CAV JUDGMENT

(Per : HONOURABLE MR.JUSTICE C.K.BUCH)

(1) The District & Sessions Judge, Kheda at Nadiad has forwarded the copy of the judgment dated 11.06.2004 along with R & P, delivered by the ld. Presiding Officer & Addl. Sessions Judge (FTC No.1), Kheda at Nadiad in Sessions Case No. 369/1999 for confirmation of the death sentence awarded to the accused (appellants of Criminal Appeal No. 1005/2004), as per the provisions of sub-section (2) of section 28 R/w section 366(1) of Code of Criminal Procedure, 1973 (CrPC for short). This Court, on receipt of the proceedings for confirmation of death sentence awarded to all the five accused persons, ordered to issue notices to the District Magistrate as well as to the accused. Ld. Advocate appearing for all the five accused waived service of notice. The accused persons have assailed the impugned order of conviction and sentence by preferring the appeal i.e. Criminal Appeal No.1005/2004, mainly contending that the order of conviction and sentence passed by the ld. Trial Judge is not sustainable in eyes of law as well as on facts available on record. Therefore, we have dealt with the confirmation proceedings along with criminal appeal preferred by the appellants accused as the same has been admitted by this Court vide order passed earlier.

(2) Mr. PM Thakkar, ld. Senior Counsel has appeared for all the accused appellants with ld. Counsel Mr. MC Barot and with ld. Counsel Mr. Tejas Barot. Of course, all the accused persons were not represented by the same lawyer when the proceedings were before the trial Court, however, before this Court, all the accused have assailed the legality and validity of the order of conviction and sentence passed by the ld. Trial Judge. Mr. YN Ravani, Ld. Counsel has appeared for Central Bureau of Investigation (CBI for short)- the prosecuting agency and Mr. KT Dave, ld. APP has appeared for the District Magistrate as well as for State of Gujarat.

(3) It is necessary to state the facts placed by the prosecuting agency- CBI before the trial Court at the conclusion of the investigation and submission of the report under section

173(2) of CrPC.

(i) It is alleged by the CBI that one of the main temples of Shri Swaminarayan Sect of Vadtal Gadi ( Laxminarayan Dev) is situated at Vadtal and there are number of temples at other places in the country. As per the order of this Court passed in 1976, the spiritual/religious authority of the Sect is vested in the hereditary “Acharya” and the day to day administration and management of the temples is vested in a Board of Trustees. As per High Court Order, the Board consists of 8 Trustees, the Chief Kothari being the ex-officio member. In 1998, Shri Ajendra Prasad was the spiritual/religious head of the Sect. Gadadharanandji was elected as the Chairman of the Board of Trustees on 11.04.1998. Shri Bhakti Kishore Dasji was the Chief Kothari and Shri Narayan Shashtri was the Assistant Kothari.

Shrijicharan Swami was also informally working as Assistant Kothari in the temple. Soon after taking over as Chairman of the Board of Trustees, Gadadharanandji had planned to transfer Shri Narayan Shastri and Shrijicharan Swami from the Vadtal temple Kothari Office. The agenda dated 16.04.1998 was circulated amongst the Board of Trustees for the meeting of the Board to be held on 22.04.1998 in which transfer of Kotharis, inter alia, was one of the matters to be considered.

(ii) Accused Shri Narayan Shastri and Shrijicharan were deeply disturbed due to their impending transfer from the Vadtal temple Kothari office. After they failed to win the confidence of Gadadharanandji, and the pressure brought to bear on him did not work, they hatched a criminal conspiracy with co-accused and planned to kill Gadadharanandji pursuant to which he was abducted by accused Madhavdas Swami and Ghanshyamdas Swami from Vadtal temple on 03.05.1998 and taken to Sant Niwas in Navli Gurukul Complex where accused Shrijicharan and Vijay Bhagat joined them. Gadadharanan