CHARANDAS SWAMI v. STATE OF GUJARAT & Anr.

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 A B c 0 E F G H SUPREME COURT REPORTS [2017] 3 S.C.R. 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 102 A B c D E F G H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 103 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[149- ll; 150-A-B)

2.14 It is well settled that such a conspiracy is rarely hatched in the open. There need not be any direct evidence to establish the same. It can be a matter of inference drawn by the Court after considering whether the basic facts and circumstances on the basis of which inference is drawn have been proved beyond all reasonable doubts and that no ol.her conclusion except that of the complicity of accused to have agreed to commit an offence is evident. That is precisely what has been done by the courts below. There is no legal evidence to give benefit of any doubt to the 'appellants. There is no hesitation in affirming the view taken by the courts below in this regard. [Para 62][150-1•'-G)

2.15 The appellants made fervent effort to persuade the court about the several other discre11ancies, however, does not discredit the other clinching circumstances established by the prosecution, which completes the chain of events indicative of the involvement of the appellants in commission of the crime. The circumstances taken into account by both the courts and as adverted to, leave no manner of doubt about the complicity of the appellants in commission of the crime. [Para 63J1150-ll; 151- A-BJ

2.16 In so far as accused no. 5, there is ample evidence about his involvement in commission of the crime. The courts below rightly noticed that he was involved, right from the disap11carance of 'G' from 'V' Temple complex till the disposal of his dead body. The conclusion reached by the courts below that there is sufficient evidence to indicate the complicity of accused No. 5 in commission of the crime in question is accepted. The circumstances established mdicating the complicity of accused A B c D E F G H 104 SUPREME COURT REPORTS [2017] 3 S.C.R. A 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. 8 c D E F G H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. 105 Case Law Reference [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 (2014) 1 SCR 476. (2015) 4 SCR 726 1994 Supp. (2) sec 707 (2014) 1 sec 291 (1995) 1 sec 142 (2012] 8 SCR 1154 referred to Para 22 referred to Para 22 referred to Para 22 referred to Para 22 referred to Para 22 referred to Para 22 referred to Para 22 AIR (1934) 1947 PC 67 referred to Para 28 [1976] 1 SCR 715 119991 1 SCR 1033 2016 (12) Scale 892 referred to Para 28 referred to Para28 referred to Para 32 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 12000] 3 SCR 880 11972) 2 SCR 765 (2015) 1 sec 253 (1985] 1 SCR 88 referred to Para 39 referred to Para39 referred to Para 39 referred to Para 42 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1549 of2007. From the Judgment and Order dated 01.09.2006 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. I 005 of2004 Criminal Appeal No. 1550 of2007 and WITH 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, A B c D E F G H 106 SUPREME COURT REPORTS [2017] 3 S.C.R. 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 c The Judgment of the Court was delivered by A. M. KIIANWJLKAR, J. l. These appeals have been filed by the Accused No. l (Criininal Appeal No.1586 of2008), Accused No. 2 (Criminal Appeal No.1549 of2007) and Accused No. 5 (Criminal Appeal No. I 550 of2007) against the judgme11t and final order of the High Court of Gujarat dated l" September, 2006. The High Court has upheld the decision of the Sessions Court, convicting Accused Nos. l, 2, 3 and 5 for offences under Sections 302 r/v./ 120-B, 364 and 20 l of the Indian Penal Code, 1860 ('IPC') and for the murder of one Gadadharanandj i. The High Court, however, has acquitted Accused No.4 of the said offences. The High Court commuted the death sentence awarded by the Sessions· D Court to a sentence of life imprisonment for the aforementio11ed four accused. Accused No.3 has not filed any appeal before this Court against 'the impugned judgment.

#2. The factual matrix of the case in hand, as gleaned from the pleadings and submissions of the parties as also the record, is as under: (a) The Board of Trustees of the Swami Narayan sect ofVadtal Gadi Temple comprises of8 members, including the Chairman and Chief Kothari, who handle the administration and financial management of the temples run by the sect. (b) One Gadadharanandji was elected as the Chairman of the 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 (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 approved by the rival camp. They also feared of being exposed E. F G H 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 107 A B c D E F G H SUPREME COURT REPORTS [2017] 3 S.C.R. 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 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 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, 108 A B c D E F ·G H 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. 109 A B c D E F

#6. The trial court then dealt with the factum of disappearance of deceased and last seen theory. The fact that the deceased disappeared on the afternoon of 3•ct May, 1998, is indisputable. This is corroborated G by the evidence of PW8 and PW3. The evidence of PWl 6 in fact reveals that he had seen Accused No.3 sitting in a blue car at the steps of the Vadtal Temple around the time the deceased went missing. PW15 has also stated that he saw Accused No.3 driving away from the Vadtal Temple with the. deceased in a blue coloured car. PWl 4 also turned H 110 SUPREME COURT REPORTS [2017) 3 S.C.R. A B c D E hostile. The court noted that even if PW 14 and PW 15 had turned hostile, the totality of the evidence including of PW64 established the fact that Accused Nos. 3 and 4 were seen lastly with the deceased on the day of the disappearance. That was found crucial.

#7. With regard to the presence of the accused at Navli, the trial couit, relying on the evidence of PW! 7, found that Accused No.2 bought 7 cans of cold drinks from a shop outside the Vadtal Temple at around 2- 2:30PM.The evidence of PW25, though he turned hostile, shows that he brought along a call girl-PW49 to the Navli Temple at around 2:30 PM on 3rd May, 1998; Accused No.2 met him there at around 3 :00 PM. PW48 has deposed that a call was made by Accused No.2 to PW25 at around the same time. As the ciistance between the Vadtal and Navli Temples could be covered within 30-45 minutes, the presence of Accused No.2 atNavli is likely.

#8. The trial court noticed that although PW49 has been declared hostile, she admitted to have given her statement to the irivestigating agency. wherein she identified the deceased and of having physical relations with him on the day of the murder. This has been corroborated by an independent pancha witness.

#9. The trial court has found that PW31 deposed that Accused No.5 had taken him to Navli and shown him where the alleged murder was committed. There, PWJ I found tablets which were used to drug the deceased. PW28, who took videos of the same also deposed to the correctness of the video. PW20 deposed that he had supplied the said tablets to. the accused. This evidence has been accepted as reliable. F I 0. The trial court then held thatthe motive behind the murder of the deceased was that he was going to transfer Accused No. I away from the Vadtal Temple and, therefore, Accused No. I feared losing his control over financial matters of the temple and also of being exposed of the financial irregularities committed by him in the past in relation to temple finances. The said accused, therefore, hatched a conspiracy to G kidnap the deceased with an intention to murder him. The deceased was last seen in the company of Accused Nos.3 and 4 before he went missing from Vadtal. Accused No.5 showed the spot where the offence was committed. The conspiracy to commit the murder, while not proved through ocular evidence, could be established through circumstantial evidence. While Accused No. I was not personally in the forefront, he is H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] 11 l 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 A 8 c D E F G H 112 SUPREME COURT REPORTS . [2017] 3 S.C.R. A 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. B c D E F G 1-1 . I AIR 1977 SC 2046 CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] 113 c) As regards the identity of the dead body, the High Court took A note of the following: · i) PW57, who coi1ducted the autopsy of the dead body found at Barothi, deposed that a key tied with cotton thread was recovered from near the dead body. This key opened the lock to the room of the deceased at the Vadtal Temple. ii) Skin samples and teeth extracts of the deceased were obtained and matched with blood samples of the sister of the deceased. DNA testing showed a biological relation between the dead person and his sister. iii) Three teeth of the dead body had gold caps .. PW I deposed that 11e had treated the deceased in 1993 and that he had put the said gold caps onthe teeth of the deceased during· treatment. This is corroborated by receipts and diary entries of PW!. Certain documentary evidence produced by the · prosecution vis-a-vis photocopies of the case papers seemed to be exaggerated with regard to the number of teeth treated by PWl. Still, the deposition of .PW! was found to be reliable. iv) PW20 had taken a video of the post mortem carried out at .the spot which corroborated the items found on the body/ samples taken from the body. d) While considering the evidence regarding the circumstance of last seen together, the High Court broadly noted thus: i) The evidence of PW3 and PW8 corroborates the fact that the deceased was present in the Vadtal Temple on the day of his disappearance i.e. on )'d May, 1998, at around 12:30PM. The witnesses further stated that they had left the deceased in his room while they went to get chappals but by the time they returned at around 2:30PM, he had gone from the room,. · ii) PW15 deposed that around the same time, he saw the deceased sitting with Accused No.3 in a blue car and also that he saw the deceased leaving with Accused No.3 in the said blue car between 1 :SOPM to 2:05PM. Even though PW! 5 had turned hostile, his evidence could not be wholly B c D E F G H 114 A B c D E F G H . SUPREME COURT REPORTS (2017] 3 S.C.R . disregarded. . iii) PW16 also deposed that he saw a blue car at the steps of the Vadtal Temple around the same time. Thus, an inference could be drawn against the accused in whose company the deceased was last seen and Accused No.3 failed to rebut the same. e) The High Court then considered the evidence regarding the disclosure made by Accused No.3 during interrogation. That revealed to the pol ice that rhe 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 rea'ched that place. The High Court noted that there was no evidence on record to prove how such lapse of time and weather conditions would not lead to contamination of such articles alleged to have been found. h) The High Court then dealt with the evidence.regarding the blue car in which the deceased was allegedly transported to Navli !!nd then subsequently fo Barothivillage, where his dead body was found burned. The High Court held that the prosecution has proved that the car did not catch tire by accident but rather was intentionally burned by the accused to destroy traces of evidence. This has been corroborated by the evidence of the CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] 115 official of the insurance company which insured the said vehicle. · A i) With reference to the evidence of procuring a cal I girl for the deceased, the High Court held that the evidence of the cellphone records clearly shows that Accused No.2 was in contact with PW25, who allegedly procured the call girl for the deceased. A telephone call was made around the time of the incident, . B most presumably summoning PW25 and the call girl to the Navli Temple. Additionally, the call girl herself PW49, identified the picture of the deceased as the man she had been with at the time of the incident. This fact is corroborated by PW32. Although both PW25 and PW49 have turned hostile, the totality of prosecution evidence corroborates the fact that PW 49 was taken to Navli by PW25. c j) The High Court also considered the argument of the defence about the possibility of involvement of other persons who were inimical towards the deceased and were also named as suspects in the FIR. This argu1nent has been rejected owing to lack of any evide1we in support of the same. The High Court held that mere ill-will of the persons towards the deceased cannot be~ reason to commit murder. k) The High Court, however, held that the prosecution failed to conclusively prove that the accused procured specific kind of tablets for drugging the deceased. I) The High Court also did not accept the prosecution evidence of · Accused No.5 having approached PW 19 to exchange the gold chain and amulet of the deceased, as conclusively proved. m) The High Court held that the documents/receipts found in the house of Accused No. I proving large aniounts of financial transactions conducted on behalf of the Vadtal Temple and purportedly bearing his signature, have been proved. The handwriting on the documents seemed to tally with the handwriting of Accused No. I. n) The High Cou11 then examined the circumstance of criminal conspiracy hatched by the accused. It held that Accused No. I was a managing trustee of the Navli Temple Gurukul, while Accused No.2 was a trustee. Accused No.5 was a disciple of D E F G H 116 A B c D E F G H SUPREME COURT REPORTS [2017] 3 S.C.R. Accused No.2, while Accused Nos. I and 3 were related by virtue of being disciples of one guru. It held that while the level of intiinacy between the accused by itself cannot prove much, it must be seen in the context of the fact that the accused have been charged with conspiracy to commit murder.· o) The High Court then found that atter the deceased proposed the transfer of the Chief Kothari, it is Accused No.2 who conveyed the message of the head of the temple, one Acharya Maharaj, to the deceased. Further, on the day of the alleged incident, Accused No. 2 purµosely took PW3 and PW33 out from the Vadtal Temple to an event. after the crime had been committed, to allay their suspicion as to the whereabouts of the deceased. Additionally, Accused Nos. 2 and 4 Jett ·after attending an event at Nadiad in the evening while telling PW3 and PW33 that they would be going to Ahmedabad/Zui1dal. This was presumably to mislead them. Later, both the accused surfaced at the Vadtal Temple. p) The High Court found that there was clear evidence warranting inference of conspiracy hatched among the accused to commit the murder of the dec~ased. Further, considering the circumstances surrounding the incident, it is clear that more than two persons were required to carry out the crime. Th~ fact that the Accused No.3 led the µolice to the place wher~" the body was disposed of, links him to Accused Nos. I and 2. PW 15 had also seen the deceased leaving from Vadtal with Accused No.3. ' q) Tb.e High Cou11 then noticed that the prosecution conceded that the evidence to link Accused No.4 to the incident was · inadequate, as the material witnesses had turned hostile. At the most, the court could infer that Accused No.4 may have been present at Navli when the incident occurred but this would not be sufficient to convict him. However, while dealing with the presence of Accused No.5 at Navli, the High Court noted that he was present from the very beginning of the incident. Moreover, Accused No. 5 is the disciple of Accused No.2 and· was even present with him on the day of the incident. Accused No.5 even led the investigating officials to the alleged room where the crime was executed in Navli. There is no reason to CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] 117 disbelieve that evidence. The High Court held that the disclosure A made by Accused No.5 was crucial in discovering the place of · murder. r) The High Cou1t noted that Accused No.5 was not present at Vadtal on the i1ight of the incident, indicating that he was involved in disposing of the body of the deceased. His presence B with Accused No.2, his knowledge of the murder and his conduct clearly marked him out as a co-conspirator. s) The High Comt while considering the evidence regarding the circumstance of motive, noted the following aspects: O The seizure of large amounts of unaccounted cash as well as the presence of large amounts of investments f~om Accused Nos. I and 2 goes to show the level of financial dealings of the said accused. No explanation has been offered by the said accused in that regard. Obviously, the said cash was illegally obtained. This goes to explain the common motive behind the actions of the accused, namely that they perceived a threat to their finances and control over the administration ofVadtal Temple. ii) The evidence adduced by the prosecution with regard to "last seen" theory, is such that even if there was a failure to lead evidence as to· the motive of the accused, the fact that Accused Nci.3 pointed out the place where the body of the deceased was dumped goes to show that the crime was committed by them. iii) The fact that the deceased was intending to transfer the Chief Kothari and that the issue was discussed between the Board members, is clearly established. iv) The evidence of PWS shows that the Chief Kothari had no fixed term and enjoyed the benefit of his office until and unless the Board decided otherwise. The Board ofTrustees had discussed the proposal of the deceased with regard to transfer of the Chief Kothari. This was a huge concern to Accused Nos. I and 2, especially since they were dealing with the finances of the Va<ltal Temple and their position was put under threat. c D E F G H 118 SUPREME COURT REPORTS [2017] 3 S.C.R. 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 w·as· strong motive for the Accused No. I and 2 in particular to commit the crime. Jn furtherance of that criminal conspiracy, the deceased was taken away by Accused No. 3 in his Maruti van from Vadtal Temple. He was taken to Navli Complex where he was done to death and his dead body was then disposed of in Rajasthan. After disposing of the .dead body, the car used in the commission of offence by the Accused No. 3 was set on fire to destroy the evidence. This was obviously done to mislead the investigating agency. The fact that large amounts were seized from the house of Accused Nos. I and 2, was sufficient to draw an inference that they had abused their position while dealing with financial matters at Vadtal Temple. u) The High Court accordingly recorded a finding of guilt against Accused Nos. I, 2, 3 and 5 for having murdered Gadadharanandji. This conclusion has been recorded even after noticing ee11ain lacunae in the investigation, but the High Court found that the same did not impact the credibility of the prosecution case about the involvement of the Accused Nos. I to 3 and 5, who have been found guilty of the murder of deceased Gadadharanandji.

#19. These appeals were heard together. The arguments were opened by the counsel for Accused No.2,. followed by Accused No. I and Accused No.5. Mr KTS Tulsi, learned senior counsel appearing for Accused No. I, submitted that there is no evidence to show either meeting of minds by the accused or intention to commit criminal conspiracy. The prosecution's case thatthe accused were irked by the deceased's proposal to transfer them is imaginary beciwse admittedly, the actual decision for transfer could be taken only by the entire Board, comprising of7 (seven) other members. Eliminating a single person i.e. the deceased, would not have helped the accused in any way. This is further substantiated by the fact that Accused Nos. 4 and 5 were not even Kotharis and eliminating the deceased would have served no purpose to them. Further, there is A B c D E F G H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] no evidence to prove that the deceased even proposed the transfer of the accused. The prosecution has failed to consider the possible involvement of one Navatam/Nautam/Nutan Swami and Premswarup Swami who were inimical towards the deceased. These two persons were named in the FIR but their names were dropped in the eventual chargesheet filed by CBI. Their hostile attitude towards the deceased was even recorded in the evidence of PW3 and corroborated by PW33. The impugned judgment also records that Navatam/Nautam/Nutan Swami failed a lie detector test. The real perpetrators were removed from the chargesheet but the innocent accused was charged. The alleged motive attributed to the accused is unfounded and unsubstantiated. ·

#20. Mr. Tulsi further submits that certain witnesses, like PW! 5, .who imer a/ia claimed to have last seen the deceased leaving the temple with some of the accused on the day of the alleged incident, have turned hostile and their evidence has to be disregarded. Despite PW 15 turning hostile, part of his evidence was considered while convicting the accused. Infact, evidence of PWI I reveals that Accused No.3 was at home for the entire duration of the day on which the alleged incident took place. PW! I even stated thatit was not true that Accused No.3 had taken the car out (in which the body of the deceased was allegedly transported) in the after math of the alleged incident or that he even returned with the car. Evidence of PW 14 shows that he was present at the gate of the Vadtal Temple but did not see any car/van going past of the make and model as the one ascribed to the accused. Further, even PWl4 has deposed that the deceased was in the temple on the day of the incident. Thus, the "last seen theory" falls flat.

#21. Mr. Tulsi then submits that the chain of circumstances in the present case has been broken at several places, ii1cluding: (a) The circumstances surrounding the actual kidnapping of the deceased and the place of crime being Navli, has not been substantiated by any evidence. lnfact, PW3 states that on the day of the alleged incident, he along with Accused Nos.2 and 4 and PW33 had gone to Nadiad by car and stayed there till 6PM. In the evidence of PW I I and PW35, it is stated that all the accused were in Vadtal on the day of the alleged incident. Thus, the allegation of any of the accused kidnapping the deceased on the day of the incident has been disproved; (b) The evidence of PW25 who allegedly brought a call girl for 119 A B c D E F G H 120 A B c D E F G H SUPREME COURT REPORTS [2017) 3 S.C.R. the dee.eased at the behest of the accused, sets out that he did not even know the Accused nor had he been given any message to bring any girl for the deceased. Further, the evidence of the so called call girl PW49 sets out that she did not even know PW25 and that she had never even been to the temple where the alleged incident occurred. She also states that she had not met any sadhu or maharaj at the temple. (c) PW57, the doctor who conducted the autopsy of the burnt body, failed to establish that the cause of death was by strangulation and further failed to clarify whether the burns on the body were inflicted pre-mo11em or post-mortem. lnfact, the finding of the post mo11em report shows that the burns were pre-mortem, thus completely destroyi11g the prosecution's case that the deceased died by strangulation. Further, evidence of PW 57. reveals that the right chamber of the heai1 was empty and the left chamber had clotted blood whereas medical jurisprudence dictates that in cases of asphyxia by strangulation, the right chamber should be full of clotted blood and the left chamber should be empty. (d) The panchnama at the instance of Accused No.3, wherein he inter a/ia disclosed the place where the body of the deceased was burnt and dumped, is inadmissible under S. 27 of the Indian Evidence Act. The body had already been discovered at the said place and was a matter of public record. Accused No. 3 did not reveal any exclusive information and thus the information in the panchnama was inconsequential. Further, the teeth and DNA samples of the body were not proved without reasonable doubt. Mr. Tulsi relies upon the judgment in State"/ Kar1U1tllkll v Davit/ RowrP to challenge the admissibility of the evidence on record.

#22. Mr. Tulsi submits that the courts below ignored the 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 followingjudgments to bultress his argument: Nizllm v Stute of Raj11stlu111·1 , /)/11111raj@ Dl1111u/ v 2 <2002 l 1 sec ns '(2016) I SCC550 ' (2015) 11sec378 , Da11/11t Ram v State of J/11r}·111111 4 CHARANQAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] 121 Slate of llarytuw·', Kirti Pal v Stale o.f Wes/ Be111:al 6 through Central Bureau of Investigation v Dr. Sanjay Singh & , PK Narayanan v State of Anr.7 Kerala9 and Baliya alias Bal Kishan v/s State of Madhya Pradesh 10 • , State of Haryana v Satender8 , State of UP A

#23. Mr. Huzefa Ahmadi, learned Senior Counsel, appeared for the Accused No.2. He had opened the arguments for the appellants and· B raised points some of which have already been noted earlier. He submitted that the complete chain of events has not been established by the prosecution. According to him, the deceased's proposal to transfer the Kotharis was dropped by the deceased himself. Reliance has been placed in this regard on the application made by PW3 to the High Court of Gujarat, wherein it is stated that the deceased deferred his decision to effectuate the transfers by" 6 (six) months. lnfact, Navatam/Nautam/ Nutan Swami and Premswarup Swami held a grudge against the deceased owing to the deferment as they wished to become the Kotharis in place of the incumbents. Their names were removed from the chargesheet without any explanation offered by the investigating agency. Additionally, the Sessions Court in its judgment has held that evidence of PW3 could not be considered for the purpose of establishing motive as he did not have any personal knowledge oft11e transfer of the Kotharis. Thus, no intent or motive of the accused to commit the crime was proved. c D

#24. With regard to the allegation that the accused were misappropriating temple funds, Mr. Ahmadi submits that while the prosecution relied on money seized from the houses of the accused, however, no documentary evidence has been adduced to show that Accused No.2 had assets disproportionate to his income. Mr. Ahmadi submits that the prosecution did not ask any questions with respect to the alleged disproportionate income of Accused No.2 in his statement under Section 313 of Cr.P.C. and hence cannot use that fact against him. Additionally, all the witnesses who testified regarding Accused No.2's alleged disproportionate income have turned hostile. Thus, the prosecution has miserably failed to show that Accused No.2 was misappropriating temple funds. ' (2014) 6 sec 745 '' (2015) 11sec11s 7 1994 Supp (2) SCC 707 (Paras 15 to 19) ' (2014)7 SCC 291(Paras25. 29) '(1995) I sec 142 (Paras6, 7, 9) "' (2012) 9 sec 696 (Paras 15 to 17) E F G H SUPREME COURT REPORTS [2017] 3 S.C.R.

#25. Mr. Ahmadi then submits that as regards the disappearance of the deceased from the Vadtal Temple premises, the two witnesses who claimed that they saw the deceased leaving with the accused, i.e. PW14 and PW! 5 have turned hostile. The evidence ofother witnesses in connection with the disappearance viz of PW3, PW8 and PW! 6, are contradictory. The evidence of PWl 7 shows that Accused No.2 was with him during his absence from the Ashram for one hour. None of them have implicated Accused No.2 in any way nor was it possible for .Accused No.2 to be at Navli complex when the alleged murder took place. Further, the evidence of PW64 investigating officer reveals that he attempted to falsely implicate two persons at the same time by recording statements under Section 161 of Cr.P.C. Mr. Ahmadi also invited ourattention to the discrepancy about the age of the deceased in Exhibits 98 and 95 and contended that the record was fabricated.

#26. Mr Ahmadi further submits that with reference to the allegation that the Accused killed the deceased, several factors belie the prosecution case. The panchnama drawn at the instance of Accused No.3 clearly sets out that Accused No.3 himself took the deceased to.his house in Vadtal and strangled him there. No panchnama of house of Accused No.3 was recorded. Certain other factors, such as the fact that the deceased left behind his walking stick at Vadtal Temple which was regularly used by him and without which he could not walk on his own, discrepancies in the witness statements regarding the time of the alleged kidnapping, that the deceased could not have physically picked up the call girl in his room owing to his advanced age etc., all go to show that the prosecution's case is replete with figment of imagination. The Sessions Cou1t clearly records that Accused No.2 was not present at the time when the alleged kidnapping took place. Further, the panchnama does not even make a mention of the alleged call girl who was present in the deceased's room. Thus, the allegation that Accused Nos. 2 to 5 took the deceased to the Navli Temple complex and murdered him there, is completely false and not borne out by the evidence on record.

#27. Mr. Ahmadi submits that the prosecution's case about disposal of the deceased's body is also riddled with inaccuracies and errors. The panchnama drawn at the instance of Accused No.3, wherein he revealed about the commission of crime and the disposal oftbe deceased's body, is inadmissible and in any case cannot be used against other accused. Further, the panchnama suffers from factual and procedural inaccuracies, 122 A B. c D E F G H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] a fact noticed in the impugned judgment by the High Court for disregarding part one and part three of the same as inadmissible. As regards the identification of the deceased's body is concerned, Mr. Ahmadi submits that the evidence on record and the deposition by the doctor PWl clearly show that the prosecution has fabricated the dental records of the deceased in an attempt to establish that the burnt body found in Rajasthan was that of the deceased. The High Court took note thereof in the impugned Judgment, but disregarded the same as immaterial.

#28. Mr. Ahmadi finally submits that Accused No.2 has no links with the criminal conspiracy to murder the deceased. The panchnama prepared at the instance of Accused No. 3 does not even mention the role or involvement of Accused No.2. The panchnama prepar;d at the instance of Accused No.5 deserved to be disregarded owing to contradictory statements therein. The Sessions Court has recorded that Accused No.2 did not even hold an oflicial post at the temple. Further, Accused No.2 was arrested without there being any sufficient proof against him and the prosecution went to the extent of fabricating documents to implicate him, as recorded in the impugned judgment. For the aforesaid reasons, tlie prosecution's case against Accused No.2 has not been proved beyond reasonable doubt. He pointed out that material facts were not put to the accused whilst recording his statement under Section 313 and, therefore, these facts cannot be made the basis for recording a finding of guilt against the accused. He has also produced a table in his written submissions, pointing out the discrepancies in the judgment of the trial co mt and the impugned judgment of the High Court. Mr. Ahmadi has filed elaborate written submissions. We treat the same as his argument. Mr. Ahmadi has relied upon the decisions in the cases , Mohmed lnayatullab of Pulukuri Kottaya and others v. Emperor 11 v. The State of Maharashtra 12 , and Stale of Himachid Pradesh v. Jeet Singh 13 •

#29. Mr. D.N. Ray, appeared for Accused No.5. He submits that the impugned Judgment is perverse as some of the primary findings recorded therein are diametrically opposite to the case set out by the prosecution and the findings recorded by the Sessions Court. Mr. Ray submits that the time of death of the deceased, as set out by the 11 AIR (1934) 1947 Privy Council 67 (Paras 10 & 11) "1976(1)SCC828(Paras 12to 16) 13 1999 (4) SCC 370 (Para 27) 123 A B c D E F G H 124 SUPREME COURT REPORTS [2017] 3 S.C.R. A . prosecution and as accepted by the Sessions Court, was between 3 PM to 4:30 PM whereas the High Court has assumed the time of death to be between 5 PM to 7 PM. This discrepancy arises out of the prosecution's failure to establish the time of death of the deceased.

#30. Mr. Ray then submits that the prosecution's case, as accepted by the trial Cou1i, is that the deceased was administered sleeping pills to render him unconscious after which Accused Nos. 3 to 5 strangulated him while Accused No.2 was guarding the room from outside. The High Court, however, has recorded that the prosecution fabricated evidence and planted the sleeping pills. More importantly, the High Court has changed the narrative of the prosecution and recorded that the deceased was smothered by a pillow, not strangulated. No basis for such change in narrative is fo1ihcoming. Fui1her, the prosecution's case draws support from two different panchnamas drawn by Accused No.3 and Accused · No. 5, both of which are contradictory to each other. Infact, panchnama drawn at the instance of Accused No.3 does not eve11 set out a case against Accused No.5. Finally, the entire case against Accused No.3 rests on the link that he was seen along with the deceased while leaving the Vadtal Temple complex in the car/van. This link is propagated by a sole witness, PW 15 who claims to have seen Accused No.3. PW 15, however, has been declared hostile.Jn his cross exarnination, he stated that he had only seen a white car and could not see who was sitting therein. The above discrep'ancies are fatal to the prosecution casl.l as it · puts fo1ih a new case without affording the accused an opportunity to counter the same.

#31. Mr. Ray also submits that the innocence of Accused No.5 can be inferred from the fact that no charges were levelled against him at the initial stages. Even the FIR tiled by the CBI did not contain his name. Accused No.5 was far removed from the main accused and was a stranger to the criminal conspiracy aUeged by the.prosecution.

#32. Finally, Mr. Ray submits that the presence of Accused No.5 at the stated place of offence at Navli, was spoken by PW! 7. But he was contradicted in cross examination. The evidence of PW35 infact mentions that Accused No.5 was at Vadtal at the time when the offence was committed at Navli. Further, the High Court has contradicted itself by first inferring from a panchnama that Accused No.5 was present at the place of the offence only to subsequently state that the panchnama could only be accepted in pa11 and was only true to the extent that it B c D E F G H CHARAN DAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] proved that the deceased was taken from Vadtal to Navli. The only way that the High Court inferred the involvement of Accused No.5 was his alleged presence at Navli because he was not seen at Vadtal. This reasoning is a case of gross perversity. The contradictory finding recorded by the High Court has ~eriously affected the admissibility of the panchnama. At the most, contends learned counsel, the Accused No.5 can be proceeded against for disposing of the deceased's body and not for murdering him. Mr. Ray has relied on the_ decisions in the cases of II.D. Sikand (D) Through L.R.S. vis Central Bureau of , Hodge's Case15 and Pawan Kumar Vs. Investigation and Anr. 14 State of Haryana'6• · •

#33. In reply, Ms. Kiran Suri, learned Senior Counsel appearing for the prosecution, first submits that the accused had conspired With each other to murder the deceased and that their conviction by the lower Courts is based on the evidence available on record. Ms. Suri also submits · that the chain of circumstances proving the guilt of the accused has been established and proved through the various witnesses.

#34. With regard to the guilt of the accused in appeal, Ms. Suri submits that there cannot be direct evidence of hatching a criminal conspiracy and the same has to be reasonably inferred from the evidence. In the present case, the prosecution has proved the guilt of the accused on the basis of motive, 'last-seen' theory, place of murder and disposal of body, panchnama at the instance of Accused No.5, recovery of the body of the deceased and conduct of Accused No.3.

#35. Ms. Suri submits that it is indisputable that Accused No, I was the Assistant Kothari of the temple and Accused No.2 was assisting him. From the circumstantial evidence and considering the unaccounted money found at their house/in their bank accounts, it is apparent that Accused Nos. I and 2 were involved in financial irregularities of the temple funds and that their continuation at Vadtal was threatened by the deceased's proposal to transfer the Kotharis out of the Vacftal Temple. Thus, there was clear apprehension in the minds of Accused Nos. I and 2 that they would be replaced. Ms. Suri in support of this argument has relied on the evidence of PW3, PW5, PW2 I, PW22, PW33, PW35, PW36, PW37, PW39, PW40 and PW41. Further, contends Ms. Suri "2016(12)Scale892(Paras 15, 18) " English Reports 168 Crown Cases, Liverpool Sununcr Assizes, 1838 "' (2003J 1 f sec 241 125 A B c D E F G H 126 . ~suPREME COURT REPORTS [2017] 3 S.C.R. A that the accused have not been able to give any explanation for the huge amounts of money found in their accounts and at their houses. In this regard, Ms. Suri relies upon the evidence of PW22, PW35 and PW39.

#36. On the issue of the 'last-seen' theory, Ms. Suri submits that the evidence of PW 16 clearly establishes that he saw Accused No.3 near the room of the deceased on the day and at the time he went missing. Further, PW 16 states that he initially saw the blue car (in which . the deceased was taken away) near the temple steps and later, tlv~ said blue car, along with Accused No.3, had disappeared. This has been substantiated by the evidence of PW 1 S wherein he claims that he saw Accused No.3 with the deceased at the relevant time, even though PW IS has turned hostile. Further, the car used to take away the deceased was subsequently put on fire to mislead the investigating agency. Ms. Suri also relies upon the evidence of PW3, PW8, PW14 and PW48 in this regard. 3 7. With regard to the actual murder of the deceased, Ms. Suri submits that the crucial evidence is panchnama (Exh. 198) prepared at the instance of Accused No.S. He has admitted to the place of the . crime and Accused No.3 showed the police where the body of the ·deceased had been disposed of. Further, the evidence of PW25 who brought the call girl and the evidence of PW49 the call girl summoned by the accused for the deceased, also establishes the pre·sence cf the accused at the place and time of the crime. PW49 has stated that she saw Accused No.2 at the Navli Temple complex when she was summoned there and that she had physical relations with the deceased after that. Again, while both PW25 and PW49 have turned hostile, their evidence clearly establishes the presence of the various accused at the place and time of the alleged murder. Further, panchnama clearly establishes that the deceased was strangulated in a roo1n at Navli while Accused No.2 waited outside the room. Additionally, the statement made by PW20 that Accused No.2 bought tablets from him, which were then used to sedate the deceased before the murder, is also established by the prosecution.

#38. Ms. Suri then submits that panchnama drawn at the instance of Accused No.3 and the statement given to the police was an attempt to mislead the prosecution from the real events that unfolded. The panclmama sets out the real incident wherein the deceased was mudered at. Navli and not at Vadtal as claimed by Accused No.3. Accused No.3 possessed the car/van which was subsequently found In a burnt state in B c D E F G H CHARANDAS SWAMI v. STATE OF GUJARAT & ANR. [A. M. KHANWILKAR, J.] the garage of PW 13. A false insurance claim was lodged regarding the accident to the car, which was rejected. Pertinently, Accused No.3 has not been able to explain what happened to the car.

#39. Ms. Suri finally submits that the prosecution has clearly proved the recovery of the deceased~s body and its identification .. PWSO has deposed that he found the burnt body in a ditch at Barothi Village, Rajasthan. It has been proved that the said body was of the deceased through DNA testing and by the presence of gold caps on the teeth of the body. This has been corroborated by PW 1, the doctor who put the caps on the teeth of the accused. Thus, the chain of events is complete in the present case so as to leave no manner of doubt regarding the guilt of the accused. She submits that this Cou1t should be loath to interfere with the concurrent findings of guilt recorded by the two Couits against the appellants herein. Ms. Suri has relied upon the reported decisions in the cases of Pandurang Kain Patil and Another v. State of Maharashtra 1 ', State (NCT of Delhi) v.Navjot Sandhu alias Afs:an Guru 18 , Udai Bhan v. State of U.P.19, State of Maharashtra v. Damu20 , H.P. Adorn. v. Om Prakash21 and Vasanta Sampat Dupare v. State of Maharashtra22 •

#40. We. have thus heard the learned counsel appearing for the respective parties at length. With their able assistance we have also examined the relevant record, the judgments rendered by the two Courts and the reported decisions cited by them during arguments. The prosecution case hinges on circumstantial evidence. The following circumstances have been pressed into service by the prosecution: (i)Motive; (ii) "Last seen" in the company of Accused No. 3; (iii) Murder of deceased at Navli complex and disposal of the dead body in Rajasthan; (iv) panchnamadrawn on the basis of disclosure made by Accused No. 5;