# CHARANDAS SWAMI v. STATE OF GUJARAT & ANR

- **Citation:** [2017] 3 S.C.R. 96
- **Court:** Supreme Court of India
- **Decided:** 2017-04-10
- **Case number:** Criminal Appeal No. 1549 of2007
- **Bench:** Kurian Joseph, A.M. Kiianwilkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/charandas-swami-v-state-of-gujarat-anr-31946
- **Pages:** 57

## Headnote

Penal Code, 1860 - s. 302 r!ir ss. 120-B. 364 and 301 -
Murder - Prosecution case that Chairman of Board of Trustee of
the temple proposed to transfer Kotharis fi'om the temple on account
of misappropriation of.funds from the temple by them - Kotharis
and their henchmen-uppellanl nos. 1-5 .. entered into conspiracy,
kidnapped the ,Chairman and killed him - Thereafte1; accused
transferred the body of the deceased lo the neighbouring State where
they burned it to destroy the evidence - Conviction of accused no.
1, 2, 3 and 5 u/s. 302 rlw ss. 120-B, 364 and 301 by courts below -
Howeve1; High Court acquilled accused no. 4 and co111111uted the
death sentence awarded by trial court to life i111priso11111ent - On
appeal held: Courts below rightly proved the guilt of the accused
on the basis of motive. 'last-seen' theory. place o] murder and
disposal of the body, panc/111ama at instance of accused no. 5,
recove1y of the body of the deceased and the conduct of accused
no. 3 - These circumstances complete the chain of events indicative
of involvement of appellants in the commission of the crime and
excluding any possibility of their innocence - It is not a case of
. finding of guilt recorded in absence of any legal evidence or contrmy
to the evidence available - Thus, inlelference with the co11clusio11
reached by the courts below not called for - Evidence.
s. 1208 - Conspiracy - Finding of conspiracy - Tenability of
- Held: Compiracy is rarely hatched in the open - There need not
be any direct evidence to establish the same - It can be a mat/er of
inference drawn by the Court ajier considering whether the basic
facts and circumstances on thi! basis of which il~ference is drawn
have been proved beyond all reasonable doubts and that no other
conclusion except that <if the complicity <if accused to have agreed
to commit an offence is evident.
96
CI-IARAND/\S SWAMI v. STATE OF GUJARAT & ANR.
Evidence Act. 1872 - s. 27 - How much of ii1for111ation received
fi·om accused may be proved - Admissibility of the disclosure made
by accused no. 3 to the investigating officer about the location
1vhere the dead body of deceased was dumped by him - When dead
body was already recovered ji·om the same place and noted in the
public records in the State - Held: Disclosure made by accused no.
3 about the location where the dead body of the deceased was
du111ped by him, was ad111issible u/s. 27 4 the Act.
Dismissing the appeals, the Court
· HELD: 1. On analyzing the evidence and the judgments
including the findings and conclusion recorded by both the Courts,
there is no hesitation in upholding the order of conviction against
accused Nos. 1, 2 and 5 (appellants), by the High Court. }'or, the
presence of 'G' in 'V' Temple complex on the day of incident, the
evidence that he was last seen together with accused nu. 3 going
from the Temple complex in a car, the recovery of a dead body in
village 'B' in the neighboring State on the next day of
disappearance of 'G', the disclosure made by accused no. 3 about
the location as to where the dead body of 'G' was dumped by him
in a village at 'B', discovery of the fact after subsequent medical
examination that the dead body so recovered was of none other
than that of 'G', the disclosure made by accused no. 5 of the
location where 'G' was strangled at 'N' Temple complex, the
conduct of accused no. 3 in misleading the investigating agencies,
the burning of the vehicle used in the commission of the crime
and then filing of a false insurance claim which was rejected by
the insurance company, the strong motive for committing the
murder of 'G' and the criminal conspiracy hatched in that behalf
and executed, leave no manner of doubt about the involvement
of the appellants in the commission of the crime. The opinion
recorded by the courts below is accepted. It is not a case of finding
of guilt recorded in absence of any legal evidence or contrary to
the evidence available. The finding of guilt against the appellants
is inescap

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[2017] 3 S.C.R. 96
CHARANDAS SWAMI
v.
STATE OF GUJARAT & ANR.
(Criminal Appeal No. 1549 of2007)
B
APRIL 10, 2017
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[KURIAN JOSEPH AND.A.M. KIIANWILKAR, JJ.)
Penal Code, 1860 - s. 302 r!ir ss. 120-B. 364 and 301 -
Murder - Prosecution case that Chairman of Board of Trustee of
the temple proposed to transfer Kotharis fi'om the temple on account
of misappropriation of.funds from the temple by them - Kotharis
and their henchmen-uppellanl nos. 1-5 .. entered into conspiracy,
kidnapped the ,Chairman and killed him - Thereafte1; accused
transferred the body of the deceased lo the neighbouring State where
they burned it to destroy the evidence - Conviction of accused no.
1, 2, 3 and 5 u/s. 302 rlw ss. 120-B, 364 and 301 by courts below -
Howeve1; High Court acquilled accused no. 4 and co111111uted the
death sentence awarded by trial court to life i111priso11111ent - On
appeal held: Courts below rightly proved the guilt of the accused
on the basis of motive. 'last-seen' theory. place o] murder and
disposal of the body, panc/111ama at instance of accused no. 5,
recove1y of the body of the deceased and the conduct of accused
no. 3 - These circumstances complete the chain of events indicative
of involvement of appellants in the commission of the crime and
excluding any possibility of their innocence - It is not a case of
. finding of guilt recorded in absence of any legal evidence or contrmy
to the evidence available - Thus, inlelference with the co11clusio11
reached by the courts below not called for - Evidence.
s. 1208 - Conspiracy - Finding of conspiracy - Tenability of
- Held: Compiracy is rarely hatched in the open - There need not
be any direct evidence to establish the same - It can be a mat/er of
inference drawn by the Court ajier considering whether the basic
facts and circumstances on thi! basis of which il~ference is drawn
have been proved beyond all reasonable doubts and that no other
conclusion except that <if the complicity <if accused to have agreed
to commit an offence is evident.
96
CI-IARAND/\S SWAMI v. STATE OF GUJARAT & ANR.
Evidence Act. 1872 - s. 27 - How much of ii1for111ation received
fi·om accused may be proved - Admissibility of the disclosure made
by accused no. 3 to the investigating officer about the location
1vhere the dead body of deceased was dumped by him - When dead
body was already recovered ji·om the same place and noted in the
public records in the State - Held: Disclosure made by accused no.
3 about the location where the dead body of the deceased was
du111ped by him, was ad111issible u/s. 27 4 the Act.
Dismissing the appeals, the Court
· HELD: 1. On analyzing the evidence and the judgments
including the findings and conclusion recorded by both the Courts,
there is no hesitation in upholding the order of conviction against
accused Nos. 1, 2 and 5 (appellants), by the High Court. }'or, the
presence of 'G' in 'V' Temple complex on the day of incident, the
evidence that he was last seen together with accused nu. 3 going
from the Temple complex in a car, the recovery of a dead body in
village 'B' in the neighboring State on the next day of
disappearance of 'G', the disclosure made by accused no. 3 about
the location as to where the dead body of 'G' was dumped by him
in a village at 'B', discovery of the fact after subsequent medical
examination that the dead body so recovered was of none other
than that of 'G', the disclosure made by accused no. 5 of the
location where 'G' was strangled at 'N' Temple complex, the
conduct of accused no. 3 in misleading the investigating agencies,
the burning of the vehicle used in the commission of the crime
and then filing of a false insurance claim which was rejected by
the insurance company, the strong motive for committing the
murder of 'G' and the criminal conspiracy hatched in that behalf
and executed, leave no manner of doubt about the involvement
of the appellants in the commission of the crime. The opinion
recorded by the courts below is accepted. It is not a case of finding
of guilt recorded in absence of any legal evidence or contrary to
the evidence available. The finding of guilt against the appellants
is inescapable. Hence, there is no t:uigiblc reason to interfere
with the final conclusion reached by the courts below. [Para
6511151-1<'-U; 152-A-Cl
2.1 Both the courts have concurrently found that the
prosecution succeeded in establishing the fact that 'G' returned
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to the Temple at around 12:30 - 12:45 P,.M. :From the evidence
of PW3, PW8, PW33, PW16, the presence of 'G' at 'V' Temple
complex on 03.05.1998 between 12:00 - 1:30 P.M. is indisputable.
[Para 43Jll28-G-ll; 129-DJ
2.2 :For, the prosecution has not produced any direct
evidence regarding the manner of disappearance of 'G' from 'V'
Temple, as to whether he was forcibly kidnapped from his room
or coaxed to go to 'N' Tcnl(Jle complex by the accused. However,
the prosecution certainly produced evidence to establish the fact
that 'G' was seen along with accused no.3 in a car, leaving 'V'
T1m1ple. The courts below after analyzing the evidence, recorded
a concurrent finding including by weighing the admissible part of
the evidence of hostile witnesses-PW14 and PW15, and of PW16.
The view so taken cannot be said to be perverse. Both the courts
analysed the evidence and after sifting the irrelevant or
inadmissible part therefrom, found lhat the evidence was sufficient
to answer the circumstance against the appellants. The two courts
held that 'G' was last seen together with accused no.3 leaving
'V' Temple complex in a blue car· and that he was not seen
thereafter, until his dead body was found on 4th May, 1998 (i.e.
next day of disappearance) at 'B' village in the neighbouring state.
This finding arrived at by the courts below is unassailable. H is
neither perverse nor warrants interference by this Court. [Para
4411129-E-G; 130-F-G, II; 131-A-ll]
2.3 The fact that the dead body recovered from B village
on 4th May, 1998 was that of'G' could be known only after accused
no.3, during the course of investigation, made a disclosure about
the location where he had dis1Josed of the dead body of 'G'. The
fact that the dead body recovered on 4th May 1998 was of 'G'
was unraveled and discovered only after the results of its medical
examination became ava_ilable to the investigating agency. Till
the said disclosure was made, in lhe records of the Ra,jasthan
police, the dead body was noted as that of an unknown person.
The fact that the dead body was already recovered from the same
place on 4th May, 1998 and so noted ih the public records in the
Stale of Rajasthan docs nul undermine the admissibility of the
disclosure made by accused no. 3 to the investigating officer about
the location where the dead lJOdy of 'G' was dumped by him, which
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
information was exclusively within the personal knowledge of
accused no. 3. The courts below have accepted the case of the
prosecution that the disclosure made by accused no. 3 about the
-location where the dead body of 'G' was dumped by him, was
admissible u/s. 27 of the Evidence Act. [Para 45](131-B-G; 132A)
2.4 The courts below rightly placed reliance on the fact
discovered by the Investigating Officer (PW64) on the basis of
the disclosure made by the accused no. 3. The panehanama was
proved by pancha witness PW30. The fact that PW30 was not on
good terms with the accused cannot be the basis to discard his
evidence. The High Court rightly considered this aspect. The
view taken by the courts below about the admissibility of
disclosure of the spot where the dead body of 'G' was disposed
of by accused no. 3, is affirmed. The same stood corroborated
from the recovery of a dead body of an unknown person from the
same spot by the Police on the information provided by PW50.
That dead body, on subsequent medical examination was found
to be of none other than that of 'G'. [Para 48][143-D-G]
2.5 As regards the identity of the dead body, the courts
below took note of the evidence of PW57 and PW50. PW50 had
informed the local police of place 'B' on 4th May, 1998 about the
dead body of an unknown person lying at the same spot, later on
discovered to be that of 'G' due to the disclosure made by accused
no. 3. PW57 conducted the post-mortem of the burnt dead body
found at 'B' village. He deposed that the death was homicide. lie
also deposed about the golden teeth and a key found near the
dead body, which were proved to be of the deceased. Appellants
contended that the medical records are fabricated because of the -
discrepancies therein. However, the said discrepancies would
--· "
not discredit the other evidence regarding the identity of the
dead body which has been duly corroborated. This view taken by
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the High Court, is a JIOSsible view. It is certainly not a perverse
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view. As the identity of the dead body of deceased 'G' is
established, it is a strong circumstance to link it to accused No.3
who had voluntarily disclosed to the investigating agency about
the spot/location where the dead body of the deceased was
dumped by him and that being the same place in 'B' village from
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where the dead body of an unknown person was recovered earlier
by the local police. [Para 491[143-G-H; 144-A-E)
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2.6 The courts below held the disclosure by accused no.5
about the place where 'G' was brought at 'N' Temple complex,
as admissible. The view is affirmed for the reasons noted while
considering the_ efficacy of disclosure of accused no.3 .. From this
evidence, it is obvious that 'G' was taken away by accused no.3
in a car from VTemple complex and brought to N Temple complex
on 3rd May, 1998 itself. His dead body was dumped in a ditch in
village (another Stale) which was traced on 4th May, 1998 as a
consequence of the information given by PW50. [Para 501[144J<'-ll; 145-A]
2.7 To show the presence of the accused at 'N' Temple
complex on the day of the incident, the courts below took into
account the circumstantial evidence i1s well as the ocular evidence
to the extent it is admissible. The evidence of PW25 and PW49
at 'N' Temple throws light on the said issue. Acconling to the
prosecution, prior to the incident, accused no. 2 was in touch
with ·PW25 to arrange for a call girl for the pleasure of 'G'. PW 48
has deposed that his company had allocated cell phone number
'9825017197' to accused no.2. It is established that accused no.2
was using the said number. The evidence on record clearly
establishes that accused no. 2 was in constant contact with PW25.
The courts below rightly held that the subsequent stance taken
by PW25 that he did not. know accused no.2, was patently incorrect
and that there was enough evidence on record to show otherwise.
J<'rom the evidence on hand, it is a11parent that PW25 knew
accused no. 2 and there is no other evidence on record to
disprove the theory that l'W25 had gone to place 'N' with PW49
on the instructions of accused no.2. [Para 51, 52][145-A-D, G-11;
146-A]
2.8 The finding given by the courts below that the evidence
given by PW32 and the investigating ofticer-PW64, that PW49,
the call girl was taken to 'N' Te11111le complex by PW25, where
accused no. 2 and 'G' were present and that PW49 identified 'G'
as the man with whom she had physical relations at 'N' Temple
complex cannot be discredited, is accepted. [Para 53)(146-F-G]
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
2.9 The presence or accused no. 2 at 'N' Temple on 3rd
May, 1998 can also be deciphered from the evidence of PW42,
though he turned hostile. The reasoning of the courts below that
even if the denial of PW42 on other facts is accepted, his presence
at 'N' Temple on the day of the incident and at the relevant time
is proved, is accepted. His hostility d(1es not destroy the evidence
led by the prosecution to show that the accused no. 2 had come
to the Temple complex on 3rd May 1998. The presence of PW42
at 'N' Temple complex has been corroborated by the evidence of
PW43, wherein although PW43 turned hostile. Thus, there is
evidence to show that accused no. 2 was spotted in 'N' Temple
complex. Additionally, no evidence has been led to show the
whereabouts of both accused nos. 2 and 4 after leaving from N
place until their arrival at 'V' Temple complex. [Para 54, 55)(14611; 147-A-B, I<']
2.lO As set out by the prosecution, once the murder was
committed, ace-used no.3 along with accused no. 5 carried his
body to' B' village where it was dumped in a ditch and set on fire.
After that, the accused no. 3 set the car on fire and took it to the
garage of PW13. Therearter, insurance claim was filed in the name
of the car owner (PWll) under the signature of accused no. 3 as
an accident case and the same wa.s rejected. PW6, surveyor of
the ins'.irance company who examined the said car, deposed that
the ca.1· did not get burned due to any accident or internal
malfunction. [Para 56Jll48-B-CJ
2.11 It was only on the basis of the disclosure made by
accused no.5' as to the place where the murder was committed,
that the investigating agency was able to take the investigation
forward and then interrogate PW25, PW 42, PW 43 and PW 49. Only
a person who was present at the time of commission of the offence
could have known about the location or the offence and accused
no. 5 undoubtedly had exclusive knowledge about the place where
the crime was commitlcd, a fact which was affirmed by both the
courts. The panchnama drawn on the basis of this disclosure has
been corroborated by independent paucha witness PW31. The
courts below, on analyzing the relevant evidence, held that the
inescapable conclusion is that the deceased was taken to place
'N'. This finding is accepte '. as the evidence on record supports
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that conclusion. On the basis of the mentioned circumstances,
the courts below ~iave held that the link connecting the chain of
·events and the link between accused nos. 1, 2, 3 and 5 was
complete in all respects, pointing to the guilt only of the said
accused. [Para 57, 58]1148-D-l<']
2.12 The courts below adverted to the evidence of PW3,
· PW5, PW33, PW37 and PW39 and after analyzing the same, took
the view that there was strong motive fur accused 110.l and 2 to
murder 'G' as they felt threatened about their current position
and of losing control over the affairs of the Temple, owing to the
financial irregularities committed by them. Resultantly, the
accused nos. 1 and 2 hatched a conspiracy to commit the offence
in question and took the assistance of Accused Nos.3 aud 5 who
were co-conspirators along with them. This finding was assailed
by the appellants mainly on the ground that such a case was a
figment of imagination of the prosecution; and in fact, there were
other persons who were inimical to 'G' after he was elected as
Chairman of the Tem1>le. The courts below rejected that argument,
holding that the mere unhappiness of those persons could not
have been a gro_und to take such an extreme step. The fact that
the names of other persons were mentioned in the ·F.I.R. but
were dropped in the eventual chargesheet filed by the
investigating agency does not diminish the credibility and the
q1rnlity of evidence adduced by the prosecution about the
involvement of the appellants in the commission of crime. As far
as accused nos.I and 2 are concerned, the courts below held that
they were in complete control of the affairs of'V' Temr.le complex •.
It is these accused who were. entertaining apprehension that their
financial irregularities would also be exposed, in. the event of
their transfer. The prosecution case against accused nos. 1 and 2
was not one of having amassed disproportionate assets but was
only of unex1>lained high-value cash amounts and other
investments recovered during the search of their residence. (Para
59]1148-H; 149-A-l<'J
2.13 The courts below after due analysis of the legal
evidence and the proved circumstances 11m1111l>iguously found that
the accused no. 1 was the mastermind of the conspiracy to murder
'G'. There is no reason to take a different view. It has been
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
concurrently found that accused nos. 3 and 5 arc the henchmen
of accused nos. 1 and 2, a fact which .bas· not been challenged by
the ap(JCllants. In other words, the future prospect of accused
Nos. 3 to 5 was fully dependent upon the existence and
continuation of the accused Nos. 1 and 2 in the Temple complex.
Both the courts below analysed 'these aspects and came to the
conclusion that there were strong circumstances indicating the
involvcrnent of the appellants in the commission of the crime
and excluding any possibility of their innocenc&. [Para 601[149ll; 150-A-B)
2.14 It is well settled that such a conspiracy is rarely hatched
in the open. There need not be any direct evidence to establish
the same. It can be a matter of inference drawn by the Court
after considering whether the basic facts and circumstances on
the basis of which inference is drawn have been proved beyond
all reasonable doubts and that no ol.her conclusion except that of
the complicity of accused to have agreed to commit an offence is
evident. That is precisely what has been done by the courts below.
There is no legal evidence to give benefit of any doubt to the
'appellants. There is no hesitation in affirming the view taken by
the courts below in this regard. [Para 62][150-1•'-G)
2.15 The appellants made fervent effort to persuade the
court about the several other discre11ancies, however, does not
discredit the other clinching circumstances established by the
prosecution, which completes the chain of events indicative of
the involvement of the appellants in commission of the crime.
The circumstances taken into account by both the courts and as
adverted to, leave no manner of doubt about the complicity of
the appellants in commission of the crime. [Para 63J1150-ll; 151A-BJ
2.16 In so far as accused no. 5, there is ample evidence
about his involvement in commission of the crime. The courts
below rightly noticed that he was involved, right from the
disap11carance of 'G' from 'V' Temple complex till the disposal of
his dead body. The conclusion reached by the courts below that
there is sufficient evidence to indicate the complicity of accused
No. 5 in commission of the crime in question is accepted. The
circumstances established mdicating the complicity of accused
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no. 5 cannot be compared with the role of accused no. 4, so as to
give the same benefit to him. [Para 64][151-C-E]
Subbaiah Ambalam v State of Tamil Nadu AIR 1977
SC 2046 : ( 1997] 2 SCR 923; Stale of Karnatuka v
David Rozari (2002) 7 SCC 728: (2002] 2 Suppl. SCR
419; Nizam v Slate of Rajas1ha11 (2016) 1 SCC 550 :
(2015] 10 SCR 786; Dau/at Ram v S1a1e of Harya11a
(2015) 11 SCC 378 : [2015] 2 SCR 1001; Dhanraj@
Dhand v State. of Harya11a (2014) 6 SCC 745 : [2014]
7 SCR 476; Kirli Pal v Stale of West Bengal (2015) 11
SCC 178 : [2015] 4 SCR 726; Stale of UP through
Central Bureau of Investigation v DI'. Sanjay Singh &
Anr. 1994 Supp(2) SCC 707; Slate of Haryana v
Sate11der (2014) 7 SCC 291; PK Naraya11w1 v Sw1e of
Kera/a (1995) 1 SCC 142; Baliyu alias Bal Kishan v
Slate of Madhya Pradesh (2012) 9 SCC 696 : [2012] 8
SCR 1154; Pulukuri Ko/faya and a/hers v. Emperor AlR
(1934) 1947 Privy Council 67; Mohmed /11ayalu!lah v.
The State of Maharashlra 1976 (1) SCC 828 : [1976] 1
SCR 715; Stale of Himachal Pradesh v. Jee/ Si11gh 1999
(4) sec 370 : (1999] 1 SCR 1033; H.D. Sika11d {DJ
Through L.R.S. v. Ce11/rul Bureau of /11vestigatio11 and
Anr. 2016 (12) Scale 892; Pmran Kumar v. State of
Haryana (2003) 11 SCC 241 : [2003] 1 Suppl. SCR
710; Pa11dura11g Kah1 Patil and Another v. State of
Maharashtra 2002 (2) SCC 490 : (2002] 1 SCR 338;
State (NCT of Delhi) v. Navjot Sandhu alias Afsm; 'Juru
2005 (11) SCC 600 : (2005] 2 Suppl. SCR 79; Udai
Bhan v. State of U.P. [1962] Supp 2 SCR 830; Stale of
Maharashtra v. Da11iu 2000 (6) SCC 269 : (2000] 3
SCR 880; H.P. Adm11. v. Om Prakash 1972 (1) SCC
249 : (1972] 2 SCR 765; Vasanta Sampat Dupare v.
Slate of Maharashtra (2015) 1 SCC 253; Sharad
Birdhichand Sarda v. Slate of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88 - referred to.
Hodge~· Case English Reports 168 Crown Cases,
Liverpool Summer Assizes, 1838 - referred to.
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
105
Case Law Reference
A
[1997) 2 SCR 923
referred to
Para 18
[2002] 2 Su1>pl. SCR 419
, referred to
Para 21
(2015) 10 SCR 786 ...
referred to
Para 22
(2015] 2 SCR 1001
referred to
Para 22
(2014) 1 SCR 476.
referred to
Para 22
B
(2015) 4 SCR 726
referred to
Para 22
1994 Supp. (2) sec 707
referred to
Para 22
(2014) 1 sec 291
referred to
Para 22
(1995) 1 sec 142
referred to
Para 22
c
(2012] 8 SCR 1154
referred to
Para 22
AIR (1934) 1947 PC 67
referred to
Para 28
[1976] 1 SCR 715
referred to
Para 28
119991 1 SCR 1033
referred to
Para28
2016 (12) Scale 892
referred to
Para 32
D
12003] 1 Suppl. SCR 710
referred to
. Para 32
120021 1 SCR 338
referred to
Pai-a 39
[2005] 2 Suppl. SCR 79
rCferred to
Para 39
[1962] Supp 2 SCR 830
referred to
Para 39
E
12000] 3 SCR 880
referred to
Para 39
11972) 2 SCR 765
referred to
Para39
(2015) 1 sec 253
referred to
Para 39
(1985] 1 SCR 88
referred to
Para 42
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
F
1549 of2007.
From the Judgment and Order dated 01.09.2006 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. I 005 of2004
WITH
Criminal Appeal No. 1550 of2007 and
G
Criminal Appeal No. 1586 of2008.
Huzefa Ahmadi, K. T. S. Tulsi, Sr. Advs., Pradhuman Gohil,
Ms. Taruna Singh Gohil, Ms. Jaikriti S. Jadeja, Rohan Sharma, Raj Kamal,
Ms. Pallavi Malhotra, Ms. Suchi Sharma, D. N. Ray, Vikas Singh,
H
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A
Himanshu Chau bey, Ad vs., for the Appellant.
Ms. Kiran Suri, Sr. Adv., P. K. Dey, Raj iv Nanda, T. A. Khan,
Mukesh Kumar Maroria, Ms. Hemantika Wahi, Ms. Jesal Wahi, Krishna
Kumar, Ms. Puja Singh, Ms. Mamta Singh, P. Parmeswaran, Advs., for
the Resp911dent.
B
The Judgment of the Court was delivered by
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A. M. KIIANWJLKAR, J. l. These appeals have been filed
by the Accused No. l (Criininal Appeal No.1586 of2008), Accused No.
2 (Criminal Appeal No.1549 of2007) and Accused No. 5 (Criminal Appeal
No. I 550 of2007) against the judgme11t and final order of the High Court
of Gujarat dated l" September, 2006. The High Court has upheld the
decision of the Sessions Court, convicting Accused Nos. l, 2, 3 and 5 for
offences under Sections 302 r/v./ 120-B, 364 and 20 l of the Indian Penal
Code, 1860 ('IPC') and for the murder of one Gadadharanandj i. The
High Court, however, has acquitted Accused No.4 of the said offences.
The High Court commuted the death sentence awarded by the Sessions·
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Court to a sentence of life imprisonment for the aforementio11ed four
accused. Accused No.3 has not filed any appeal before this Court against
'the impugned judgment.
2. The factual matrix of the case in hand, as gleaned from the
pleadings and submissions of the parties as also the record, is as under:
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(a) The Board of Trustees of the Swami Narayan sect ofVadtal
Gadi Temple comprises of8 members, including the Chairman
and Chief Kothari, who handle the administration and financial
management of the temples run by the sect.
(b) One Gadadharanandji was elected as the Chairman of the
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Board of Trustees on 11 '"April 1998. At that point in time, one
Bhakti Dasji was the Chief Kothari and Narayan Shastri
(Accused No. I) was the Assistant Kothari. Charandas Swami
(Accused No.2) was informally working as an assistant to
Accused No. l, while Madhav Prasad (Accused No.3),
Ghanshyam (Accused No.4, now acq4itted) and Yijay Bhagat
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(Accused No.5) were henchmen of Accused Nos. I and 2.
(c) On 16'" April, 1998,an agenda was circulated for a meeting of
the Board of Trustees to be held on 22"a April, 1998, wherein
the Chairman, Gadadharanandj i, proposed to transfer the
Kotharis away from the Vadtal Temple. That move was not
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approved by the rival camp. They also feared of being exposed
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
[A. M. KHANWILKAR, J.]
of their misdeeds and maladministration.
(d) On Jrd May, I 998, uadadharanandji went missing from the
tempi~ premises. The next day i.e. 4th May, I 998, a burnt body
was found in a ditch at Barothi Village, in the neighbouring
State of Rajasthan which was subsequently identified as that
ofGadadharanandji. A post mortem of the body revealed that
the cause of death was asphyxia.by strangulation.
(e) Meanwhile, one of the deceased's disciples, Jatin Bhagat(PW3)
filed a missing person complaint about the sudden disappearance
ofGadadharanandji with the local police on 5'
11 May, 1998. This
complaint was transferred to the local crime branch and then
the state crime branch. PW3 subsequently filed a petition before
the High Court of Gujarat, which transferred the investigation
of the case to tlie CBI on 5t1i October I 998.
(f) The CBI eventually on 29th October, I 998 registered a new .
FIR against some persons, including the Appellants, for
kidnapping Gadadharanandji. During the course ofinvestigation,
all the five accused were arrested in connection with the
disappearance ofGadadhara11a11dji ..
(g) The investigation established the chaii1 of events leading to
the disappearance of Gadadharanandji. According to the
prosecution, the accused kidnapped Gadadharanandji from the
Vadtal Temple complex, took him in a blue car/van.to the Navli
Temple complex where they procured a call girl for him, after
which they sedated and then strangled him. However, this chain
of events was at odds with the panchnama drawn at the behest
of Accused No. 3 wherein he is stated to have confessed that
he himself kidnapped Gadadharanandj i from the temple, drove
him to his (Accused No. 3) house in Vadtal and then strangled
him there using the deceased's 'khcsiya' (cloth usually placed
around the neck). Accused No.3 also claimed that he returned
with the deceased's body in Iris car to Vadtal, informed Accused
No. I about the deed and then too~ Accused No:S along witli
him to Rajasthan where they disposed of the dead body of
deceased by throwing it in a ditch and lighting it on tire.
(h) Post-investigation, the Chief Judicial Magistrate vide his order
dated I Ot" August, 1999 remitted the case against all the five
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accused. The trial proceeded before the District and Sessions
Court at Kheda at Hadiat, being Sessions Case No. 369 of
1999. Various charges including those under u/S. 120-B, 364,
302 and 201 of the IPC were framed against the Accused.
(i) On l J 1h June, 2004, the Sessions Court, Nadiad convicted all
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the five accused for offence under Section 302 r/w 120-B of
the IPC and sentenced them to death. The Accused were also
convicted u/S. 364 r/w 120-B of the !PC and sentenced to
rigorous imprisonment for life. Accused Nos. 2 and 5 were
further convicted under S. 20 I r/w S. 120-B and sentenced to
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5 years' imprisonment.
U) The accused preferred an appeal to the High Court of Gujarat
which was heard alongwith the confirmation reference. The
· High Cou11 confirmed the conviction against Accused Nos. I,
2, 3 and 5, but .acquitted Accused No.4. The High Court,
however, commuted the death sentence to a sentence of life
imprisonment.
· 3. The case of the prosecution is that the accused were
misappropriating funds from the temple in which they were functionaries.
Gadadharanandji, being the newly elected Chairman of the Board of
Trustees of the temple, intended to transfer the accused from the Vadtal
Temple. This proposal bewildered and irked the accused. They conspired
to and subsequently murdered Gadadharanandj i to put an end to his plan
to transfer them. After the murder, the accused transpo11ed the body of
the deceased to Rajas than where they burned it to destroy the evidence.
4. We shall briefly advert to the approach of the Sessions Court
and that of the High Court. The trial court proceeded to answer the
charges against the appellants broadly on the following basis. Firstly, it
has dealt with the circumstance of motive to kidnap the deceased with a
common intention to murder. It has noted that in April 1998, the deceased
was elected as the chairman of the Swaminarayan Temple at Vadtal.
The Chief Kothari was in charge of administration of the temple and
Accused No. I was the assistant Kothari, helping him in administering
the temple. Accused No.2, while not holding any official post, also worked
in the temple, as did Accused Nos. 3 to 5. The Chief Kothari was the
cashierofthe temple and Accused No. I, by virtut: of his position, assisted
him as a cashier. Accused No.2 was also assisting Accused No. I. Fu11her,
CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
[A. M. KHANWILKAR, J.]
the income generated by the temple was substantial and Accused Nos.
1 and 2 were involved in financial irregularities. Since the Chief Kothari
was very old, Accused No. I was doing all the financial deals on his
behalf. Evidence of PW39, a grocer who supplied goods to the temple,
reveals that he used to supply goods to the temple. These transactions
would obviously have been possible only with the knowledge and approval
of Accused No. I, who was in control of the administration and financial
transactions of the temple at the relevant time. Further, PW39 gave
huge amounts of c.ash to Accused Nos. 1 and 2, which was corroborated
in the form of bills, and credit memos recovered from the house of
Accused No. I . There was also a large amount of unaccounted cash
· recovered from the house of Accused No.2. Neither of the accused
could explain the source of such cash. The evidence brings to light that
Accused Nos. I and 2 used to get kickbacks from purchase of goods
supplied to the temple.
5. The trial court then found that the deceased, by virtue of being
the Chairman of the Board of Trustees, was in a position to influence the
transler of the Kotharis and had even discussed the same with the Board.
The transferofthe Chief Kothari would obviously have implications for
the assistant Kothari i.e. Accused No. I and by extension, Accused No.2.
Accused Nos. I and 2 were aware of such a proposal to transfer the
Kothari and had interacted with the deceased about the same. Accused
No. I had gone to the extent of telling the deceased that ifhe was
transferred, he would rebel against that move. While the accused
suggested that there were other persons who bore enmity towards the
deceased and wanted him killed, no evidence was brought on record to
substantiate the same by the defence. The prosecution case about motive
of the accused to commit crime was corroborated by the evidence of
PW3, PW4, PW5, PW21, PW22, PW33 and PW35. The motive of the
accused to commit the crime has thus been proved.
6. The trial court then dealt with the factum of disappearance of
deceased and last seen theory. The fact that the deceased disappeared
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on the afternoon of 3•ct May, 1998, is indisputable. This is corroborated
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by the evidence of PW8 and PW3. The evidence of PWl 6 in fact reveals
that he had seen Accused No.3 sitting in a blue car at the steps of the
Vadtal Temple around the time the deceased went missing. PW15 has
also stated that he saw Accused No.3 driving away from the Vadtal
Temple with the. deceased in a blue coloured car. PWl 4 also turned
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hostile. The court noted that even if PW 14 and PW 15 had turned hostile,
the totality of the evidence including of PW64 established the fact that
Accused Nos. 3 and 4 were seen lastly with the deceased on the day of
the disappearance. That was found crucial.
7. With regard to the presence of the accused at Navli, the trial
couit, relying on the evidence of PW! 7, found that Accused No.2 bought
7 cans of cold drinks from a shop outside the Vadtal Temple at around 22:30PM.The evidence of PW25, though he turned hostile, shows that
he brought along a call girl-PW49 to the Navli Temple at around 2:30
PM on 3rd May, 1998; Accused No.2 met him there at around 3 :00 PM.
PW48 has deposed that a call was made by Accused No.2 to PW25 at
around the same time. As the ciistance between the Vadtal and Navli
Temples could be covered within 30-45 minutes, the presence of Accused
No.2 atNavli is likely.
8. The trial court noticed that although PW49 has been declared
hostile, she admitted to have given her statement to the irivestigating
agency. wherein she identified the deceased and of having physical
relations with him on the day of the murder. This has been corroborated
by an independent pancha witness.
9. The trial court has found that PW31 deposed that Accused
No.5 had taken him to Navli and shown him where the alleged murder
was committed. There, PWJ I found tablets which were used to drug
the deceased. PW28, who took videos of the same also deposed to the
correctness of the video. PW20 deposed that he had supplied the said
tablets to. the accused. This evidence has been accepted as reliable.
I 0. The trial court then held thatthe motive behind the murder of
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the deceased was that he was going to transfer Accused No. I away
from the Vadtal Temple and, therefore, Accused No. I feared losing his
control over financial matters of the temple and also of being exposed of
the financial irregularities committed by him in the past in relation to
temple finances. The said accused, therefore, hatched a conspiracy to
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kidnap the deceased with an intention to murder him. The deceased was
last seen in the company of Accused Nos.3 and 4 before he went missing
from Vadtal. Accused No.5 showed the spot where the offence was
committed. The conspiracy to commit the murder, while not proved
through ocular evidence, could be established through circumstantial
evidence. While Accused No. I was not personally in the forefront, he is
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CHARANDAS SWAMI v. STATE OF GUJARAT & ANR.
[A. M. KHANWILKAR, J.]
responsible for criminal conspiracy.
11. The trial court also dealt with the evidence regarding recove1y
of dead body of the deceased. It has noted that PW50 deposed that he
found a burnt body in a ditch behind his house in Barothi village and
informed the police about the same. A video of the body was also taken
by the police. The body was examined by PW57 who inter alia noted
three golden teeth and a key. Blood and skin samples of the body were
taken and subsequently identified as that of the deceased after performing ·
a DNA test with blood samples of his sister. The key found on the body
was similar to the one possessed by PW3. The said key opened the lock
to the room of the deceased. The investigating agency was informed
about the spot of disposal of the dead body by Accused No. 3 and that
was corroborated by independent witnesses. The trial court rejected the
argument that the investigating agency used witnesses who were already
pre-disposed against the accused.
12. The trial court then found that the evidence of PW57 clearly
showed that the death of the deceased was not accidental but homicidal.
The deceased had been strangulated. The argument that since the body
had suffered certain bone fractures, therefore strangulation could not
have been the method of murder, was rejected. The Court found that
any fractures on the body would have probably occurred as a result of it
being burned and also because of the advanced age of the deceased.·
13. The trial court held that the fact that the location of disposal of
the dead body was shown by Accused No.J and that the nature of crime
was such that it involved pre-planning, indicative of conspiracy among
the accus.ed to commit the murder.
14. The trial court then took notice of the evidence regarding
attempted disappearance of the evidence. In that, after the incident, the
accused tried to destroy the evidence by setting the car on fire in which
they had transported the deceased and then claiming insurance for the
same as an accident case. The insurance company rejected the said
claim. The Court found that the evidence of PW6 clearly showed that
the car did not get burned due to any accident or internal malfunction.
15. The trial court adve11ed to the evidence of attempt of the
Accused No.5 to dispose of a chain and pendant worn by the deceased
by approaching a goldsmith, one J ignesh Soni (PW! 9). In his evidence,
PW 19 identified the chain and pendant and stated that hi': exchanged the
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same with gold.
16. The trial couit, on the above analysis, recorded finding of guilt
against all the five accused and was of the opinion that the offence
committed by them was not only heinous but also a rarest of rare case
warranting the death penalty. Accordingly, a death reference was
forwarded by the trial court to the High Court for confirmation.
17. Before the High Couit, besides the confirmation case, appeals
filed by the accused assailing the order of conviction and sentence
proceeded together for hearing. The High Court re-assessed and
appraised the entire evidence afresh and recorded an independent finding
of guilt against Accused Nos. I, 2, 3, and 5. The High Court at the outset
noted that the prosecution was l}Ot supporting the view taken by the trial
court that the case would fall into the category of rarest of rare cases
warranting death penalty. After taking note of that contention, the High
Couit proceeded to examine as to whether the prosecution had proved
the charges against the Appellants beyond any reasonable doubt.
18. The High Cou1t's decision proceeds in the following manner:
a) In light of the judgment in Subbaialr Ambalam v State of Tamil
Nadu 1, the High Comt decided to examine the entire evidence
before it, independent of the findings and conclusions of the
trial Court. It noted that the jurisdiction of the High Court was
co-extensive with that of the trial court in assessing, appraising
and appreciating evidence.
b) Then, adverting to the evidence of PW57 who conducted the
autopsy' of the burnt body found at Barothi, the High Court
opined that the burns were post-mortem and not ante-mortem.
The fracture found on the body was probably caused as the
deceased struggled while being strangulated or due to
mishandling of the dead body. The presence ofa fracture does
not indicate that there was any other cause of deatli. Death
was due to asphyxia by strangulation. The burning of the body
was an attempt to destroy the evidence. The condition of the
heart of the deceased. though disputed by the counsel for the
accused, could not rule out the possibility that death was caused
by strangulation.
1-1
. I AIR 1977 SC 2046
CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR.
113
[A. M. KHANWILKAR, J.]
c) As regards the identity of the dead body, the High Court took
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note of the following: ·
i) PW57, who coi1ducted the autopsy of the dead body found
at Barothi, deposed that a key tied with cotton thread was
recovered from near the dead body. This key opened the
lock to the room of the deceased at the Vadtal Temple.
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ii) Skin samples and teeth extracts of the deceased were
obtained and matched with blood samples of the sister of
the deceased. DNA testing showed a biological relation
between the dead person and his sister.
iii) Three teeth of the dead body had gold caps .. PW I deposed
that 11e had treated the deceased in 1993 and that he had
put the said gold caps onthe teeth of the deceased during·
treatment. This is corroborated by receipts and diary entries
of PW!. Certain documentary evidence produced by the
· prosecution vis-a-vis photocopies of the case papers seemed
to be exaggerated with regard to the number of teeth treated
by PWl.