ZAHOOR ALI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Zahoor Ali, appellant has been convicted for the offences punishable under Ss.363, 366 and 376 IPC and sentenced to 3 years' R. I, 5 years R. I. and to 10 years' R. I. respectively for these offences.

(2.) Kumari Chhoti is daughter of Majeed resident of Rampur Khatra Police Station Safdarganj district Barabanki. She was, according to the prosecution case, about 10 years old at the time of the incident. Her mother died a few years before the incident and her father was a patient of paralysis. She was, therefore, living with her brother-in-law (Bahnoi). She left the place of her brother-in-law a few days before the occurrence and came to Charbagh Railway Station Lucknow and there she was living on alms whatever she used to get by begging. Zahoor Ali appellant is a rickshaw puller. The case of the prosecution is that Zahoor Ali appellant met Kumari Chhoti at Charbagh Railway Station Lucknow a few days before 29-10-1984 and brought her to his house in Mohalla Mati Khan Sarai Thakurganj Lucknow. There he committed rape on her. Since Kumari Chhoti was suffering from liver ailment, he got her admitted in State Takmiui Tib Hospital Lucknow on 29-10-1984. Zahoor Ali described himself as father of Kumari Chhoti. She remained admitted in Hospital for a few days. She told other patients admitted there that Zahoor Ali is not her father but a rickshaw puller and has brought her from Charbagh Railway station, kept her at his house in Mohalla Mali Khan Sarai a few days, misbehaved with her there and when she fell ill, he got her admitted in the Hospital describing her as his daughter. This information was passed to the Senior Medical Officer of the aforesaid T. T. Hospital. He, therefore, detained Zahoor Ali appellant in the Hospital when he came to see her and sent her to the Police Station along with Zahoor Ali appellant on 10-11-1984. The first information report was also longed by him at Police Station Saadatganj Lucknow on 10-11-1984 at 7-00 p.m. on the basis of that report a case under Ss.363 and 366 IPC was registered against Zahoor Ali appellant. Since the alleged incident of kidnapping had taken place within the area of Police Station G. R. P. Charbagh Lucknow, the papers were, sent there along with Zahoor Ali appellant for investigation. These papers reached police station G. R. P. Charbagh Lucknow on 12-11-1984. S.I. Daya Ram Pushkar (P.W. 7) investigated the case. He interrogated the witnesses, inspected the place of incident, prepared site-plan and submitted charge-sheet against the appellant for the offences under Ss.363, 366 and 376 I.P.C.

(3.) Kumari Chhoti was sent to Dufferine Hospital Lucknow for medical examination. There she was examined by Dr. (Smt.) Uma Sahni (P.W. 1) on 19-11-1984 at 2.20 p.m. On external examination she found that breasts not developed; pubic and axillary hairs were not present and there were no marks of injury on her person. She further found that the hymen was old torn and healed anti vagina admitting one finger easily. She did not find any mark of injury on her vagina or around her. No spermatozoa etc. was found in vaginal smear. On X-ray the Epiphysis around elbow and knee joints were not found fused. Similarly Epiphysis of lower end of radius and ulna were also not found fused. On the basis of this data she came to the conclusion that the girl was about 10 to 13 years old and no definite opinion about the commission of rape on her could be given.