Biren Vaishnav, J.
1. This appeal has been filed by the accused, he having been convicted for offences under sections 302, 397, 201 and 363 of Indian Penal Code. By the impugned judgment and order dated 15.03.2012 passed by the learned Sessions Judge at Rajpipla, the accused has been convicted and sentenced to undergo life imprisonment.
2. The case of the prosecution as per the charge at Exh.5 is that between 5.P.M of 12.11.2011 and 9.A.M of 15.11.2011. Jayendra Devdutt Dave was found dead in room no.8 of the Garudeshwar guesthouse. The death occurred due to strangulation with the help of a nylon rope which the accused used, when he was the co-occupant with deceased at room no.8 of the guesthouse. After having committed the act, the room was locked from outside and the keys were thrown away. The accused took away the mobile and the cash of the accused. The accused was therefore also charged for offences under sections 302, 397 and 201 of IPC.
3. The deceased's daughter Neha was also at the guesthouse and was kidnapped and therefore section 366 was also invoked against the accused.
4. Harishchandra Purshottam Navre, was a clerk working at the guesthouse at Garudeshwar. In the morning of 15.11.2011, while he was at the guest house office, sitting with Manager Bakulbhai Vasantbhai Godbole and Somabhai Tadvi, one of the guests of the guesthouse who was leaving, informed Bakulbhai, the manager that a foul smell was emanating from the room no.8 of the guesthouse. On being so informed, he along with the sweeper Soma Himmat Tadvi went to room no.8 and found the room locked from outside. When they peeped into the room from the window, they found a body of a man lying covered with a quilt. They went back to the room and informed the Manager who in turn informed the police. The police arrived soon. The room was opened with a second set of keys that the manager had. On opening the room, they found that a green colored nylon rope was tied around the neck of the body and the other side of the rope was tied to the iron cot. Blood was oozing out of the wound. Maganbhai Desaibhai Patel, the accountant working at the guesthouse, on examination of the register found that the room no.8 was alloted on 12.11.2011 to one Jayendra Devduttray Dave, a resident of Himmatnagar who had entered the details in the register in his own handwriting. The details of the register further revealed that the check out date was shown as 13.11.2011. The register further showed that in addition to the signatory to the register, the number of other guests was shown to be two. The informant in the FIR stated that he had not seen the third occupant of the room, however, from the register and the entry no.2657 of that register showed that the room was occupied by three guests.
5. The first informant Harishchandra Purshottam Navre was examined as PW6, at Exh.29. He stated in his testimony that he was working as a clerk at the Garudeshwar guest house. Bakuleshwar Vasantray Godboley was the manager and Maganbhai Desai was the accountant. Soma Himmat Tadvi was also working at the guesthouse. The guesthouse had eight rooms. On 15.11.2011, when he was on duty and was in the office with the Manager and the sweeper Somabhai Tadvi, the tourists who had come the previous day from Gujarat, were leaving after returning the keys of the room. One of the guests informed the manager Bakulbhai that a foul smell was coming from room no.8 of the guesthouse. He along with Somabhai went to the room and found the room locked from outside. When they peeped in from the open window, they found a body lying on the cot and covered with a quilt. They went back to the office to inform the manager Bakulbhai, who in turn informed the police. When the police arrived, the room was unlocked with the second set of keys. The body was lying on the cot with a nylon rope tied around the neck. He identified the nylon rope, article 12, which was shown to him. On examining the register, it was found from the extract of the register that the room was registered in the name of Jayendra Devduttray Dave. The guest had occupied the room on 12.11.2011. The room was alloted to three guests. Rs.75 was paid as room rent. The check out date was registered as 13.11.2011. The details in the register were in the handwriting of the deceased. Accountant Maganbhai had alloted the room. He confirmed to have lodged the FIR which was at Exh. 30.
In his cross-examination, he admitted that the deceased had not come to collect the keys in his presence and that he had not seen the deceased before the room was so alloted. He further admitted that it was on 06.11.2011 that Jayendrabhai had occupied room no.4 which was alloted by him. In all two persons had been alloted room no.4. He agreed to a suggestion that all the rooms are cleaned everyday and that from the date between 12.11.2011 and 15.11.2011, the sweeper had not informed that the room no.8 was locked.
6. Bakulchandra Vasantrav Godbole, PW8, at Exh.32 was the manager of the Garudeshwar guesthouse. He in his testimony stated that the records of the guests who occupied the rooms are entered into a register. The entries in the register are made by the guests in their own handwriting. On 12.11.2011, at 5 PM in the evening he along with accountant Maganbhai was in the office and a man between the age of 65 & 70 years came to him and asked for a room for two days. Maganbhai handed over the keys of room no.8. The guest filled in the details in the register in his own handwriting at entry no.2657. His name was Jayendra Devdutt Dave. He was accompanied by a lady in the age of 35 to 40 years who was waiting outside the office. He identified the lady as Nehaben, who was present in the Court. According to this witness, Maganbhai escorted the guest and the lady to the room. The next morning when Somabhai Himmatbhai, the sweeper went to the room, he found the room locked from outside. No further inquiry was made as according to him, several guests would leave in the morning towards Nareshwar with the keys of the room that they occupied.
7. On 15.11.2011 at about 9 AM, guests who had arrived on the previous day were leaving the guesthouse. One of the guests told him and informed him that there was foul smell emanating from room no.8 of the guesthouse. He sent the sweeper Somabhai to find out. The sweeper found that the room was locked from outside, and the window was open. When they peeped in, they found a body covered with a quilt. Police was informed on telephone and when they arrived, the room was opened with the second set of keys. They found a body lying on the cot, covered. A nylon rope was found tied around the neck. He further in his testimony stated that it was the same person who had entered his name in the register on 12.11.2011 and the room was alloted for three occupants of the room. He identified the accused in Court as the third occupant of the room. However, he could not name the person. He also identified Nehaben @ Tina who also present in Court as the third occupant of room no.8. He further stated that he had after the room
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was alloted, never seen the three leaving the room together. He further stated in his testimony that he was later on informed that the third male occupant had got a nylon rope from a shop in Garudeshwar and killed the deceased. Apparently the motive was to rob the deceased of the cash he was carrying. This witness was cross-examined. He admitted that it was for the first time in the Court that he was stating that he had seen the accused together with the deceased. He agreed that it was the same person who had occupied the room on 06.11.2011.8. Maganbhai Desaibhai Patel, PW9, at Exh.33, was the accountant working at the Garudeshwar guesthouse. According to this witness, on 06.11.2011, in the afternoon, two elders had occupied a room and the room was alloted by Harishchandra who is also known as Shyambhai. Room No.4 was alloted to these guests. In the register, name was entered as Jayendrabhai. On 12.11.2011 at around 4 PM, the same gentleman who occupied room no.4 on 06.11.2011 arrived and asked for a room, therefore Room No.8 was alloted to him. On 15.11.2011 when a guest was leaving, he informed them that a stench was coming from room no.8. Inquiries were made, police was informed and then the room was opened. They found a body lying on the cot.9. PW12, at Exh.36 is Bhushan, son of deceased Jayendrabhai. In his testimony, he stated that he is working with HDFC company as team leader at Ahmedabad. His elder brother, whose name is Chetanbhai resides at Chandkheda with Nehaben, his younger sister, aged around 40. Neha was married in 1997 at Ahmedabad to one Dhirenbhai Adhyaru. She was mentally weak and had separated from Dhirenbhai and was staying with her father Jayendrabhai. Jayendrabhai was engaged in the business of diesel engine at Himmatnagar. However, after some time, he left his business and was staying with Chetan at Ahmedabad.10. Neha was mentally challenged and was placed under the care of Sahyog Krusth Ashram at Modasa. She would visit home during Diwali. In August, 2011, his father left home in order to find a job. He went to Ambaji to work as a manager at a Dharamshala. His father would regularly call every five to six days from his mobile phone. His father had called last Diwali and informed him that he was staying alone at Ambaji Dharamshala and that he would fetch Neha during the Diwali vacations. On around 20.10.2011, Neha had joined her father at Ambaji. On 27.10.2011, on the day of new year, his father had called him from mobile no.7698489884. His father had informed him that Neha would go back to Modasa Ashram on 06.11.2011. There were no calls from his father after that date.11. Ayubkhan Abdul Rehman was his father's friend who after a few days informed him that he had received a call from Chetan that his father had left Ambaji for an unknown place.12. On 15.11.2011, at around 4 PM Ayubbhai called and informed him that he was sitting at Chetan's place. They had received a call from the Garudeshwar police station and therefore, they were leaving for Garudeshwar and he also should reach Garudeshwar as soon as possible. The police had informed him that their father had died. So he along with his uncle Manish and father-in-law Jagdishbhai left for Garudeshwar police station. When they reached the police station, they were taken to the Kevadia dispensary and they found the body of his father in the postmortem room. At that point of time, he did not suspect any individual and accordingly had given his statement to the police. He identified the accused in the Court and stated that he knew the individual much before the incident and his name was Jyotindra Joshi and he was a friend of his father. He was addressed as 'Joshi uncle'. When his father was staying with him, Joshi uncle had come home to meet his father. When they went to the police station, they did not know the whereabouts of their sister Neha. The next day, Chetan had received a call from an unknown number from the Bharuch railway station who informed him that a lady with a chit in her hand with a telephone number written on it was at the railway station. The Garudeshwar police made inquiries and the lady at the railway station was identified as Neha. Chetan had informed his friend Vikas who was staying at Bharuch to get Neha along with the Garudeshwar police. Neha was then brought to the police station and she informed the police that when she was at her school, Joshi uncle had taken her to Ambaji. From Ambaji, she along with her father and Joshi uncle, had left together and then gone to the temple where all the three stayed together. On the next morning when she returned after the bath, she found that Joshi uncle was trying to strangulate her father with a nylon rope. He was pressing hard against her father's neck. After that, she was taken around several places with Joshi uncle. The accused Joshi uncle thereafter dropped her at Bharuch railway station with a chit with a telephone number written on it. He left with a promise to return soon. This was what Neha had informed the police in his presence. It was only when he came to the Garudeshwar police station that he was made aware that his father left the Dharamshala with cash. He did not know the exact figure, but it was around Rs.50,000/. No cash was found from the body of his father. This witness was cross-examined. He agreed that the accused was his father's friend and was also addressed as Joshi uncle. It was his brother's friend Vikas who along with Bharuch police, fetched Neha from Bharuch and brought her to the Bharuch police station.13. PW-20, Chetan Jayendrabhai Dave, the brother of Bhushan was examined at Exh.51. He stated that he was working at Mahindra and Mahindra Company as a manager at Patan. His sister Neha was married with Dhirendra at Sarkhej. She had subsequently separated and was at an Ashram of the mentally challenged. His father and sister Neha had shifted to Ahmedabad with him after his father closed down his business at Himmatnagar. It was in the year 2011 that through his friend Vasubhai Natvarlal Raval his father could procure a job at the Ambaji Dharamshala as manager. His father left in August, 2011, to take up the job at Ambaji. They used to regularly keep in touch over the telephone. Sister Neha was at Modasa.14. Ramanbhai, the trustee at the Ambaji Prajapati Dharamshala had called him on 05.11.2011 informing him that his father and sister had left about 10 days back and had not returned. He therefore tried to call up his father, but the mobile was switched off. Repeated calls were made, but he was not successful in getting through. On 07.11.2011, his father called up and informed him that he had undergone cataract surgery and was now going to Virpur temple and would reach Ambaji in two to three days. The number from which his father called was not his mobile number. On 10.11.2011, he tried to call up the Ambaji Dharamshala, but nobody answered from the other side. It is after sometime, that he could connect on the number that he called and it was a number of some box of STD booth.15. On 15.11.2011, when he was at his office, he received a call from his wife Shivani that the police at Himmatnagar would like to speak to him. Through the Himmatnagar police, he spoke to the police authority at Garudeshwar, when he was informed that his father had met with an accident and therefore, he must come to Garudeshwar immediately. On receiving such information, he called his friend Vikas who was staying at Garudeshwar to reach the police station. He left from Patan to Ahmedabad and then Garudeshwar where he reached at about 5 in the evening. When he was on his way to Garudeshwar in the evening, he received a phone call on his mobile. The caller on the other side was Neha, informing him that she was standing outside a garden and he must come to collect her. His wife Shivani spoke to Neha and requested her that the phone may be handed over to someone around so that they can get the exact location. Neha informed his wife that her father had died. When they tried to call on the number, the phone was switched off. They reached Garudeshwar at 10 in the night and the police recorded their statement. On 16.11.2011, after the hospital handed over the body of their father, they performed the last rites at Garudeshwar. That evening, at around 6 to 6:30, he received a call on his mobile and the caller informed him and stated that he was speaking from the Ankleshwar railway station and he further informed him that Neha was standing by his side. Garudeshwar police was therefore informed, they brought Neha to the police station. Vikas his friend had gone with the police to fetch Neha. After a lot of persuasion, Neha told the police that on the fateful day in the morning when she was returning after a bath, she saw Vishnukaka strangulating her father. She saw the incident from the window that was open. Chetan, in his testimony stated that Vishnukaka was the same gentleman who was present in the Court and was also known as Vishnukaka. This witness further stated that he had come to their house during Diwali and performed some religious pujas. He had stayed over the night and performed the 'Puja' and left on the next day. Chetanbhai was cross-examined. He agreed to the suggestion that his father knew Vishnukaka for past several years and he denied the suggestion that he had not known the accused earlier.16. Vikas, Chetanbhai's friend was examined as PW13. According to this Witness Chetan was staying separately and so was Bhushan, Chetan's brother. Their sister Neha was married, but had later separated and was at Modasa Ashram for the mentally challenged. Their father was serving as a manager at the Ambaji Dharamshala. On 29.10.2011, he received a call from Chetan inquiring about his father as he had left Ambaji and had not returned. This witness further stated that he received a call from Chetan's father He wanted Chetan's number as he wanted to contact him. He said he had lost his mobile. On 15.11.2011, when he was at his home, Chetan had called and asked him to leave for Garudeshwar police station. He along with his friend Vijay reached Garudeshwar. They were taken to the guesthouse, where they were shown a deadbody They identified the deadbody as his father Jayendra's. Chetan with other relatives reached the guesthouse at 9 at night. The whereabouts of Neha were not known. The next day i.e. on 16.11.2011, Chetan received a call from a rickshaw driver at Ankleshwar, informing Chetan that his sister was sitting there. She did not specify the location. Rickshawwala then informed that they were at Anklewshwar railway station and Neha had a chit in her hand with the telephone number written on it. He therefore along with Garudeshwar police, went to Ankleshwar railway station to fetch Neha. He specifically asked Neha about her father. Nehaben told him that her father was dead. When asked her as to how this had happened, she told the friend that her father was strangulated by a rope, by his friend. At that point of time, he named the friend as Rajubhai. Neha was brought to Garudeshwar where she told the police about the religious puja that the father's friend used to carry out at which point of time, Vikas had remembered that he had seen the gentleman at Chetan's place and remembered Chetan talking about him. He was known as Joshi uncle. Vikas was cross examined. He agreed that it was on 16.11.2011 when a call was received on Chetan's mobile and he went to Ankleshwar with the police of Garudeshwar police station to fetch Neha.17. Neha has been examined as PW7, Exh.31. Before recording her testimony, the learned Judge has specifically put a note that he has ascertained the competence of the witness and on such confirmation, it was found that the witness, on oath understands the question put to her and testifies and is competent to do so. The testimony of this witness was taken incamera. On being questioned she gave her name as Neha. Her father's name was Jayendrabhai Brahman. She was staying with her elder brother at Chandkheda. Her father was dead. When he was alive, she along with her father and her younger brother Bhushan all stayed together. That her grandfather's name was Devduttray. She was sent to a school at Nirnaynagar for studies. She further stated that she had two brothers. She named them as Chetan and Bhushan. She was the only sister. She stated that her mother Daxaben had passed away. On seeing the accused in the Court, she identified the accused as her father's friend and the one who had killed her father. She could not name him but she further stated that he was known as Joshikaka, whom she had met at Ambaji. This witness further stated that it was Joshikaka who had come to fetch her from her school at Nirnaynagar and was taken to Ambaji. She was forcibly taken to Ambaji though she refused. Her father was staying at Ambaji and Joshikaka had come to Nirnaynagar with a promise that she would be taken to various place like Vadodara, Surat, Ambaji etc. She along with her father was taken to the Garudeshwar guesthouse. That, her father died as a result of being strangulated by a rope at the hands of Joshikaka. The incident happened at night. She further stated that she had seen Joshikaka pressing her father's neck with a rope when he was lying on the bed inside the room. After the act, Joshi uncle, specifically asked her to recite the 'Mantras'. There were no signs or movements from the father. She started crying. Joshikaka with her in company left the guesthouse and had gone to Ahmedabad, Surat, Bombay and then Bharuch. She was dropped at the railway station. When they were at Garudeshwar, her father had a bag and she also had one. She did not know the exact amount of cash that her father was carrying. After strangulating her father with the rope, Joshikaka locked the room from outside and then had left for railway station. Joshikaka left her at the station with a chit in her hand and a telephone number written on it. She was told to call up her brother. She called Vikasbhai. Vikas had brought her to Garudeshwar.In her cross-examination, she had admitted that she had come to the Court for the first time. She agreed and admitted that it was Joshikaka who had taken her from Ambaji to school and then from Ambaji to Surat. When she saw Joshikaka strangulating her father, she did not react or shout. She admitted that an advocate had tutored her that she should specifically answer in the positive if asked as to whether Joshikaka had killed her father.18. PW18, Gunvantbhai Patel, examined at Exh.47, was the Principal of the Sahyog Trust at Himmatnagar. This witness stated that on 30.07.2009, one Jayendra Devduttray Dave had brought his daughter at the school. The father would come and collect the daughter during the holidays.On 22.10.2011, he received a call from Jayendra Devduttray Dave informing him that since he had no time to come and fetch Neha, somebody would come and fetch Neha. On that date i.e. on 22.10.2011, somebody had come to pick up Neha. When the police came to record his statement he identified the accused as the person who had picked up Neha on 22.10.2011. He identified the accused who was present in the Court.In his cross-examination, he admitted that he did not ask for the details of the person who had come to fetch Neha on 22.10.2011. Neha's personal details are produced by way of the form which is at Exh.48.19. Ramanbhai Somabhai Prajapati, PW15 was examined at Exh.39. He was the trustee of the Ambaji Prajapati guesthouse, where, the deceased was serving as a manager. Jayendrabhai was employed as a manager of the trust from 11.08.2011. Jayendrabhai as a manager, was the custodian of the cash that the trust received and he would keep the cash with him and give account periodically. On 11.09.2011, when he along with one of the trustees came to the Ambaji trust, he saw Jayendrabhai in the room staying with another person and when asked, Jayendrabhai introduced the other occupant as his friend named Vishnubhai. When questioned as to how long this person will stay, he was specifically told that he would leave the room in three to four days.20. On 28.10.2011, when he came to Ambaji, he saw a lady with Jayendrabhai and when asked about her, he introduced her as his daughter Neha. Jayendrabhai also told the trustee that his daughter Neha was mentally challenged. On 31.10.2011, he received a call from Jayendra that he wanted leave from 31.10.2011 for three to four days to undergo a cataract surgery. He was specifically asked to hand over the charge to Rambhai with the cash. Jayendrabhai had left the Prajapati Trust on 31.10.2011,without handing over cash.21. On 11.11.2011, on account of a function when he came to the Prajapati guest house, he called up Jayendrabhai on his mobile number 7698489884, but the mobile was switched off. On examining the accounts of the office, he noticed that there was a shortfall of cash of Rs.71,801/and that Jayendrabhai had left the institution with this cash. He received a call on 15.11.2011 from somebody who asked the details of the Ambaji trust. He informed the caller that Jayendrabhai had left the trust on 31.10.2011 and never returned. Garudeshwar police then informed that Jayendrabhai was found dead in the guesthouse.The police had come to said place on 22.11.2011 to record his statement. This witness further stated that the accused who was present in the Court was Vishnubhai, the same person who he had seen with Jayendrabhai at Prajapati Dharamshala. When he was brought with the police also on 22.11.2011, he identified the accused Vishnubhai as the friend whom Jayendrabhai had referred to.This witness was cross-examined. He agreed to a suggestion that he has not seen Jayendrabhai together with the accused on 31.10.2011 and that he has not lodged any police complaint on account of the missing cash.22. PW14, Ramabhai Prajapati was the sweeper employed at the Prajapati trust. This witness in his testimony states that Jayendrabhai had joined the trust on 11.08.2011 as Manager and was staying at the room behind the office counter. He was staying with a friend named Vishnubhai. Both were staying together. Jayendrabhai's daughter was mentally challenged and who was otherwise at Modasa had come over during the Diwali break. Jayendrabhai was the custodian of the cash that the guests would give as room rents or deposits. He was also incharge of the accounts. Vishnubhai had left the room as the trustees had specifically asked him to vacate. Vishnubhai had left the day previous to the new year. Jayendrabhai had left the office on 31.10.2011 on account of the fact that he wanted to undergo a cataract surgery. He returned briefly on 02.11.2011 to return the bill books. On 11.11.2011, when trustees came for a function and they took the bill book, they found a shortfall of cash. On 24.11.2011, the police had brought one person to the trust office and he identified him as Vishnukaka who was staying with Jayendrabhai in the room. Police had informed him that Vishnukaka was responsible for the death of Jayendrabhai. Jayendrabhai was strangulated with a nylon rope. The witness was cross-examined, however, nothing substantial has come out in the cross-examination.23. PW16 is Harshadbhai Kalishankar Pandya. He was running a Jalaram Seva Mandal Trust and old age home at Bharuch. This witness stated that the police had come over on 17.11.2011 to inquire about Jayendrabhai. They had examined the records. This witness stated that Jayendrabhai had briefly stayed at old age home for the period from 06.08.2011 to 31.10.2011 Jayendrabhai had stayed in the company of the gentleman who was brought by the police whom this witness has identified as Jayesh Ambalal.24. Dharmesh Ramanbhai Patel, PW17, examined at Exh.45, was a clerk working at the Tirth Seva Samaj guesthouse at village:Kayavaran, Dabhoi. This witness stated that he was working at the guesthouse and would check the list of the guests after checking the I.D. Proof. On 20.11.2011, the police had inquired regarding Jyotindrabhai Joshi and Jayendra Devduttray. The register of the institute was shown to the police. On the basis of the register, it was noticed that Jayendrabhai together with a lady aged about 30 years and one old gentleman had stayed from 7 pm of 09.11.2011 to 10.11.2011. They left in the early hours of 11.11.2011. Jayendrabhai had signed the register in his own handwriting. This witness also produced the entry of the register at Exh.45. The register shows the name of the deceased Jayendra Devduttray Dave against room no.7 and also shows the figure two as the additional number of occupants of the room.25. PW10, Dharmeshbhai was working at a shop owned by Pratik Dwarkadas, a grocery shop at Garudeshwar. He could not identify the accused who was present in the Court. When shown the nylon rope, article 10, he identified that this was the rope which was purchased from his shop. The police had brought the accused to the shop and he however, was not in a position to identify him. His statement was recorded on 20.11.2011, wherein, he has stated that he could not identify the customer who had come to purchase the nylon rope. It was on 12.11.2011 at around 5 in the evening that this gentleman arrived at a shop asking for a rope to dry his clothes. When shown a cotton rope, he insisted that he must be given a nylon rope. It was then that a green coloured nylon rope was handed over. This witness when cross-examined, denied a suggestion that accused had come to the shop.26. PW11, Pratikkumar Dwarkadas was the owner of the shop at Garudeshwar. In his testimony, he stated that when the police had come to his shop with the accused, he identified the person as a customer who had come to purchase the nylon rope. His employee had given him the rope. The customer had handed over a 50 rupee note and in turn, had given Rs.35/back as the price of the rope was Rs.15/. He was, at that point of time, identified as Joshikaka. When shown the muddamal article rope, he identifies the same.In his cross-examination, he further stated that when the customer had come, his employee Dharmesh was present in the shop and the customer had stayed in the shop for about 5 to 7 minutes.27. Shaileshkumar Ishwarbhai Bhil, PW1, is the doctor who carried out the postmortem on the body of the deceased Jayendrabhai. In the examination of the body, he found that all the injuries were antemortem and the external injuries were as narrated in the postmortem report Exh.11, which are as under:Male Age approx aged 65 years approx H/MBrown - black pantWhite BanyanBlood stained banyanLigature mark transverse completely encircling the neckLighter mark (1 m.m. dia approx) made up of Nylon around the neck (encircling the whole neck)Thyroid cartilage brokenEchyonosis under the ligature markAbrasion during course of ligature markBlisturs prefach over the trunk & chest of the bodySkin Black brown colouredFace eyantgedFair built edgedPenis eracted.NILThyroid cartilage brokenAbout 48 hrs - 60 hrs from the P.M.NILThyroid cartilage brokenYes antemortermThe cause of death according to the doctor was due to an attack leading to cardio respiratory failure. In the examination-in-chief, the doctor opined that the death occurred due to strangulation. This was caused as a result of being so strangulated with the rope which resulted into fracture of thyroid cartilage bone. Nothing substantial comes out from the cross-examination of the witness.28. In addition to the oral evidence which has come on record, the prosecution has brought evidence to support the charge by way of Panchnama Exh.19 which has been proved through the testimony of PW3, Arvind Vitthalbhai Tadvi. Exh.19, the panchnama reveals that room no.8 was occupied by the deceased Jayendra on 12.11.2011. The panchnama further indicates that at column No.6, the number of the occupants of room were shown as three.29. Exh.22, the discovery panchnama was also proved through the prosecution witnesses. The Panchnama indicates that the accused led the police party from the road to Hansot. He led the police party to the milestone of Dandi where from the hollow trunk of a tree, a sim card was discovered. The sim card was of the mobile no. 76984 89884.30. Exh.25 is the recovery panchnama. This panchnama records that from the purse of the accused a cash amount of Rs.14,653/and Rs.40,000/was recovered. In all it was an amount of Rs.55,000/recovered from the possession of the accused.31. As recorded earlier, entry registered at Exh.45 has been produced through the testimony of witness PW17, which showed that from 09.11.2011 to 10.11.2011, the deceased Jayendrabhai had stayed at the Kayavaran Tirth Seva Samaj with two other occupants in the room. Serological report at Exh.15 are the articles which have been recovered from the scene of the offence. Through that, the blood group of the deceased was AB which was found in the clothes of the deceased. The articles in the room including the nylon rope also had blood group AB.32. It is based on this evidence that the accused has been convicted for the offences under section 302 read with sections 397, 201 and 366 of the Indian Penal Code.33. Independent assessment at our hands needs to be done so as to establish whether the offences for which the accused has been charged for have been proved. The prosecution case essentially rests on circumstantial evidence on the basis of 'last seen together theory' and also on the testimony of PW7, the daughter Neha, an eyewitness to the incident and,as per the prosecution, the only witness to substantiate the "last seen together" theory.34. The circumstances that the prosecution would show against the accused are as under:(A) That, the testimonies of the First Informant, Harishbhai and that of Maganbhai and Bakulbhai established with support of the Panchnama Exh.19 that Room No.8 of Garudeshwar Guest House was occupied by three guests from 12/11/2011 to 13/11/2011.(B) That the accused and the deceased were long standing friends. Their proximity took them together not only at the time when the incident occurred but also when the deceased was employed at Ambaji. Daughter Neha also had been with the two of them.(C) The motive behind the crime was to decamp with the cash amount Jayendrabhai was carrying. The Recovery of the cash from the accused when arrested.(D) Neha, the daughter, had seen the accused, in the room no.8 of the guest house, strangulating her father. That they had come to the guest house together and the evidence of being together is established from the testimony of the testimony of PW 13 Dharmesh the clerk of the Kahyavaran Gust House.(E) The rope used for commission of the act was purchased from a Grocery Shop in Garudeshwar on 12/11/2011.(F) Discovery of the mobile sim card of the deceased,at the instance of the accused was an additional incriminating factor.(G) The accused leaving Neha alone after the incident, with a chit and a telephone number of a relative written on it.Let us take each circumstance at a time and assess the evidence which has come on record.I. Taking circumstance (A) first:(a). PW6, Exh.29, was the first informant Harishchandra Purshottam Navre who lodged the FIR at Exh.30.He was a clerk at the Garudeshwar guest house. According to him on 15.11.2011, when informed by a guest who was leaving, that room no.8 was locked from outside and a foul smell was emanating therefrom, room no.8 was opened .They found the body lying on the cot and covered with a quilt and a nylon rope tied around the neck. Inquiries were made to establish the identity of the dead body. This witness further stated that Maganbhai was incharge of making/recording entries of guests' details in the register.(b). Maganbhai was examined as PW9 at Exh. 33. The testimony of this witness reveals that when he was together with the manager Bakul on 12.11.2011, at 4:30 in the evening, a guest had come to the office who introduced himself as Jayendra Devduttray Dave. According to this witness, he was the same person who on the earlier occasion i.e. on 06.11.2011 in the company of another old gentleman had occupied Room No.4. Room no.8 on 12.11.2011 was alloted to them. Jayendra Devduttray Dave filled in the details in the register in his own handwriting. The entry in the register specifically indicated that the number of the occupants in the room was three.(c). PW8, Bakulbhai was the manager of the Garudeshwar guesthouse. He also in his examination in chief states that while sitting in the office on 12.11.2011 in the evening with Maganbhai Desai, a man in the age group of 65 to 70 years asked for a room. Room no.8 was alloted. He requested that the allotment be made for two days. Bakulbhai said he also saw a lady aged about 30 to 40 accompany the guest. The lady was sitting outside on the bench. He identified Neha who was present in the Court as the same lady who had accompanied Jayendrabhai on that day. This witness further stated that the next day when the sweeper Somabhai went to room no.8, he found the room locked from outside. He presumed that like the other guests, the guests had gone to Nareshwar, locked the room and had taken the keys with them. It also comes out from the testimony of this witness that in all, there were three persons who had occupied the room on 12.11.2011.At this stage therefore, if the evidence of these three witnesses together with the entry register which is produced through the Panchnama at Exh.19 is seen, what is established is that from the 12.11.2011 evening, room no.8 was alloted to deceased Jayendra Devduttray Dave. That Neha, PW7, was the second occupant.(d). The register entry, produced through Exh.19 Panchnama shows that the room was registered for three guests.II. Coming to circumstance (B).(a). The sons of the deceased Jayendrabhai, Bhushan and Chetan have been examined as PW12 and PW20 respectively. Chetan's friend Vikas has also been examined as PW13. Son Bhushan in his testimony states that Nehaben who earlier married, separated from her husband Dhiren. That his father was initially engaged in the business of diesel engine, however, as he was not successful in the business, the business was shut down, they came back and shifted to Ahmedabad. Neha was shifted to an Ashram at Modasa. Neha would stay with her father during the Diwali vacation. His father had secured a job at Prajapati Dharamshala in August, 2011. He would speak to his father periodically on an interval of five to six days. On 27.10.2011 his father had called up from mobile no.7698489884. His father had informed him that on 06.11.2011 he would go and drop Neha back at Modasa ashram.In his cross-examination, this witness stated that the accused was known to the family much earlier, that he was a friend of his father and was also called Joshi uncle.(b). The elder brother Chetan who was examined as PW20, Exh. 51 also testifies that Neha was earlier married to one Dhiren, separated and then stayed with her father. That he had received a call on 05.11.2011 from Ramanbhai, the trustee of Ambaji Dharamshala that his father had not returned to Ambaji after leaving on 30/10/2011. He received a call on 07.11.2011 in the morning from his father informing that he had undergone a cataract surgery and was now going to Virpur. He would be returning to Ambaji Dharamshala in a day or two. When he tried to call back on the same number, he found that the number was of some STD-PCO.Bhushan and Chetan are sons of Jayendra. Vikas was a friend of Chetan and therefore aware of the family's pursuits. The evidence regarding the past proximity of the accused with the deceased and how the two were in the company of each other unfolds from the narrative of these witnesses. What comes forth from the evidence of these witnesses is:(i). That Neha, their sister was staying at Modasa. She was earlier married to Dhirendra. Apparently they had separated and Neha had returned to her parental home.(ii). Father Jayendra had secured a job in August, 2011 at Ambaji Prajapati Dharamshala. Bhushan used to periodically receive calls from his father Jayendrabhai. The calls were received from the mobile no.7698489884.(iii). Neha joined her father from 20.10.2011 to 22.10.2011. Bhushan had received a call from his father that Neha was with him and that he would come back to Modasa Ashram on 06.11.2011.(iv). Chetan had stated that on 05.11.2011, he received the call from Ramanbhai, the trustee of Ambaji trust that his father had not returned after having left on 20.10.2011. When Chetan called on his father's mobile number, he found that the mobile was switched off. Chetan then received a call on 07.11.2011 from his father. The call was from an unknown number. When he tried to return the call on 10.11.2011, he found that the number was of STD booth.The versions of these witnesses when read in cohesion bring out that Joshi Kaka was also known as Vishnukaka and he was also a frequent visitor. Chetan stated that Joshikaka/Vishnukaka had come to his home one night and performed some religious ceremony.Chetan's evidence also reveals that after having left Ambaji on 30/10/2011, his father, had called on 7/11/2011 informing his that he had undergone the cataract surgery and was now proceeding to Virpur. When this is seen in light of the evidence of Ramanbhai the trustee of Ambaji, the corroborative stands complete as he in his evidence stated that the deceased had left Ambaji on 30/10/2011. He had called the deceased on his mobile on 5/11/2011 but the mobile was switched off and that he had still not returned till 11/11/2011 to the Dharmashala.III. Circumstance (C). Motive is to be seen in light of the evidence of Ramanbhai the trustee of the Trust PW 15 and PW 14 Rambhai.(a). The Trustee of the Ambaji Trust, Ramanbhai. PW.15 in his evidence informs that after having left Ambaji on 30/10/2011, Jayendrabhai did not return. He was in charge of accounts and cash of Rs.71,000/was missing. Rambhai PW14 of the Ambaji Dharmashala stated that Jayendrabhai did return on 2/11/2011 and went back after handing back the Bill Books etc. On 11/11/2011 when the Trustees gathered for a meeting bank details showed that cash was missing. Through Exh.25 cash amount of Rs.55,000/is recovered from the accused when arrested. All these go to prove that the accused had a strong motive to commit the loot of the cash amount that the deceased had when he left Ambaji.When testimonies of these witnesses viz. PW20 Chetan, PW12 Bhushan and PW13 and that of Rambhai are examined in light of the testimony of PW17 Dharmesh who was a clerk at the Kayavaran Tirth Seva Samaj, the link further gets established to show that Jayendrabhai was in the company of the accused from 9th of November till the early morning of 11th November when he left.(IV). Circumstance (D) is a circumstance where Neha's testimony when read together with those of other witnesses particularly PW 13 Dharmesh and PW 18 Gunavanbhai link the movements of the three, deceased, herself and accused together immediately prior to the stint at the Garudeshwar Guest House. In addition to being an eye witness whose testimony needs to be carefully assessed,support from the version of PW 13 Dharmesh make her testimony reliable.35. It is in these circumstances that now the testimony of PW7 Neha needs to be appreciated. Brothers Bhushan and Chetan have been examined as PW12 and PW20 respectively and so also Gunvantbhai, the Principal of the Modasa trust and their versions have indicated that Neha was mentally challenged and that she had separated after being married and was staying with them. It is in light of this that the learned Trial Judge in the preface while recording the evidence of PW7 Neha ascertained the competence of the witness in accordance with the provisions of Section 118 of the Evidence Act.36. According to Section 118 of the Indian Evidence Act, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind or any other cause of the same kind. The explanation to the section further provides that lunatic was not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers. It is therefore apparent from reading of prephase of testimonies that the learned Judge has ascertained the competence of Neha to see whether she is in a position to understand the questions that were put to her.37. As required under Section 118 of the Indian Evidence Act, the only test that is required to be undertaken that the witness has sufficient intelligence to depose or appreciate the questions that are put to her and whether he or she can appreciate the duty of speaking the truth. Once it is established that a witness is competent to testify notwithstanding with the mental or moral capacity, if he or she can understand the question put to him/her and is in a position to give rational answers which show maturity of mind. Mere mental incapacity would not render such a witness incompetent to testify herself before the Court.38. In case of Sataji Nathaji & Others v. State of Gujarat, reported in 1976 (17) GLR 254, the Division Bench of this Court held as under:"33. In this connection, reference may be made to section 118 of the evidence Act, 1872 and section 4 of the oaths Act, 1969. The question of competency is dealt with in section 118 under which every witness is competent to testify unless the court considers that he is prevented from understanding the questions put to him, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. It will be observed that under this section there is always competency in fact unless the court considers otherwise on account of one or the other ground given therein (see Rameshwar Kalyan Singh v. State of Rajasthan A.I.R.. 1952 S.C. 54). In other words, competency of a witness is the rule and incompetency is an exception which must rest on the stated grounds. It is needless to state that incompetency goes to the root and affects admissibility of the evidence. Section 4 deals with oaths and inter alia provides that oath shall be made by all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or any person having by law or consent of parties authority to examine such persons or to receive evidence. There is a proviso to the said section which says that where the witness is a child under twelve years of age and the court or person having authority to examine such witness is of the opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the provisions of the said section and those of section 5 shall not apply to such witness. However, in any such case, the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Section 7 of the oaths Act is also material and it provides that no omission, to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. The net effect of these two sections is that oath must be administered to every witness unless the court is of the opinion, in case of a child tinder twelve years of age, that he does not understand the nature of oath. However, in case of such a child, the omission to take oath will not affect the admissibility of his evidence and such evidence might be Acted upon if the court is of the opinion that he understands the duty to speak the truth. Even if there is failure on the part of the court to formally record the requisite opinion, it would be merely an irregularity curable under section 7 and might not in all cases affect the evidence.34. It would thus appear that there is no legal requirement to hold a preliminary examination to determine the competence of a child witness and that the failure to conduct such examination will not necessarily affect his evidence. Similarly, though it is the duty of the court to form an opinion whether such a witness understands the sanctity of oath and the duty to speak the truth, failure on the part of the court to formally record such an opinion may not by itself be fatal. It is also true that it is not to be lightly supposed that any judge would accept as a witness a person who he considered was incompetent or incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness. However, in a series of decisions it has been laid down time and again over years as a rule of prudence that not only it is desirable that a preliminary examination of a child witness should be made by the court but that a formal record of such examination should also be maintained. In the case of a criminal prosecution, where the fate of the accused depends on the testimony of such a witness, the imperative necessity of voir dire has been underlined with greater emphasis for obvious reasons. It may be that the incompetence of such a witness to depose to the res gestae or his ignorance about the duty to speak truth may often come out during the examination of the witness. However, it is always desirable to resort to a preliminary examination which will tend to disclose his capacity and intelligence, for, such an examination may expose even a witness who has been fully tutored and who on that account might be able to stand the test of cross examination. Besides, if Actual examination is preceded by appropriate questions much of the time may be saved in many cases where it ultimately transpires that the witness lacks the requisite capacity and comprehension. The record of such preliminary examination, if maintained, will enable the appellate court, which does not have the opportunity to watch the demeanour of the witness, to apply its own mind and to review the decision of the trial court judge, if need arises, on these matters. It is for these reasons that voir dire and the maintenance of its formal record have been accepted as an established rule of practise in our Courts."39. Therefore what the section prescribes is that there is always the competence to testify unless the Court considers otherwise on the grounds given therein. Competence of a witness is a rule and incompetence is an exception which must rest on the grounds stated. The Court further held in reference to the Indian Oaths' Act that occurrence with the section 4 of the Oaths Act which the Court shall be administered or witnessed and such persons who may lawfully be examined, or give, or be required to give evidence by or before the Court relying on the judgment of the Supreme Court in case of Rameshwar S/o Kalyan Singh v. The State of Rajasthan, reported in AIR 1952 SC 54, wherein it was held that an omission to administer, an oath, even to an adult, goes only to the credibility of the witness and not his competency. The oaths are not to be dealt with the competency of witness. In this judgement, the Court held and observed as under:"10. I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privyi Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King A.I.R. 1946 P.C. 3 at 5"Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect......... It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above."The decisions to which their Lordships refer are and Ram Samujh v. Emperor. The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions applies here because, as their Lordships observe, the section is unqualified in its terms.11. I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evidence is admissible. In (1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337 383 the Privy Council case which I have just cited, their Lordships said"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."40. In case of Prakash alias Ajayan & etc. v. State of Kerala, reported in 2009 CRI. L.J. 2930, the Kerala High Court has considered the case held that the requirement under section 118 of the Evidence Act is to see whether the incapacity of the witness is such that the disease whether of body or mind would prevent the witness from understanding the questions put to him and from giving rational answers to those questions. To a contention, in the facts of the case, that Epilepsy would not make the witness to testify, the High Court held that merely because witness was suffering from Epilepsy, by itself, would not make the witness incompetent once it is found that the witness had clear sense of understanding the question put to him, such person would not become incapable of testifying before the Court. In this judgement, the Court held and observed as under:"33. Section 118 of the Indian Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. The Explanation to Section 118 states that a lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them The requirement of Section 118 is that the disease, whether of body or mind, must be such as would prevent the witness from understanding the questions put to him and from giving rational answers to those questions. Epilepsy does not always make a person incompetent to testify; nor does it prevent him from understanding the questions put to him or from giving rational answers to those questions. Even assuming that the approver was suffering from epilepsy, that by itself is not a ground to reject his evidence."41. In case of Dattu Ramrao Sakhare and Others v. State of Maharashtra, reported in (1997) 5 SCC 341, considering the question of a testimony given by a child witness, the Supreme Court observed that if such a witness is found competent to depose to the facts and his version is reliable, conviction could be the basis of such evidence. The Supreme Court in that case observed that even in absence of oath the evidence of child witness can be considered under section 118 of the Act provided that such a witness is able to understand the question and able to give rational answers thereof. In this judgement, the Court held and observed as under:"5. The entire prosecution case rested upon the evidence of Sarubai (P.W.2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the evidence Act provided that such witness is able to understand the question and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no practise that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai(P.W.2).42. The Division Bench of this Court in case of Dharamsinh @ Dhama Devbhai Koli v. State of Gujarat, reported in 2004 (1) G.L.H. 613 while considering the case of evidence being given by the child witness, observed that in the event the testimony of child witness is found to be believable and the witness is in position to answer questions, on the assessment of evidence of child witness once it is found that the evidence is credible and reliable and when on a careful scrutiny of such an evidence, it is found that such a witness is not prevented from understanding the questions put to it, such questions can be considered for recording conviction. In this judgement, the Court held and observed as under:"17. It may be stated that age of child witness Ranjan was 12 and the age of child witness Shailesh was 15 at the time of their deposition. Indian Evidence Act 1872 does not prescribe any particular age as determinative factor to treat the witness to be competent one. On the contrary Section 118 of the Evidence Act envisaged that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions because of tender age or any other cause of the same kind. The child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answer there to. In case of Surya Narayana v. State of Karnataka, reported in JT 2001 (1) SC 230 the Hon'ble Supreme Court held that the evidence of child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction based thereon.In Dattu Ramrao Sakhare v. State of Maharashtra, reported in JT 1997 (5) SC 370 the Hon'ble Supreme Court held that the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.18. Considering all the above decisions of the Hon'ble Supreme Court in Ratan Singhs case the Hon'ble Supreme Court held that though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily shock and moulded but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it there is no obstacle in the way of accepting the evidence of a child witness. "43. In case of State of Uttar Pradesh v. Krishna Master, and others, reported in (2010) 12 SCC 324, the Supreme Court while considering the principle of appreciation of evidence of a child witness, observed that when reading the evidence of a child witness, While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. It further observed that it would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future.44. Keeping these principles of law in mind Neha's version inspires confidence. She has the competence to testify as she understands the questions put to her and answer them. Neha in her evidence clearly recollects the fact that she was earlier staying at Chandkheda with her brother. That, both she and her father were staying with her brother Bhushan. At her grandfather's name was Devduttray. That she was studying at Nirnaynagar and her elder brother's name was Chetan. She further recollects that her mother Daxaben has passed away. It is further borne out from her testimony that she identified the accused in the Court and stated that he was her father's friend. She did not know his name, but he was normally called Joshikaka. That she had met Joshikaka at Ambaji. He had brought her to Ambaji from Nirnaynagar school as is evident from testimony of Gunvantbhai, the Principal of Modasa Institute. She also confirms by way of testimony that her father had called up the school at Modasa and told her that it will be Joshikaka who will be collecting her. Both she and Joshikaka then went to Ambaji and stayed with her father. She further narrates in clear and unequivocal terms the incident of 12th as it unfolded and says that it was Joshikaka who strangulated her father with a nylon rope. That she had seen the incident from the window of the room. She also recollects very clearly that after the incident, Joshikaka took her to Ahmedabad, Surat, Bombay and Bharuch thereafter left her at the railway station with a chit in her hand with a telephone number on it. He had called up on the mobile and Vikas had come to the railway station to get her.45. She has not disclosed any incapacity so as to show that she is unable to understand the questions put to her and from giving rational answers to the questions put to her. In fact, it is evident from her version that not only did she recollect the names of the family members and the fact that she was staying with her younger brother Bhushan earlier, she also clearly recollected the name of her mother who had passed away. Two additional factors give us confidence to rely on Neha's evidence. First is the impression of this witness recorded by the Trial Judge about this witness in the judgment. He has recorded that Neha was unusually slow but not to the extent that her version should be discarded totally. Before recording her evidence on oath, her mental maturity was ascertained by asking her general questions about her name and family background. Her deposition was recorded in camera so that she can give answers freely. Thus, learned Judge was of the opinion that the witness was competent to depose. Even in normal circumstances, we rely on the assessment of a witness by the Trial Judge since he has the opportunity to observe his/her demeanour. Assessment by the Trial Judge of a child witness or a mentally challenged witness would be extremely relevant. Second factor is that Neha was once married. This indicates that she was capable of following normal daily pursuits and was able to lead at least semi normal life. The fact that she was later on divorced is of no consequence. Neha's further narration therefore establishes that on 12.11.2011, she was present when the accused with a nylon rope strangulated her father. His has been said by the Supreme Court as a ring of the truth and therefore needs to be believed. Circumstance (B); (C) and (G) also gets substantiated against the accused through Neha's testimony.46. (V). Circumstance (E). Purchase of Rope on 12/11/2011 from a grocery shop at Garudsehwar.(a).PW10 and PW11, Dharmendrabhai and Pratikbhai are the employee and the owner of the shop who have in their testimonies, especially the owner has stated that it was on 12.11.2011 when the accused had come to their shop and purchased a nylon rope. He also recollects that the rope which costed Rs.15 was given to the accused, the accused had handed over a Rs.50/note and his employee Dharmendra had returned the remaining amount of Rs.35/. The grocery shop is in the main bazaar of Garudeshwar. He presence of the accused therefore on 12.11.2011 at Garudeshwar and the purchase of the nylon rope from the shop of PW11 Pratik and credence add to the credibility of Neha's version and also a strong incriminating factor to show that the accused was present at Garudeshwar on 12.11.2011.47. When all these circumstances are put together and seen in light to the evidence, a common thread runs through which establishes a sequence of events showing that after having left Ambaji on 30/10/2011 with the cash amount, deceased was in the company of the accused, who had picked up Neha from Modasa. All three had together stayed at Kahyavaran on 9th November and left on 11/11/2011. In the past at Ambaji all the three had stayed together. After leaving the Tirth Gust House at Kahyavaran the three checked in at Garudshewar. The witnesses of the Guest House and the Register Extract and Neha's version establish their presence together. They were therefore "last seen together" at Garudeshwar. Purchase of Rope on 12/11/2011 and recovery of cash together with the recovery of the mobile sim card, complete and link the circumstances to complete the chain.48. To summarize and conclude:A. Jayendrabhai, the deceased was well acquainted and a friend of the accused and he was fondly called as Joshikaka and Vishnukaka.B. Neha-deceased's daughter who was otherwise at the Modasa Ashram, was picked up by the accused on 22.10.2011 and taken to Ambaji, where she joined her father.C. From the testimony of the trusty of Ambaji trust, PW15, Ramanbhai, it is evident that Joshikaka, the accused as he was called, was at the Ambaji Dharamshala on 20.10.2011 with Neha. Ramanbhai's testimony indicates that thereafter he was asked to leave.D. The testimonies of Ramanbhai and Ramabhai PW15 and PW14 further indicates that even Jayendrabhai left the Ambaji Dharamshala on 30.10.2011 for undergoing a cataract surgery Hat he did not returned till 5th of November, was also testified by Ramanbhai which is confirmed even through Chetanbhai's version when he confirms of receiving a call from the trustee of Ambaji trust.E. On 07.11.2011, Chetan receives a call from unknown number when his father informs him that he was going to Virpur and will be back to Ambaji after few days. On 10th November when tried to make a call, the call did connect but, it was an STD booth.F. Dharmesh, PW17 of the Kayavaran guesthouse has in his version had stated that Exh.45 register also shows that from the 9th to the 11th, the deceased, the accused and Neha stayed at Kayavaran guesthouse and they left on 11th morning. With this chronological events that unfold are read with version of PW7, and that of PW10 and PW11 Pratik and Dharmesh, the shop owners and the employee at Garudeshwar from where the accused had bought a rope, the presence of the accused at the Garudeshwar guesthouse stands established.G. Supporting evidence in terms of the discovery Panchnama at Exh.22 indicates that the accused led the police party and a sim of the mobile no.7698489884 was recovered from a hollow trunk of a tree. That the mobile number of the deceased is established from the sons Chetan and Bhushan who has given this mobile number as that of their father. Ramanbhai, PW15, trustee of the Ambaji Trust also confirms that it was the deceased's mobile number whom he had tried calling when he found a shortfall of cash of Rs.71,000/.H. Motive for the commission of the crime also stands established in view of the Exh.25, recovery panchnama, through which, cash of an amount of Rs.55,000/approximately has been recovered from the accused. Serological report at Exh.15 also shows that the blood group of the deceased which was AB was found on the rope. That the rope was purchased by the accused from a shop at Garudeshwar on 12th November, links the establishment of the offence.49. The evidence on record therefore when linked together established the fact that the accused, a friend of the deceased was in his company on 12.11.2011 at Garudeshwar and carried out the act of strangulating the deceased with a nylon rope, which was even witnessed by Neha, PW7, whose evidence and competence to testify, has been established in accordance with Section 118 of the Indian Penal Code, collectively linking these together therefore, leave no room of doubt for us to hold that the accused has been guilty of the offences under sections 302 of Indian Penal Code.50. Learned advocate Mr. Molavi has relied upon the decision of the Supreme Court in the case of Vijay Thakur v. State of Himachal Pradesh, reported in 2014 (14) SCC 609 and in case of Krishnan v. State represented by Inspector of Police, reported in 2008 (2) G.L.H. 625. When these cases, cited at the bar, are examined, the convictions in these cases were solely based on circumstantial evidence. There was no eyewitness to this incident. In our opinion, the judgment cited by Mr. Maulvi have no application to the facts of the present case.51. Looking to the facts on hand, we have held that PW7 Neha who was an eyewitness to the incident and had seen her father being strangulated by a nylon rope. She had seen the entire episode from the window. Her competence to testify was established.52. Criminal appeal is dismissed. R & P to be transmitted to the Trial Court.
"2017 CrLJ 3375,"