Decided on April 12,1979



A.N.SURTI - (1.) In the life of Gujarat particularly in North Gujarat a heinous offence was committed on August 27 28 1977 (which attracted considerable attention of the press and public as can be seen from the record of the case) wherein a young innocent boy untainted with worldly designs and deliberately selected as incapable of giving any mental or physical resistance to the offenders was kidnapped and mercilessly done to death the initial motive for the commission of the crime being that as accused No. 2 had no son was craving for the human flesh of his son and he was anxious to get a son and he could only get a son if he offered The tuft of hair of a young boy to KALKAMATA...a deity as advised by one Bava (or a so called Sadhu or a Saint). But at this very stage we may hasten to add that in course of the hearing of the appeal we times out of number did administer to ourselves the necessary warning bell or the required caution to see that the heinous nature of the crime or the attraction of the press or the public should not at all affect our dispassionate and detached approach to the whole case with an anxious desire to find out the real truth. We were also conscious to the fact that we should not be least led away by any sentimental or emotional considerations as the unfortunate old father of the victim has living six daughters and the seventh child namely a young son Tinu (aged about 4 years) was done to death without any fault of the family or the victim. With these words we will briefly mention a few relevant facts living rise to the present appeal.
(2.) The State of Gujarat was aggrieved by the impugned order of acquittal passed by the learned Sessions Judge Sabarkantha at Himatnagar in Sessions Case No. 52 of 1977 wherein the learned Sessions Judge acquitted the respondents accused for the alleged commission of the offences punishable under secs. 364 read with sec. 120-B 302 read with sec. 120-B and/or read with sec. 34 of the Indian Penal Code and also secs. 404 and sec. 97 of the Indian Penal Code.
(3.) It was the prosecution case that one Budhiprasad Shankerlal who was residing at Prantij District Sabarkantha had six daughters and the young son named Tinu. It was alleged by the prosecution that on August 27 1977 the young boy Tinu was kidnapped and murdered. The dead body of Tinu was found on 29th August 1977. It was alleged by the prosecution that accused No. 2 Chandrakant Chimanlal Desai had no child and therefore with a view to get a child as advised by some Bava (the so called Sadhu or a Saint) a tuft of hair of a young boy was required to be offered to the deity of Kalkamata. It was the prosecution case that with a view to achieve the said object accused No. 2 secured the services of accused No. 1 Subamiya Dosmohmed. It was further the prosecution case that at the relevant time accused No. 1 was already fondling Tinu who was the son of Budhiprasad Shankerlal. It may be stated at this stage that Budhiprasad was conducting a small Chavana or Sweet meat shop and accused No. 1 was coming at the said shop and was fondling Tinu for a considerable time. It was also alleged by the prosecution that accused No. 1 used to give Banana sweet drops etc. to Tinu and used to fondle him. The prosecution alleged that Tinu the victim of the incident was in the company of Budhiprasad Shankerlal till 4-00 or 4-30 p.m. on August 27 1977 It was the prosecution case that thereafter Tinu was suddenly missing. On that very day i.e. on 27th August 1977 accused No. 1 was last seen by witness Noorbibi Ibrahimbhai at about 7 p.m. It was the prosecution case that when Tinu was not seen on August 27 1977 by 9-30 p.m. or 10-00 p.m. a crowd of people had collected and the crowd caught hold of accused No. 1 and brought him before Budhiprasad the father of the victim. At that point of time Budhiprasad the father of the victim did not entertain any doubt that accused No. 1 was responsible for the alleged crime. It may be mentioned at this stage that accused No. 1 as a matter of fact told Budhiprasad that if he had any doubt he was prepared to be arrested. But Budhiprasad told the crowd that he had no doubt about accused No. 1 as the person having any hand in the commission of the alleged crime.;

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