the findings recorded by the Sessions Court. Mr. Ray  submits  that  the

time of death of the  deceased,  as  set  out  by  the  prosecution  and  as

accepted by the Sessions Court, was between 3 PM  to  4:30  PM  whereas  the

High Court has assumed the time of death to be between 5 PM to  7  PM.  This

discrepancy arises out of the prosecution’s failure to  establish  the  time

of death of the deceased.

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

trial Court, is that the deceased was administered sleeping pills to  render

him unconscious after which Accused Nos.  3  to  5  strangulated  him  while

Accused No.2 was guarding the room from outside. The  High  Court,  however,

has recorded that  the  prosecution  fabricated  evidence  and  planted  the

sleeping pills. More importantly, the High Court has changed  the  narrative

of the prosecution and  recorded  that  the  deceased  was  smothered  by  a

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

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

different panchnamas drawn by Accused No.3 and Accused No. 5, both of  which

are contradictory to each other. Infact, panchnama drawn at the instance  of

Accused No.3 does not even set out a case  against  Accused  No.5.  Finally,

the entire case against Accused No.3 rests on the  link  that  he  was  seen

along with the deceased while leaving  the  Vadtal  Temple  complex  in  the

car/van. This link is propagated by a sole witness, PW15 who claims to  have

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

examination, he stated that he had only seen a white car and could  not  see

who  was  sitting  therein.  The  above  discrepancies  are  fatal  to   the

prosecution case as it puts forth a new case without affording  the  accused

an opportunity to counter the same.

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 state that  the  panchnama  could  only  be

accepted in part and was only true to the extent that  it  proved  that  the

deceased was taken from Vadtal to Navli. The only way that  the  High  Court

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

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

perversity. The  contradictory  finding  recorded  by  the  High  Court  has

seriously  affected  the  admissibility  of  the  panchnama.  At  the  most,

contends learned counsel, the Accused No.5  can  be  proceeded  against  for

disposing of the deceased’s body and not for  murdering  him.  Mr.  Ray  has

relied on the decisions in the cases of H.D. Sikand (D) Through  L.R.S.  v/s

Central Bureau of Investigation and Anr.[14],  Hodge’s  Case[15]  and  Pawan

Kumar Vs. State of Haryana[16].

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

prosecution, first submits that the accused had conspired  with  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 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

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

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

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

that this Court should be loath to interfere with  the  concurrent  findings

of guilt recorded by the two Courts against the appellants herein. Ms.  Suri

has relied upon the reported decisions in the cases of Pandurang Kalu  Patil

and Another v. State of Maharashtra[17], State  (NCT  of  Delhi)  v.  Navjot

Sandhu alias Afsan Guru[18], Udai  Bhan  v.  State  of  U.P.[19],  State  of

Maharashtra v. Damu[20], H.P. Admn. v. Om  Prakash[21]  and  Vasanta  Sampat

Dupare v. State of Maharashtra[22].

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:

Motive;

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

Murder of deceased at Navli complex   and  disposal  of  the  dead  body  in

Rajasthan;

Panchnama drawn on the basis of disclosure made by Accused No. 5;

The recovery of dead   body and its identification;

The discovery of location, on the basis of disclosure made by Accused  No.3,

where the dead body was dumped;

Conduct of Accused No. 3 to mislead the investigation;

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 conceded that  the  evidence

against Accused No. 4 was insufficient.  As regards Accused No. 3, both  the

courts have found that the prosecution succeeded in establishing  the  guilt

of Accused No. 3. As a result, he has been convicted by the trial court  and

the finding of guilt against him  has  been  affirmed  by  the  High  Court.

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

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

appeals.

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

the respective appellants, it may be apposite to bear in  mind  the  settled

legal position about the  quality  of  evidence  required  for  recording  a

finding of guilt against the accused in respect of circumstantial  evidence.

(See decisions relied by the Appellants, Paras 15 to 19 of Dr. Sanjay  Singh

(supra), Para 18 of H.D. Sikand (supra); and  Sharad  Birdhichand  Sarda  v.

State of Maharashtra[23]). At the same time, we  must  remind  ourselves  of

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

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 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 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 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 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  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

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 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.”

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  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. 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  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  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 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.”

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  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 fact thereby discovered is  admissible.  The  rest

of  the  information  has  to  be  excluded.  The  word  “distinctly”  means

“directly”, “indubitably”, “strictly”, “unmistakably”.  The  word  has  been

advisedly used to limit and define the scope of  the  provable  information.

The phrase “distinctly relates  to  the  fact  thereby  discovered”  is  the

linchpin  of  the  provision.  This  phrase  refers  to  that  part  of  the

information supplied by the accused which is  the direct and immediate cause

of the discovery. The reason behind this partial lifting of the ban  against

confessions and statements made  to  the  police,  is  that  if  a  fact  is

actually discovered in consequence of information given by the  accused,  it

affords some guarantee of truth of that part, and that  part  only,  of  the

information which was the  clear,  immediate  and  proximate  cause  of  the

discovery. No such guarantee or  assurance  attaches  to  the  rest  of  the

statement  which’  may  be  indirectly  or  remotely  related  to  the  fact

discovered.

13. At one time it was held that the expression  “fact  discovered”  in  the

section is restricted to a physical or material fact which can be  perceived

by  the  senses,  and   that   it   does   not   include   a   mental   fact

(see Sukhan v. Emperor, Ganu Chandra Kashid v. Empror).  Now  it  is  fairly

settled  that  the  expression  “fact  discovered”  includes  not  only  the

physical object produced, but also the place from which it is  produced  and

the   knowledge    of    the    accused    as    to    this    (see Palukuri

Kotayya v. Emperor, Udai Bhan v. State of U P).    (emphasis in original)

25. In Aftab Ahmad Anasari v. State of Uttaranchal after referring  to  the

decision in Palukuri Kotayya, the Court adverted to seizure  of  clothes  of

the deceased which were concealed by  the  accused.  In  that  context,  the

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

“40. …the part of the disclosure statement, namely, that the  Appellant  was

ready to show the place where he had concealed the clothes of  the  deceased

is clearly admissible Under Section 27 of the Evidence Act because the  same

relates distinctly to the discovery of the  clothes  of  the  deceased  from

that very place. The contention that even if it is assumed for the  sake  of

argument that the clothes of the deceased were recovered from the  house  of

the sister of the Appellant pursuant to the voluntary  disclosure  statement

made by the Appellant, the prosecution has failed to prove that the  clothes

so recovered belonged to the deceased and therefore,  the  recovery  of  the

clothes should not be treated as an incriminating  circumstance,  is  devoid

of merits.”

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

“35. …It is now well settled that recovery of an object is not discovery  of

a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The  decision

of the Privy Council in Pulukuri Kotayya v. King Emperor is the most  quoted

authority for supporting  the  interpretation  that  the  ‘fact  discovered’

envisaged in the section embraces  the  place  from  which  the  object  was

produced, the knowledge of the accused as to it, but the  information  given

must relate distinctly to that effect.”

The    similar    principle    has    been    laid    down    in State    of

Maharashtra v. Suresh , State   of   Punjab v. Gurnam   Kaur, Aftab    Ahmad

Anasari v. State   of    Uttaranchal, Bhagwan    Dass v. State    (NCT    of

Delhi) , Manu Sharma v. State (NCT of Delhi)  and Rumi  Bora  Dutta v. State

of Assam.

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

when the Appellant was accused of an offence, he was in custody of a  police

officer,  the  recovery  had  taken  place  in  consequence  of  information

furnished by him and the panch witnesses  have  supported  the  seizure  and

nothing has been brought on record to discredit their testimony.

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

the Appellant had led the police officer to find  out  the  spot  where  the

crime was committed, and the tap where  he  washed  the  clothes  eloquently

speak of his conduct as the same is admissible in evidence to establish  his

conduct. In  this  context  we  may  refer  with  profit  to  the  authority

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

to the decision in H.P. Admn. v. Om Prakash held thus: (Prakash Chand  Case,

SCC p.95, para 8)

“8. …There is a clear distinction between the conduct of a person  against

whom an offence is alleged,  which  is  admissible  Under  Section 8 of  the

Evidence Act, if such  conduct  is  influenced  by  any  fact  in  issue  or

relevant fact and the statement made to a Police Officer in  the  course  of

an investigation which  is  hit  by  Section 162 of  the  Code  of  Criminal

Procedure. What is excluded by Section 162, Code of  Criminal  Procedure  is

the statement made to a Police Officer in the course  of  investigation  and

not the  evidence  relating  to  the  conduct  of  an  accused  person  (not

amounting to a statement) when confronted or questioned by a Police  Officer

during the course of an investigation. For  example,  the  evidence  of  the

circumstance, simpliciter, that an accused person led a Police  Officer  and

pointed out the place where stolen articles  or  weapons  which  might  have

been used in the commission of the  offence  were  found  hidden,  would  be

admissible as conduct, Under Section 8 of the Evidence Act, irrespective  of

whether any statement by the accused contemporaneously  with  or  antecedent

to such conduct falls within  the  purview  of  Section 27 of  the  Evidence

Act.”

29. In A.N. Vekatesh and Anr. v. State of Karnataka it has been ruled  that:

(SCC p. 721, para 9)

“9. By virtue of Section 8 of the Evidence Act, the conduct of  the  accused

person is relevant, if such conduct influences or is influenced by any  fact

in issue or relevant fact. The evidence of  the  circumstance,  simpliciter,

that the accused pointed out to the police  officer,  the  place  where  the

dead body of the kidnapped boy was found and on their pointing out the  body

was exhumed, would be admissible as conduct Under Section 8 irrespective  of

the fact whether the statement made by the  accused  contemporaneously  with

or antecedent to such conduct falls within the purview of Section 27 or  not

as held by this Court in Prakash Chand v. State (Delhi Admn.).  Even  if  we

hold that the disclosure statement made by the accused-Appellants (Exts.  P-

15 and P-16) is not admissible Under Section 27 of the Evidence  Act,  still

it is relevant Under Section 8. The evidence of  the  investigating  officer

and PWs 1, 2, 7 and PW 4 the spot  mahazar  witness  that  the  accused  had

taken them to the spot and pointed out the place where  the  dead  body  was

buried, is an admissible piece of evidence Under  Section 8 as  the  conduct

of the accused. Presence of A-1 and A-2 at a place where ransom  demand  was

to be fulfilled and their action of fleeing on spotting the police party  is

a relevant circumstance and are admissible Under Section 8 of  the  Evidence

Act.”

(emphasis supplied)

The other decision relied upon is the case of Pandurang Kalu Patil (supra).

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

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

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

disclosure made by the Accused No.3 on 2nd April 1999, after his  arrest  on

29th March, 1999, as recorded  in  Exh.  188.  The  panchanama  Exh.188  was

proved by pancha witness PW30. The fact that PW30  was  not  on  good  terms

with the accused cannot be the basis to discard his  evidence.  This  aspect

has been 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 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

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)  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 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

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 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 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.

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

of the evidence which we have analysed above. On the day  of  the  incident,

Accused Nos.2 and 4 took PW3 and PW33 along  with  them  to  Nadiad  for  an

event at around 4-4:15PM. The  prosecution  has  argued  that  Accused  No.2

purposely did this so as to not arouse any suspicion of PW3 and PW33  as  to

the whereabouts of Gadadharanandji and to hide  his  real  intentions.  PW36

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

and two disciples had reached  the  event  at  Nadiad  around  5-5:30PM  and

stayed for around 10-15 minutes.  PW3  has  deposed  that  at  the  time  of

leaving from Nadiad, the accused received a call  from  Accused  No.1  after

which Accused No. 2 told PW3 and PW33 to go to Vadtal by  themselves  in  an

auto as they (Accused Nos.  2  and  4)  were  going  to  Ahmedabad,  whereas

Accused No.4 told them that they were going  to  Zundal  village.  This  was

presumably an attempt by the said accused to create confusion in  the  minds

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

the Navli Temple complex on 3rd May, 1998.  Additionally,  no  evidence  has

been led to show the whereabouts of both Accused Nos. 2 and 4 after  leaving

from Nadiad until their arrival at Vadtal Temple complex. PW3  deposed  that

Accused Nos.2 and 4 were with him from afternoon till around 6PM on the  day

of the incident. The period from 2:30 PM till the Accused  No.  2  left  for

Nadiad with PW3 at around 4-4:15PM, has  not  been  explained  by  the  said

accused. The Courts  below  have  rightly  inferred  on  the  basis  of  the

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

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

around 3:00PM and remained there until he  returned  to  the  Vadtal  Temple

complex, after which he left with PW3 and PW33 for Nadiad.

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  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.

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 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 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  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 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  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 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 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.

………………………….J.

(Kurian Joseph)

………………………….J.

(A.M.Khanwilkar)

New Delhi,

Dated: April 10, 2017

———————–

[1]

[2] AIR 1977 SC 2046

[3]

[4] (2002) 7 SCC 728

[5]

[6]  (2016) 1 SCC 550

[7]

[8] (2015) 11 SCC 378

[9]

[10] (2014) 6 SCC 745

[11]

[12] (2015) 11 SCC 178

[13]

[14] 1994 Supp(2) SCC 707 (Paras 15 to 19)

[15]

[16] (2014) 7 SCC 291 (Paras 25, 29)

[17]

[18] (1995) 1 SCC 142 (Paras 6, 7, 9)

[19]

[20] (2012) 9 SCC 696 (Paras 15 to 17)

[21]

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

[23]

[24] 1976 (1) SCC 828 (Paras 12 to 16)

[25]

[26] 1999 (4) SCC 370 (Para 27)

[27]

[28] 2016 (12) Scale 892 (Paras 15, 18)

[29]

[30] English Reports 168 Crown Cases, Liverpool Summer Assizes, 1838

[31]

[32] (2003) 11 SCC 241

[33]

[34] 2002 (2) SCC 490 (Paras 14 & 15)

[35]

[36] 2005 (11) SCC 600 (Paras 114, 115 to 118, and 120  to 144)

[37]

[38] 1962 Supp (2) SCR 830

[39]

[40] 2000 (6) SCC 269 (Para 37)

[41]

[42] 1972 (1) SCC 249

[43]

[44] (2015) 1 SCC 253 (Paras 23 to 29)

[45]

[46] (1984) 4 SCC 166