Full Judgement
Charandas Swami Vs. State of Gujarat & ANR.
[Criminal Appeal No. 1549 of 2007]
[Criminal Appeal Nos.1550 of 2007 and 1586 of 2008]
A.M. KHANWILKAR, J
1. These appeals have been filed by the Accused No.1 (Criminal Appeal No.1586 of 2008), Accused No. 2 (Criminal Appeal No.1549 of 2007) and Accused No. 5 (Criminal Appeal No.1550 of 2007) against the judgment and final order of the High Court of Gujarat dated 1st September, 2006. The High Court has upheld the decision of the Sessions Court, convicting Accused Nos. 1, 2, 3 and 5 for offences under Sections 302 r/w 120-B, 364 and 201 of the Indian Penal Code, 1860 ('IPC') and for the murder of one Gadadharanandji. The High Court, however, has acquitted Accused No.4 of the said offences. The High Court commuted the death sentence awarded by the Sessions Court to a sentence of life imprisonment for the aforementioned four accused. Accused No.3 has not filed any appeal before this Court against the impugned judgment.
2. The factual matrix of the case in hand, as gleaned from the pleadings and submissions of the parties as also the record, is as under: The Board of Trustees of the Swami Narayan sect of Vadtal Gadi Temple comprises of 8 members, including the Chairman and Chief Kothari, who handle the administration and financial management of the temples run by the sect. One Gadadharanandji was elected as the Chairman of the Board of Trustees on 11th April 1998.
At that point in time, one Bhakti Dasji was the Chief Kothari and Narayan Shastri (Accused No. 1) was the Assistant Kothari. Charandas Swami (Accused No.2) was informally working as an assistant to Accused No. 1, while Madhav Prasad (Accused No.3), Ghanshyam (Accused No.4, now acquitted) and Vijay Bhagat (Accused No.5) were henchmen of Accused Nos.1 and 2. On 16th April, 1998, an agenda was circulated for a meeting of the Board of Trustees to be held on 22nd April, 1998, wherein the Chairman, Gadadharanandji, proposed to transfer the Kotharis away from the Vadtal Temple.
That move was not approved by the rival camp. They also feared of being exposed of their misdeeds and maladministration. On 3rd May, 1998, Gadadharanandji went missing from the temple premises. The next day i.e. 4th May, 1998, a burnt body was found in a ditch at Barothi Village, in the neighbouring State of Rajasthan which was subsequently identified as that of Gadadharanandji. A post mortem of the body revealed that the cause of death was asphyxia by strangulation. Meanwhile, one of the deceased's disciples, Jatin Bhagat (PW3) filed a missing person complaint about the sudden disappearance of Gadadharanandji with the local police on 5th May, 1998.
This complaint was transferred to the local crime branch and then the state crime branch. PW3 subsequently filed a petition before the High Court of Gujarat, which transferred the investigation of the case to the CBI on 5th October 1998. The CBI eventually on 29th October, 1998 registered a new FIR against some persons, including the Appellants, for kidnapping Gadadharanandji. During the course of investigation, all the five accused were arrested in connection with the disappearance of Gadadharanandji.
The investigation established the chain of events leading to the disappearance of Gadadharanandji. According to the prosecution, the accused kidnapped Gadadharanandji from the Vadtal Temple complex, took him in a blue car/van to the Navli Temple complex where they procured a call girl for him, after which they sedated and then strangled him. However, this chain of events was at odds with the panchnama drawn at the behest of Accused No. 3 wherein he is stated to have confessed that he himself kidnapped Gadadharanandji from the temple, drove him to his (Accused No. 3) house in Vadtal and then strangled him there using the deceased's 'khesiya' (cloth usually placed around the neck).
Accused No.3 also claimed that he returned with the deceased's body in his car to Vadtal, informed Accused No.1 about the deed and then took Accused No.5 along with him to Rajasthan where they disposed of the dead body of deceased by throwing it in a ditch and lighting it on fire. Post-investigation, the Chief Judicial Magistrate vide his order dated 10th August, 1999 remitted the case against all the five accused. The trial proceeded before the District and Sessions Court at Kheda at Hadiat, being Sessions Case No. 369 of 1999.
Various charges including those under u/S. 120-B, 364, 302 and 201 of the IPC were framed against the Accused. On 11th June, 2004, the Sessions Court, Nadiad convicted all the five accused for offence under Section 302 r/w 120-B of the IPC and sentenced them to death. The Accused were also convicted u/S. 364 r/w 120-B of the IPC and sentenced to rigorous imprisonment for life. Accused Nos. 2 and 5 were further convicted under S. 201 r/w S. 120-B and sentenced to 5 years' imprisonment. The accused preferred an appeal to the High Court of Gujarat which was heard alongwith the confirmation reference. The High Court confirmed the conviction against Accused Nos.1, 2, 3 and 5, but acquitted Accused No.4. The High Court, however, commuted the death sentence to a sentence of life imprisonment.
3. The case of the prosecution is that the accused were misappropriating funds from the temple in which they were functionaries. Gadadharanandji, being the newly elected Chairman of the Board of Trustees of the temple, intended to transfer the accused from the Vadtal Temple. This proposal bewildered and irked the accused. They conspired to and subsequently murdered Gadadharanandji to put an end to his plan to transfer them. After the murder, the accused transported the body of the deceased to Rajasthan where they burned it to destroy the evidence.
4. We shall briefly advert to the approach of the Sessions Court and that of the High Court. The trial court proceeded to answer the charges against the appellants broadly on the following basis. Firstly, it has dealt with the circumstance of motive to kidnap the deceased with a common intention to murder. It has noted that in April 1998, the deceased was elected as the chairman of the Swaminarayan Temple at Vadtal.
The Chief Kothari was in charge of administration of the temple and Accused No.1 was the assistant Kothari, helping him in administering the temple. Accused No.2, while not holding any official post, also worked in the temple, as did Accused Nos. 3 to 5. The Chief Kothari was the cashier of the temple and Accused No.1, by virtue of his position, assisted him as a cashier. Accused No.2 was also assisting Accused No.1. Further, the income generated by the temple was substantial and Accused Nos. 1 and 2 were involved in financial irregularities.
Since the Chief Kothari was very old, Accused No.1 was doing all the financial deals on his behalf. Evidence of PW39, a grocer who supplied goods to the temple, reveals that he used to supply goods to the temple. These transactions would obviously have been possible only with the knowledge and approval of Accused No.1, who was in control of the administration and financial transactions of the temple at the relevant time.
Further, PW39 gave huge amounts of cash to Accused Nos. 1 and 2, which was corroborated in the form of bills, and credit memos recovered from the house of Accused No.1. There was also a large amount of unaccounted cash recovered from the house of Accused No.2. Neither of the accused could explain the source of such cash. The evidence brings to light that Accused Nos. 1 and 2 used to get kickbacks from purchase of goods supplied to the temple.
5. The trial court then found that the deceased, by virtue of being the Chairman of the Board of Trustees, was in a position to influence the transfer of the Kotharis and had even discussed the same with the Board. The transfer of the Chief Kothari would obviously have implications for the assistant Kothari i.e. Accused No.1 and by extension, Accused No.2. Accused Nos. 1 and 2 were aware of such a proposal to transfer the Kothari and had interacted with the deceased about the same.
Accused No.1 had gone to the extent of telling the deceased that if he was transferred, he would rebel against that move. While the accused suggested that there were other persons who bore enmity towards the deceased and wanted him killed, no evidence was brought on record to substantiate the same by the defence. The prosecution case about motive of the accused to commit crime was corroborated by the evidence of PW3, PW4, PW5, PW21, PW22, PW33 and PW35. The motive of the accused to commit the crime has thus been proved.
6. The trial court then dealt with the factum of disappearance of deceased and last seen theory. The fact that the deceased disappeared on the afternoon of 3rd May, 1998, is indisputable. This is corroborated by the evidence of PW8 and PW3. The evidence of PW16 infact reveals that he had seen Accused No.3 sitting in a blue car at the steps of the Vadtal Temple around the time the deceased went missing. PW15 has also stated that he saw Accused No.3 driving away from the Vadtal Temple with the deceased in a blue coloured car. PW14 also turned hostile. The court noted that even if PW14 and PW15 had turned hostile, the totality of the evidence including of PW64 established the fact that Accused Nos. 3 and 4 were seen lastly with the deceased on the day of the disappearance. That was found crucial.
7. With regard to the presence of the accused at Navli, the trial court, relying on the evidence of PW17, found that Accused No.2 bought 7 cans of cold drinks from a shop outside the Vadtal Temple at around 2-2:30PM. The evidence of PW25, though he turned hostile, shows that he brought along a call girl-PW49 to the Navli Temple at around 2:30 PM on 3rd May, 1998; Accused No.2 met him there at around 3:00 PM. PW48 has deposed that a call was made by Accused No.2 to PW25 at around the same time. As the distance between the Vadtal and Navli Temples could be covered within 30-45 minutes, the presence of Accused No.2 at Navli is likely.
8. The trial court noticed that although PW49 has been declared hostile, she admitted to have given her statement to the investigating agency wherein she identified the deceased and of having physical relations with him on the day of the murder. This has been corroborated by an independent pancha witness.
9. The trial court has found that PW31 deposed that Accused No.5 had taken him to Navli and shown him where the alleged murder was committed. There, PW31 found tablets which were used to drug the deceased. PW28, who took videos of the same also deposed to the correctness of the video. PW20 deposed that he had supplied the said tablets to the accused. This evidence has been accepted as reliable.
10. The trial court then held that the motive behind the murder of the deceased was that he was going to transfer Accused No.1 away from the Vadtal Temple and, therefore, Accused No.1 feared losing his control over financial matters of the temple and also of being exposed of the financial irregularities committed by him in the past in relation to temple finances. The said accused, therefore, hatched a conspiracy to kidnap the deceased with an intention to murder him. The deceased was last seen in the company of Accused Nos.3 and 4 before he went missing from Vadtal. Accused No.5 showed the spot where the offence was committed. The conspiracy to commit the murder, while not proved through ocular evidence, could be established through circumstantial evidence. While Accused No.1 was not personally in the forefront, he is responsible for criminal conspiracy.
11. The trial court also dealt with the evidence regarding recovery of dead body of the deceased. It has noted that PW50 deposed that he found a burnt body in a ditch behind his house in Barothi village and informed the police about the same. A video of the body was also taken by the police. The body was examined by PW57 who inter alia noted three golden teeth and a key. Blood and skin samples of the body were taken and subsequently identified as that of the deceased after performing a DNA test with blood samples of his sister. The key found on the body was similar to the one possessed by PW3. The said key opened the lock to the room of the deceased. The investigating agency was informed about the spot of disposal of the dead body by Accused No. 3 and that was corroborated by independent witnesses. The trial court rejected the argument that the investigating agency used witnesses who were already pre-disposed against the accused.
12. The trial court then found that the evidence of PW57 clearly showed that the death of the deceased was not accidental but homicidal. The deceased had been strangulated. The argument that since the body had suffered certain bone fractures, therefore strangulation could not have been the method of murder, was rejected. The Court found that any fractures on the body would have probably occurred as a result of it being burned and also because of the advanced age of the deceased.
13. The trial court held that the fact that the location of disposal of the dead body was shown by Accused No.3 and that the nature of crime was such that it involved pre-planning, indicative of conspiracy among the accused to commit the murder.
14. The trial court then took notice of the evidence regarding attempted disappearance of the evidence. In that, after the incident, the accused tried to destroy the evidence by setting the car on fire in which they had transported the deceased and then claiming insurance for the same as an accident case. The insurance company rejected the said claim. The Court found that the evidence of PW6 clearly showed that the car did not get burned due to any accident or internal malfunction.
15. The trial court adverted to the evidence of attempt of the Accused No.5 to dispose of a chain and pendant worn by the deceased by approaching a goldsmith, one Jignesh Soni (PW19). In his evidence, PW19 identified the chain and pendant and stated that he exchanged the same with gold.
16. The trial court, on the above analysis, recorded finding of guilt against all the five accused and was of the opinion that the offence committed by them was not only heinous but also a rarest of rare case warranting the death penalty. Accordingly, a death reference was forwarded by the trial court to the High Court for confirmation.
17. Before the High Court, besides the confirmation case, appeals filed by the accused assailing the order of conviction and sentence proceeded together for hearing. The High Court re-assessed and appraised the entire evidence afresh and recorded an independent finding of guilt against Accused Nos. 1, 2, 3, and 5. The High Court at the outset noted that the prosecution was not supporting the view taken by the trial court that the case would fall into the category of rarest of rare cases warranting death penalty. After taking note of that contention, the High Court proceeded to examine as to whether the prosecution had proved the charges against the Appellants beyond any reasonable doubt.
18. The High Court's decision proceeds in the following manner: In light of the judgment in Subbaiah Ambalam v State of Tamil Nadu[1], the High Court decided to examine the entire evidence before it, independent of the findings and conclusions of the trial Court. It noted that the jurisdiction of the High Court was co-extensive with that of the trial court in assessing, appraising and appreciating evidence.
Then, adverting to the evidence of PW57 who conducted the autopsy of the burnt body found at Barothi, the High Court opined that the burns were post- mortem and not ante-mortem. The fracture found on the body was probably caused as the deceased struggled while being strangulated or due to mishandling of the dead body. The presence of a fracture does not indicate that there was any other cause of death. Death was due to asphyxia by strangulation. The burning of the body was an attempt to destroy the evidence.
The condition of the heart of the deceased, though disputed by the counsel for the accused, could not rule out the possibility that death was caused by strangulation. As regards the identity of the dead body, the High Court took note of the following: PW57, who conducted the autopsy of the dead body found at Barothi, deposed that a key tied with cotton thread was recovered from near the dead body. This key opened the lock to the room of the deceased at the Vadtal Temple. Skin samples and teeth extracts of the deceased were obtained and matched with blood samples of the sister of the deceased. DNA testing showed a biological relation between the dead person and his sister.
Three teeth of the dead body had gold caps. PW1 deposed that he had treated the deceased in 1993 and that he had put the said gold caps on the teeth of the deceased during treatment. This is corroborated by receipts and diary entries of PW1. Certain documentary evidence produced by the prosecution vis-Ã -vis photocopies of the case papers seemed to be exaggerated with regard to the number of teeth treated by PW1. Still, the deposition of PW1 was found to be reliable. PW20 had taken a video of the post mortem carried out at the spot which corroborated the items found on the body/samples taken from the body.
d) While considering the evidence regarding the circumstance of last seen together, the High Court broadly noted thus: The evidence of PW3 and PW8 corroborates the fact that the deceased was present in the Vadtal Temple on the day of his disappearance i.e. on 3rd May, 1998, at around 12:30PM. The witnesses further stated that they had left the deceased in his room while they went to get chappals but by the time they returned at around 2:30PM, he had gone from the room. PW15 deposed that around the same time, he saw the deceased sitting with Accused No.3 in a blue car and also that he saw the deceased leaving with Accused No.3 in the said blue car between 1:50PM to 2:05PM. Even though PW15 had turned hostile, his evidence could not be wholly disregarded. PW16 also deposed that he saw a blue car at the steps of the Vadtal Temple around the same time. Thus, an inference could be drawn against the accused in whose company the deceased was last seen and Accused No.3 failed to rebut the same.
e) The High Court then considered the evidence regarding the disclosure made by Accused No.3 during interrogation. That revealed to the police that the body of the deceased had been dumped in a spot at Barothi village (Exh.188). This disclosure was considered admissible u/S.27 of the Indian Evidence Act.
f) The High Court then considered the criticism of the defence that some of the panchas chosen by the prosecution were hostile towards the accused owing to prior disputes between the parties. It held that the investigating authorities ought to have been more careful before calling upon such persons who had a prior history of dispute with the accused. However, the High Court opined that the fact remains that the panchas were called merely to complete the formalities of preparing the panchnama. Hence, this lack of due diligence by itself would not render their evidence inadmissible.
g) The High Court also considered the argument of the defence that the case of the prosecution that they found various items such as pieces of cotton and tablet wrappers at the place of the alleged offence, seems highly unlikely given the time lapse between the time of the offence and the time when the officials actually reached that place. The High Court noted that there was no evidence on record to prove how such lapse of time and weather conditions would not lead to contamination of such articles alleged to have been found.
h) The High Court then dealt with the evidence regarding the blue car in which the deceased was allegedly transported to Navli and then subsequently to Barothi village, where his dead body was found burned. The High Court held that the prosecution has proved that the car did not catch fire by accident but rather was intentionally burned by the accused to destroy traces of evidence. This has been corroborated by the evidence of the official of the insurance company which insured the said vehicle.
i) With reference to the evidence of procuring a call girl for the deceased, the High Court held that the evidence of the cellphone records clearly shows that Accused No.2 was in contact with PW25, who allegedly procured the call girl for the deceased. A telephone call was made around the time of the incident, most presumably summoning PW25 and the call girl to the Navli Temple. Additionally, the call girl herself PW49, identified the picture of the deceased as the man she had been with at the time of the incident. This fact is corroborated by PW32. Although both PW25 and PW49 have turned hostile, the totality of prosecution evidence corroborates the fact that PW49 was taken to Navli by PW25.
j) The High Court also considered the argument of the defence about the possibility of involvement of other persons who were inimical towards the deceased and were also named as suspects in the FIR. This argument has been rejected owing to lack of any evidence in support of the same. The High Court held that mere ill-will of the persons towards the deceased cannot be a reason to commit murder.
k) The High Court, however, held that the prosecution failed to conclusively prove that the accused procured specific kind of tablets for drugging the deceased.
l) The High Court also did not accept the prosecution evidence of Accused No.5 having approached PW19 to exchange the gold chain and amulet of the deceased, as conclusively proved.
m) The High Court held that the documents/receipts found in the house of Accused No.1 proving large amounts of financial transactions conducted on behalf of the Vadtal Temple and purportedly bearing his signature, have been proved. The handwriting on the documents seemed to tally with the handwriting of Accused No.1.
n) The High Court then examined the circumstance of criminal conspiracy hatched by the accused. It held that Accused No.1 was a managing trustee of the Navli Temple Gurukul, while Accused No.2 was a trustee. Accused No.5 was a disciple of Accused No.2, while Accused Nos. 1 and 3 were related by virtue of being disciples of one guru. It held that while the level of intimacy between the accused by itself cannot prove much, it must be seen in the context of the fact that the accused have been charged with conspiracy to commit murder.
o) The High Court then found that after the deceased proposed the transfer of the Chief Kothari, it is Accused No.2 who conveyed the message of the head of the temple, one Acharya Maharaj, to the deceased. Further, on the day of the alleged incident, Accused No. 2 purposely took PW3 and PW33 out from the Vadtal Temple to an event, after the crime had been committed, to allay their suspicion as to the whereabouts of the deceased. Additionally, Accused Nos. 2 and 4 left after attending an event at Nadiad in the evening while telling PW3 and PW33 that they would be going to Ahmedabad/Zundal. This was presumably to mislead them. Later, both the accused surfaced at the Vadtal Temple.
p) The High Court found that there was clear evidence warranting inference of conspiracy hatched among the accused to commit the murder of the deceased. Further, considering the circumstances surrounding the incident, it is clear that more than two persons were required to carry out the crime. The fact that the Accused No.3 led the police to the place where the body was disposed of, links him to Accused Nos. 1 and 2. PW15 had also seen the deceased leaving from Vadtal with Accused No.3.
q) The High Court then noticed that the prosecution conceded that the evidence to link Accused No.4 to the incident was inadequate, as the material witnesses had turned hostile. At the most, the court could infer that Accused No.4 may have been present at Navli when the incident occurred but this would not be sufficient to convict him. However, while dealing with the presence of Accused No.5 at Navli, the High Court noted that he was present from the very beginning of the incident. Moreover, Accused No. 5 is the disciple of Accused No.2 and was even present with him on the day of the incident. Accused No.5 even led the investigating officials to the alleged room where the crime was executed in Navli. There is no reason to disbelieve that evidence. The High Court held that the disclosure made by Accused No.5 was crucial in discovering the place of murder.
r) The High Court noted that Accused No.5 was not present at Vadtal on the night of the incident, indicating that he was involved in disposing of the body of the deceased. His presence with Accused No.2, his knowledge of the murder and his conduct clearly marked him out as a co-conspirator.
s) The High Court while considering the evidence regarding the circumstance of motive, noted the following aspects: The seizure of large amounts of unaccounted cash as well as the presence of large amounts of investments from Accused Nos.1 and 2 goes to show the level of financial dealings of the said accused. No explanation has been offered by the said accused in that regard. Obviously, the said cash was illegally obtained. This goes to explain the common motive behind the actions of the accused, namely that they perceived a threat to their finances and control over the administration of Vadtal Temple.
The evidence adduced by the prosecution with regard to "last seen" theory, is such that even if there was a failure to lead evidence as to the motive of the accused, the fact that Accused No.3 pointed out the place where the body of the deceased was dumped goes to show that the crime was committed by them. The fact that the deceased was intending to transfer the Chief Kothari and that the issue was discussed between the Board members, is clearly established.
The evidence of PW5 shows that the Chief Kothari had no fixed term and enjoyed the benefit of his office until and unless the Board decided otherwise. The Board of Trustees had discussed the proposal of the deceased with regard to transfer of the Chief Kothari. This was a huge concern to Accused Nos. 1 and 2, especially since they were dealing with the finances of the Vadtal Temple and their position was put under threat.
t) After analyzing the relevant circumstances and the evidence on record, the High Court found that the prosecution had proved that the accused were amongst the inner group which had a direct say in the financial and administrative matters of the Board. Apprehending their transfer, a conspiracy was hatched. Thus, there was strong motive for the Accused No. 1 and 2 in particular to commit the crime. In furtherance of that criminal conspiracy, the deceased was taken away by Accused No. 3 in his Maruti van from Vadtal Temple. He was taken to Navli Complex where he was done to death and his dead body was then disposed of in Rajasthan. After disposing of the dead body, the car used in the commission of offence by the Accused No. 3 was set on fire to destroy the evidence. This was obviously done to mislead the investigating agency. The fact that large amounts were seized from the house of Accused Nos. 1 and 2, was sufficient to draw an inference that they had abused their position while dealing with financial matters at Vadtal Temple.
u) The High Court accordingly recorded a finding of guilt against Accused Nos. 1, 2, 3 and 5 for having murdered Gadadharanandji. This conclusion has been recorded even after noticing certain lacunae in the investigation, but the High Court found that the same did not impact the credibility of the prosecution case about the involvement of the Accused Nos.1 to 3 and 5, who have been found guilty of the murder of deceased Gadadharanandji.
19. These appeals were heard together. The arguments were opened by the counsel for Accused No.2, followed by Accused No.1 and Accused No.5. Mr KTS Tulsi, learned senior counsel appearing for Accused No.1, submitted that there is no evidence to show either meeting of minds by the accused or intention to commit criminal conspiracy. The prosecution's case that the accused were irked by the deceased's proposal to transfer them is imaginary because admittedly, the actual decision for transfer could be taken only by the entire Board, comprising of 7 (seven) other members. Eliminating a single person i.e. the deceased, would not have helped the accused in any way.
This is further substantiated by the fact that Accused Nos. 4 and 5 were not even Kotharis and eliminating the deceased would have served no purpose to them. Further, there is no evidence to prove that the deceased even proposed the transfer of the accused. The prosecution has failed to consider the possible involvement of one Navatam/Nautam/Nutan Swami and Premswarup Swami who were inimical towards the deceased.
These two persons were named in the FIR but their names were dropped in the eventual chargesheet filed by CBI. Their hostile attitude towards the deceased was even recorded in the evidence of PW3 and corroborated by PW33. The impugned judgment also records that Navatam/Nautam/Nutan Swami failed a lie detector test. The real perpetrators were removed from the chargesheet but the innocent accused was charged. The alleged motive attributed to the accused is unfounded and unsubstantiated.
20. Mr. Tulsi further submits that certain witnesses, like PW15, who inter alia claimed to have last seen the deceased leaving the temple with some of the accused on the day of the alleged incident, have turned hostile and their evidence has to be disregarded. Despite PW15 turning hostile, part of his evidence was considered while convicting the accused. Infact, evidence of PW11 reveals that Accused No.3 was at home for the entire duration of the day on which the alleged incident took place.
PW11 even stated that it was not true that Accused No.3 had taken the car out (in which the body of the deceased was allegedly transported) in the after math of the alleged incident or that he even returned with the car. Evidence of PW14 shows that he was present at the gate of the Vadtal Temple but did not see any car/van going past of the make and model as the one ascribed to the accused. Further, even PW14 has deposed that the deceased was in the temple on the day of the incident. Thus, the "last seen theory" falls flat.
21. Mr. Tulsi then submits that the chain of circumstances in the present case has been broken at several places, including:
(a) The circumstances surrounding the actual kidnapping of the deceased and the place of crime being Navli, has not been substantiated by any evidence. Infact, PW3 states that on the day of the alleged incident, he along with Accused Nos.2 and 4 and PW33 had gone to Nadiad by car and stayed there till 6PM. In the evidence of PW11 and PW35, it is stated that all the accused were in Vadtal on the day of the alleged incident. Thus, the allegation of any of the accused kidnapping the deceased on the day of the incident has been disproved;
(b) The evidence of PW25 who allegedly brought a call girl for the deceased at the behest of the accused, sets out that he did not even know the Accused nor had he been given any message to bring any girl for the deceased. Further, the evidence of the so called call girl PW49 sets out that she did not even know PW25 and that she had never even been to the temple where the alleged incident occurred. She also states that she had not met any sadhu or maharaj at the temple.
(c) PW57, the doctor who conducted the autopsy of the burnt body, failed to establish that the cause of death was by strangulation and further failed to clarify whether the burns on the body were inflicted pre-mortem or post-mortem. Infact, the finding of the post mortem report shows that the burns were pre-mortem, thus completely destroying the prosecution's case that the deceased died by strangulation. Further, evidence of PW 57 reveals that the right chamber of the heart was empty and the left chamber had clotted blood whereas medical jurisprudence dictates that in cases of asphyxia by strangulation, the right chamber should be full of clotted blood and the left chamber should be empty.
(d) The panchnama at the instance of Accused No.3, wherein he inter alia disclosed the place where the body of the deceased was burnt and dumped, is inadmissible under S. 27 of the Indian Evidence Act. The body had already been discovered at the said place and was a matter of public record. Accused No. 3 did not reveal any exclusive information and thus the information in the panchnama was inconsequential. Further, the teeth and DNA samples of the body were not proved without reasonable doubt. Mr. Tulsi relies upon the judgment in State of Karnataka v David Rozari[2] to challenge the admissibility of the evidence on record.
22. Mr. Tulsi submits that the courts below ignored the well-established principle that in a case of circumstantial evidence, each and every circumstance has to be proved by independent, cogent evidence and each circumstance must be connected to each other as to complete the chain of circumstances. According to him, none of the circumstances in the present matter have been independently proved and there is a failure to complete the chain of circumstances. Mr. Tulsi has also relied on the following judgments to buttress his argument: Nizam v State of Rajasthan[3], Daulat Ram v State of Haryana[4], Dhanraj@ Dhand v State of Haryana[5], Kirti Pal v State of West Bengal [6], State of UP through Central Bureau of Investigation v Dr. Sanjay Singh & Anr.[7], State of Haryana v Satender[8], PK Narayanan v State of Kerala[9] and Baliya alias Bal Kishan v/s State of Madhya Pradesh[10].
23. Mr. Huzefa Ahmadi, learned Senior Counsel, appeared for the Accused No.2. He had opened the arguments for the appellants and raised points some of which have already been noted earlier. He submitted that the complete chain of events has not been established by the prosecution. According to him, the deceased's proposal to transfer the Kotharis was dropped by the deceased himself. Reliance has been placed in this regard on the application made by PW3 to the High Court of Gujarat, wherein it is stated that the deceased deferred his decision to effectuate the transfers by 6 (six) months.
Infact, Navatam/Nautam/Nutan Swami and Premswarup Swami held a grudge against the deceased owing to the deferment as they wished to become the Kotharis in place of the incumbents. Their names were removed from the chargesheet without any explanation offered by the investigating agency. Additionally, the Sessions Court in its judgment has held that evidence of PW3 could not be considered for the purpose of establishing motive as he did not have any personal knowledge of the transfer of the Kotharis. Thus, no intent or motive of the accused to commit the crime was proved.
24. With regard to the allegation that the accused were misappropriating temple funds, Mr. Ahmadi submits that while the prosecution relied on money seized from the houses of the accused, however, no documentary evidence has been adduced to show that Accused No.2 had assets disproportionate to his income. Mr. Ahmadi submits that the prosecution did not ask any questions with respect to the alleged disproportionate income of Accused No.2 in his statement under Section 313 of Cr.P.C. and hence cannot use that fact against him. Additionally, all the witnesses who testified regarding Accused No.2's alleged disproportionate income have turned hostile. Thus, the prosecution has miserably failed to show that Accused No.2 was misappropriating temple funds.
25. Mr. Ahmadi then submits that as regards the disappearance of the deceased from the Vadtal Temple premises, the two witnesses who claimed that they saw the deceased leaving with the accused, i.e. PW14 and PW15 have turned hostile. The evidence of other witnesses in connection with the disappearance viz of PW3, PW8 and PW16, are contradictory. The evidence of PW17 shows that Accused No.2 was with him during his absence from the Ashram for one hour. None of them have implicated Accused No.2 in any way nor was it possible for Accused No.2 to be at Navli complex when the alleged murder took place. Further, the evidence of PW64 investigating officer reveals that he attempted to falsely implicate two persons at the same time by recording statements under Section 161 of Cr.P.C. Mr. Ahmadi also invited our attention to the discrepancy about the age of the deceased in Exhibits 98 and 95 and contended that the record was fabricated.
26. Mr Ahmadi further submits that with reference to the allegation that the Accused killed the deceased, several factors belie the prosecution case. The panchnama drawn at the instance of Accused No.3 clearly sets out that Accused No.3 himself took the deceased to his house in Vadtal and strangled him there. No panchnama of house of Accused No.3 was recorded. Certain other factors, such as the fact that the deceased left behind his walking stick at Vadtal Temple which was regularly used by him and without which he could not walk on his own, discrepancies in the witness statements regarding the time of the alleged kidnapping, that the deceased could not have physically picked up the call girl in his room owing to his advanced age etc., all go to show that the prosecution's case is replete with figment of imagination.
The Sessions Court clearly records that Accused No.2 was not present at the time when the alleged kidnapping took place. Further, the panchnama does not even make a mention of the alleged call girl who was present in the deceased's room. Thus, the allegation that Accused Nos. 2 to 5 took the deceased to the Navli Temple complex and murdered him there, is completely false and not borne out by the evidence on record.
27. Mr. Ahmadi submits that the prosecution's case about disposal of the deceased's body is also riddled with inaccuracies and errors. The panchnama drawn at the instance of Accused No.3, wherein he revealed about the commission of crime and the disposal of the deceased's body, is inadmissible and in any case cannot be used against other accused. Further, the panchnama suffers from factual and procedural inaccuracies, a fact noticed in the impugned judgment by the High Court for disregarding part one and part three of the same as inadmissible. As regards the identification of the deceased's body is concerned, Mr. Ahmadi submits that the evidence on record and the deposition by the doctor PW1 clearly show that the prosecution has fabricated the dental records of the deceased in an attempt to establish that the burnt body found in Rajasthan was that of the deceased. The High Court took note thereof in the impugned Judgment, but disregarded the same as immaterial.
28. Mr. Ahmadi finally submits that Accused No.2 has no links with the criminal conspiracy to murder the deceased. The panchnama prepared at the instance of Accused No. 3 does not even mention the role or involvement of Accused No.2. The panchnama prepared at the instance of Accused No.5 deserved to be disregarded owing to contradictory statements therein. The Sessions Court has recorded that Accused No.2 did not even hold an official post at the temple.
Further, Accused No.2 was arrested without there being any sufficient proof against him and the prosecution went to the extent of fabricating documents to implicate him, as recorded in the impugned judgment. For the aforesaid reasons, the prosecution's case against Accused No.2 has not been proved beyond reasonable doubt. He pointed out that material facts were not put to the accused whilst recording his statement under Section 313 and, therefore, these facts cannot be made the basis for recording a finding of guilt against the accused.
He has also produced a table in his written submissions, pointing out the discrepancies in the judgment of the trial court and the impugned judgment of the High Court. Mr. Ahmadi has filed elaborate written submissions. We treat the same as his argument. Mr. Ahmadi has relied upon the decisions in the cases of Pulukuri Kottaya and others v. Emperor[11], Mohmed Inayatullah v. The State of Maharashtra[12], and State of Himachal Pradesh v. Jeet Singh[13].
29. Mr. D.N. Ray, appeared for Accused No.5. He submits that the impugned Judgment is perverse as some of the primary findings recorded therein are diametrically opposite to the case set out by the prosecution and the findings recorded by the Sessions Court. Mr. Ray submits that the time of death of the deceased, as set out by the prosecution and as accepted by the Sessions Court, was between 3 PM to 4:30 PM whereas the High Court has assumed the time of death to be between 5 PM to 7 PM. This discrepancy arises out of the prosecution's failure to establish the time of death of the deceased.
30. Mr. Ray then submits that the prosecution's case, as accepted by the trial Court, is that the deceased was administered sleeping pills to render him unconscious after which Accused Nos. 3 to 5 strangulated him while Accused No.2 was guarding the room from outside. The High Court, however, has recorded that the prosecution fabricated evidence and planted the sleeping pills. More importantly, the High Court has changed the narrative of the prosecution and recorded that the deceased was smothered by a pillow, not strangulated. No basis for such change in narrative is forthcoming.
Further, the prosecution's case draws support from two different panchnamas drawn by Accused No.3 and Accused No. 5, both of which are contradictory to each other. Infact, panchnama drawn at the instance of Accused No.3 does not even set out a case against Accused No.5. Finally, the entire case against Accused No.3 rests on the link that he was seen along with the deceased while leaving the Vadtal Temple complex in the car/van. This link is propagated by a sole witness, PW15 who claims to have seen Accused No.3. PW15, however, has been declared hostile. In his cross examination, he stated that he had only seen a white car and could not see who was sitting therein. The above discrepancies are fatal to the prosecution case as it puts forth a new case without affording the accused an opportunity to counter the same.
31. Mr. Ray also submits that the innocence of Accused No.5 can be inferred from the fact that no charges were levelled against him at the initial stages. Even the FIR filed by the CBI did not contain his name. Accused No.5 was far removed from the main accused and was a stranger to the criminal conspiracy alleged by the prosecution.
32. Finally, Mr. Ray submits that the presence of Accused No.5 at the stated place of offence at Navli, was spoken by PW17. But he was contradicted in cross examination. The evidence of PW35 infact mentions that Accused No.5 was at Vadtal at the time when the offence was committed at Navli. Further, the High Court has contradicted itself by first inferring from a panchnama that Accused No.5 was present at the place of the offence only to subsequently state that the panchnama could only be accepted in part and was only true to the extent that it proved that the deceased was taken from Vadtal to Navli.
The only way that the High Court inferred the involvement of Accused No.5 was his alleged presence at Navli because he was not seen at Vadtal. This reasoning is a case of gross perversity. The contradictory finding recorded by the High Court has seriously affected the admissibility of the panchnama. At the most, contends learned counsel, the Accused No.5 can be proceeded against for disposing of the deceased's body and not for murdering him. Mr. Ray has relied on the decisions in the cases of H.D. Sikand (D) Through L.R.S. v/s Central Bureau of Investigation and Anr.[14], Hodge's Case[15] and Pawan Kumar Vs. State of Haryana[16].
33. In reply, Ms. Kiran Suri, learned Senior Counsel appearing for the prosecution, first submits that the accused had conspired with each other to murder the deceased and that their conviction by the lower Courts is based on the evidence available on record. Ms. Suri also submits that the chain of circumstances proving the guilt of the accused has been established and proved through the various witnesses.
34. With regard to the guilt of the accused in appeal, Ms. Suri submits that there cannot be direct evidence of hatching a criminal conspiracy and the same has to be reasonably inferred from the evidence. In the present case, the prosecution has proved the guilt of the accused on the basis of motive, 'last-seen' theory, place of murder and disposal of body, panchnama at the instance of Accused No.5, recovery of the body of the deceased and conduct of Accused No.3.
35. Ms. Suri submits that it is indisputable that Accused No.1 was the Assistant Kothari of the temple and Accused No.2 was assisting him. From the circumstantial evidence and considering the unaccounted money found at their house/in their bank accounts, it is apparent that Accused Nos.1 and 2 were involved in financial irregularities of the temple funds and that their continuation at Vadtal was threatened by the deceased's proposal to transfer the Kotharis out of the Vadtal Temple.
Thus, there was clear apprehension in the minds of Accused Nos. 1 and 2 that they would be replaced. Ms. Suri in support of this argument has relied on the evidence of PW3, PW5, PW21, PW22, PW33, PW35, PW36, PW37, PW39, PW40 and PW41. Further, contends Ms. Suri that the accused have not been able to give any explanation for the huge amounts of money found in their accounts and at their houses. In this regard, Ms. Suri relies upon the evidence of PW22, PW35 and PW39.
36. On the issue of the 'last-seen' theory, Ms. Suri submits that the evidence of PW16 clearly establishes that he saw Accused No.3 near the room of the deceased on the day and at the time he went missing. Further, PW16 states that he initially saw the blue car (in which the deceased was taken away) near the temple steps and later, the said blue car, along with Accused No.3, had disappeared. This has been substantiated by the evidence of PW15 wherein he claims that he saw Accused No.3 with the deceased at the relevant time, even though PW15 has turned hostile. Further, the car used to take away the deceased was subsequently put on fire to mislead the investigating agency. Ms. Suri also relies upon the evidence of PW3, PW8, PW14 and PW48 in this regard.
37. With regard to the actual murder of the deceased, Ms. Suri submits that the crucial evidence is panchnama (Exh. 198) prepared at the instance of Accused No.5. He has admitted to the place of the crime and Accused No.3 showed the police where the body of the deceased had been disposed of. Further, the evidence of PW25 who brought the call girl and the evidence of PW49 the call girl summoned by the accused for the deceased, also establishes the presence of the accused at the place and time of the crime. PW49 has stated that she saw Accused No.2 at the Navli Temple complex when she was summoned there and that she had physical relations with the deceased after that. Again, while both PW25 and PW49 have turned hostile, their evidence clearly establishes the presence of the various accused at the place and time of the alleged murder. Further, panchnama clearly establishes that the deceased was strangulated in a room at Navli while Accused No.2 waited outside the room. Additionally, the statement made by PW20 that Accused No.2 bought tablets from him, which were then used to sedate the deceased before the murder, is also established by the prosecution.
38. Ms. Suri then submits that panchnama drawn at the instance of Accused No.3 and the statement given to the police was an attempt to mislead the prosecution from the real events that unfolded. The panchnama sets out the real incident wherein the deceased was murdered at Navli and not at Vadtal as claimed by Accused No.3. Accused No.3 possessed the car/van which was subsequently found in a burnt state in the garage of PW13. A false insurance claim was lodged regarding the accident to the car, which was rejected. Pertinently, Accused No.3 has not been able to explain what happened to the car.
39. Ms. Suri finally submits that the prosecution has clearly proved the recovery of the deceased's body and its identification. PW50 has deposed that he found the burnt body in a ditch at Barothi Village, Rajasthan. It has been proved that the said body was of the deceased through DNA testing and by the presence of gold caps on the teeth of the body. This has been corroborated by PW1, the doctor who put the caps on the teeth of the accused.
Thus, the chain of events is complete in the present case so as to leave no manner of doubt regarding the guilt of the accused. She submits that this Court should be loath to interfere with the concurrent findings of guilt recorded by the two Courts against the appellants herein. Ms. Suri has relied upon the reported decisions in the cases of Pandurang Kalu Patil and Another v. State of Maharashtra[17], State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[18], Udai Bhan v. State of U.P.[19], State of Maharashtra v. Damu[20], H.P. Admn. v. Om Prakash[21] and Vasanta Sampat Dupare v. State of Maharashtra[22].
40. We have thus heard the learned counsel appearing for the respective parties at length. With their able assistance we have also examined the relevant record, the judgments rendered by the two Courts and the reported decisions cited by them during arguments. The prosecution case hinges on circumstantial evidence. The following circumstances have been pressed into service by the prosecution: Motive; "Last seen" in the company of Accused No. 3; Murder of deceased at Navli complex and disposal of the dead body in Rajasthan; Panchnama drawn on the basis of disclosure made by Accused No. 5; The recovery of dead body and its identification; The discovery of location, on the basis of disclosure made by Accused No.3, where the dead body was dumped; Conduct of Accused No. 3 to mislead the investigation; Criminal conspiracy to commit the crime.
41. In all, five accused were put on trial. Accused No. 4 has been acquitted by the High Court. The prosecution has not challenged the acquittal of Accused No. 4. In fact, from the judgment of the High Court it is evident that the prosecution in all fairness conceded that the evidence against Accused No. 4 was insufficient. As regards Accused No. 3, both the courts have found that the prosecution succeeded in establishing the guilt of Accused No. 3. As a result, he has been convicted by the trial court and the finding of guilt against him has been affirmed by the High Court. Accused No. 3 has not filed any appeal against his conviction. That leaves us to consider the case against Accused Nos. 1, 2 and 5 in the present appeals.
42. Before we embark upon the points urged by the counsels appearing for the respective appellants, it may be apposite to bear in mind the settled legal position about the quality of evidence required for recording a finding of guilt against the accused in respect of circumstantial evidence. (See decisions relied by the Appellants, Paras 15 to 19 of Dr. Sanjay Singh (supra), Para 18 of H.D. Sikand (supra); and Sharad Birdhichand Sarda v. State of Maharashtra[23]). At the same time, we must remind ourselves of the settled legal position that this Court should be loath to overturn the concurrent findings of fact recorded by the two Courts unless the same are found to be palpably untenable or perverse.
43. In this backdrop, we shall now examine the findings recorded by the two Courts with reference to the relevant circumstances on the basis of which finding of guilt has been recorded against the appellants. The first such circumstance is about the presence of Gadadharanandji at the Vadtal Temple complex at around 12:30 - 12:45 P.M. on 03.05.1998. Both the Courts have concurrently found that the prosecution has succeeded in establishing the fact that Gadadharanandji returned to the Vadtal Temple at around 12:30 - 12:45 P.M.
This has been stated by PW3 who was present in the room of Gadadharanandji at the relevant time. After Gadadharanandji returned, PW3 pressed his legs for about half an hour and left the room at around 1:00 P.M. PW3 returned to the room at around 2:00 - 2:30 P.M. and noticed that the turban and walking stick of Gadadharanandji were left behind in the room but Gadadharanandji himself was not seen around. PW 8 has also deposed that on the day of the incident, he had reached the Vadtal Temple complex/residence of Gadadharanandji at around 11:00 A.M. At that time, PW3 and PW33 were also present. PW8 has also stated that Gadadharanandji arrived at the Vadtal Temple in a vehicle about half an hour later, after which PW3 and he went inside the room of Gadadharanandji and PW3 pressed his legs.
At that time he (PW8) sat on the sofa and read some paper. PW33 has also deposed that on the day of incident, he was at the Vadtal Temple complex when Gadadharanandji left for 'Khandli' (Khanjali) village at around 8:00 A.M. and returned to the temple at 12:00 - 12:30 P.M. PW16 has also deposed that on the day of incident at around 1:00 - 1:15 P.M., he entered the room of Gadadharanandji along with one Gandalal and served him for five minutes before leaving the room. From the evidence of these witnesses, the presence of Gadadharanandji at Vadtal Temple complex on 03.05.1998 between 12:00 - 1:30 P.M. is indisputable. No serious argument has been advanced to challenge this factual position.
44. The argument of the appellants, however, is that there is no credible evidence regarding the manner of disappearance of Gadadharanandji on 03.05.1998 after 1:30 P.M. For, the prosecution has not produced any direct evidence regarding the manner of disappearance of Gadadharanandji from the Vadtal Temple, as to whether he was forcibly kidnapped from his room or coaxed to go to the Navli Temple complex by the accused. However, the prosecution has certainly produced evidence to establish the fact that Gadadharanandji was seen along with Accused No.3 in a car, leaving the Vadtal Temple. The Trial Court as well as the Appellate Court have relied upon the evidence of PW15 and 16, for having established the aforesaid fact. The prosecution has also relied on the evidence of PW3 and PW14. But PW3 does not claim to have personally seen Gadadharanandji leaving the room along with any person, much less Accused No.3. He could not have witnessed that event as he had gone out to fetch chappals and by the time he returned at 2:00 - 2:30 P.M., Gadadharanandji was not seen in his room. PW14 was examined to establish the fact under consideration.
However, he turned hostile. In his statement given to the investigating agency, he claimed to have seen the deceased leaving the Vadtal Temple in a blue car but in his evidence before the Court later changed his stance by saying that he never saw such a car. However, the prosecution has been able to establish from the totality of the evidence that Gadadharanandji was seen going in a car from Vadtal Temple. PW15, who also turned hostile, initially deposed that he saw the deceased leaving the Vadtal Temple with Accused No.3 in a blue car but subsequently stated that he had seen a white colour Maruti car coming out of the temple gate with "Swami" sitting in the front. Be it noted that Accused No.3 did not cross examine PW15 or challenged the version of his presence at the spot spoken by this witness in any manner.
The Courts below have accepted the version of PW15 to the limited extent of having seen the deceased going out of the Vadtal Temple in a car along with Accused No.3. The fact that Accused No.3 was sitting in the blue colour car parked near the steps of Sabha Mandap at the relevant time has been corroborated by the evidence of PW16. The courts below have accepted the evidence of PW16 as truthful and reliable. The criticism by the appellants, however, is that the presence of PW16 has not been spoken either by PW3 or by PW8.
From the evidence of PW16, however, it is seen that PW16 arrived at the room of Gadadharanandji at around 1:00 P.M. - 1:15 P.M. when PW3 and PW8 had already left. PW16 along with one Gandalal remained inside the room of Gadadharanandji for some time and he (PW16) served him for around five minutes before leaving the room. PW16 thereafter went to the nearby machine room from where he saw a blue colour car parked near the steps of the temple, in which Accused No.3 was sitting. He then went to sleep and when he woke up around 2:00 - 2:20 P.M., the said blue car and Accused No.3 was not seen.
The Courts below after analyzing this evidence, have recorded a concurrent finding including by weighing the admissible part of the evidence of hostile witnesses and of PW16. The view so taken cannot be said to be perverse. The Trial Court found that the evidence given by the above named witnesses was reliable atleast with regard to the manner of disappearance of Gadadharanandji from Vadtal Temple. The discrepancy in the evidence of these witnesses has been considered by the Trial court before it recorded the finding on the circumstance under consideration.
Even the Appellate Court reached at the same conclusion independently. Both the Courts have analysed the evidence and after sifting the irrelevant or inadmissible part therefrom, found that the evidence was sufficient to answer the circumstance against the appellants. The two Courts have held that Gadadharanandji was last seen together with Accused No.3 leaving the Vadtal Temple complex in a blue car and that he was not seen thereafter until his dead body was found on 4th May, 1998 (i.e. next day of disappearance) at Barothi village in the neighbouring state of Rajasthan. This finding arrived at by the Courts below is unassailable. It is neither perverse nor warrants interference by this Court.
45. The dead body of deceased Gadadharanandji was found on 4th May, 1998 in a burnt condition in a ditch behind the house of PW50 in Barothi village in Rajasthan. How the dead body of Gadadharanandji reached that spot was revealed by none other than Accused No.3. In what circumstances burnt injuries were caused on the dead body of Gadadharanandji, no prosecution witness has spoken about that. Be that as it may, the fact that the dead body recovered from Barothi village on 4th May, 1998 was that of Gadadharanandji could be known only after Accused No.3, during the course of investigation, made a disclosure about the location where he had disposed of the dead body of Gadadharanandji.
Till the aforesaid disclosure was made, in the records of the Rajasthan police, the dead body was noted as that of an unknown person. If, the Accused No.3 had not disclosed to the Investigating Officer about the location where the dead body was dumped by him - which information was personally known to him and at best Accused No.5 and none else, then the investigation would not have made any headway. The disclosure made by Accused No.3 to the investigating officer was recorded in the panchanama Exh. 188, when he had led the police party to the spot where the dead body was dumped by him.
That location matched with the location from where the dead body of an unknown person was recovered on 4th May, 1998 on the information given by PW50 to the local police at Barothi. The fact that the dead body was already recovered from the same place on 4th May, 1998 and so noted in the public records in the State of Rajasthan does not undermine the admissibility of the disclosure made by Accused No.3 to the investigating officer about the location where the dead body of Gadadharanandji was dumped by him, which information was exclusively within the personal knowledge of Accused No. 3.
The fact that the dead body recovered on 4th May 1998 was of Gadadharanandji, was unraveled and discovered only after the results of its medical examination became available to the investigating agency. Till then, it was considered to be of an unknown person. The Courts below have accepted the case of the prosecution that the disclosure made by Accused No.3 about the location where the dead body of Gadadharanandji was dumped by him, was admissible under Section 27 of the Evidence Act. The appellants, however, take exception to that by relying on the reported decisions. In our view, the decision in the case of Navjot Sandhu (Supra) has adverted to all the previous decisions and restated the legal position. In paragraph 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the Evidence Act, the Court formulated two questions which read thus:
"(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things - concrete or non- concrete.
(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused - whether can be put against him under Section 27."
In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paragraphs 115 to 118. The Court then after analyzing Section 27 of the Evidence Act, in paragraphs 120 to 144 adverted to the relevant decisions on the point. In paragraphs 120 and 121, the Court noted thus:
"120. The history of case-law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects:
(i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27.
(ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent
