DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2017-18

FINAL DRAFT

Indian Penal Code II

TITLE OF PROJECT-

Case Analysis:

Zahoor Ali v. State of UP

Submitted To: Submitted By:

Mr. Malay Pandey Ravisha Pushkar

Assistant Professor (Law) Semester IV

Dr. Ram Manohar Lohiya National Enrollment No. - 150101108

Law University, Lucknow. Section: B

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 ACKNOWLEDGEMENT
Learning is something that continues all throughout the life & it starts at the zest of the person
playing the role of the teacher who imparts his/her knowledge to you. It is under the guidance of
a teacher that a student grows & learns to expand his/her horizons. As a child, you acknowledged
everything you accomplished, and as you grow older and more sophisticated, you acknowledge
only major achievements. Such achievements can be reached to only with the kind showering of
the teacher’s help. And hence, the following endeavor is also attributed to my teacher, Mr. Malay
Pandey, Faculty, Law, who guided me through the path of this attainment.

Nothing can also demean the contribution of my family & friends in this journey & thus, moving
ahead without thanking them will only render the study less meaningful.

All ends well only when surroundings are constructive & people around are supportive. It
therefore becomes imperative to owe the gratitude towards all those in Dr. Ram Manohar Lohiya
National Law University, who made the study possible for me.

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 TABLE OF CONTENTS

1. Name of the Case

2. Citation of the Case
3. Composition of the Bench
4. Relevant Provisions
5. Facts of the Case
6. Judgment of the Case
7. Conclusion

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 NAME OF THE CASE

Zahoor Ali v. State of U.P

CITATION OF THE CASE

1989CriLJ1177

COMPOSITION OF THE BENCH

G.B. Singh, J.

RELEVANT PROVISIONS

Section 361 IPC: Kidnapping from Lawful guardianship

Section 363 IPC: Punishment for Kidnapping
Section 366 IPC: Kidnapping, Abducting or inducing woman to compel her marriage, etc.
Section 376 IPC: Punishment for Rape

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 FACTS OF THE CASE

Kumari Chhoti was the daughter of Majeed, a 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 of the incident and came to
Charbagh Railway Station, Lucknow and there she was living on alms whatever she used to get
by begging. Zahoor Ali, the appellant was a rickshaw puller. The case of the prosecution was
that Zahoor Ali appellant met Kumari Chhoti at Charbagh Railway Station, Lucknow and
brought her to his house in Mohalla Mali Khan Sarai Thakurganj, Lucknow. There he committed
rape on her. Since Kumari Chhoti was suffering from liver ailment, he got her admitted in State
Takmiul Tib Hospital Lucknow. Zahoor Ali described himself as father of Kumari Chhoti. She
remained admit in the hospital for a few days. She told other patients admitted there that Zahoor
Ali was not her father but a rickshaw puller and had brought her from Charbagh Railway station,
kept her at his house for 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 Hospital. He, therefore, detained Zahoor Ali in the Hospital
when he came to see her and sent her to the Police Station along with Zahoor Ali. The first
information report was also lodged by him at Police Station Saadatganj Lucknow on the basis of
that report a case under Sections 363 and 366 IPC was registered against Zahoor Ali. The case
was investigated into and a charge-sheet against the appellant for the offences under Sections
363, 366 and 376 IPC was prepared. Kumari Chhoti was sent to Dufferine Hospital, Lucknow
for medical examination. On the basis of the results of the medical examination it was proved
that the girl was about 10 to 13 years old and no definite opinion about the commission of rape
on her could be given,

Zahoor Ali’s statement was that Kumari Chhoti met him at the Charbagh Railway Station,
Lucknow. Since she was ill and hungry he gave her food and took her to the aforesaid T. T. C.
Hospital and got her admitted there. He admitted that he was a rickshaw puller and he took

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Kumari Chhoti to the Hospital on his rickshaw. He further disclosed that he took her to Hospital
on account of sympathy and he neither kidnapped nor raped her.

The Learned Additional Sessions Court Judge, who tried the case, believed the prosecution and
convicted and sentenced the appellant. Feeling dissatisfied with it he presented an appeal in the
High Court.

It was firstly argued by the learned Counsel for the appellant that there was no reliable evidence
of commission of rape by Zahoor Ali and he had been wrongly convicted for the offence
under Section 376 IPC. It had not been mentioned in the F. I. R. that the girl was raped by
Zahoor Ali at his house. In this connection the word 'Durveohar' was used in the first information
report. It may have amountd to ill-treatment or misbehavior but not the rape as she alleged
subsequently. Since there was no allegation of rape in the F.I.R. the case was registered
under Sections 363 and 366 I.P.C. against Zahoor Ali.

The next point argued by the learned Counsel for the appellant was that Zahoor Ali, appellant
neither kidnapped Kumari Chhoti from lawful guardianship nor did he kidnap or abduct her with
intent that she was to be forced or seduced to illicit intercourse. He further argued that his taking
of Kumari Chhoti to T.T.C. Hospital Lucknow and getting her admitted there for medical
treatment did not amount to offence under Section 363 or 366 IPC and he had been wrongly
convicted for these offences. For the offence of kidnapping from lawful guardianship it is
necessary that the minor should be taken or enticed away from lawful guardianship. In the
present case it was proved that Kumari Chhoti was induced to leave Charbagh. From this it
follows that she was not enticed away as required under Section 361 I.P.C. The word 'taking'
used in the section does not require the use of force. But it is significant to note that in the F. I. R.
though words 'Pakar Kar' were used indicating use of force. It is now well settled that the word
'taking' used in Section 361 requires that the accused must have played an active role in the
minor leaving her lawful guardian's house or taking shelter in his house. Therefore mere passive
role in helping the girl in giving shelter in the house or accompanying her to Hospital for medical
treatment cannot amount to taking within the meaning of Section 361 I.P.C. The question
whether there has been 'taking' must be decided with reference to the circumstances of the case
including the question whether the girl was of sufficient maturity and intellectual capacity to

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think for herself and make up her own mind, the circumstances under which and the object for
which she felt it necessary or worthwhile to go with the accused. The statement of Kumari
Chhoti disclosed in her cross-examination that her mother died a few years back and her father
was a patient of paralysis. She further stated that though she had two brothers, she was sent to
live with her brother-in-law (Bahnoi) where she was grazing his she-buffaloes. It showed that her
father and brothers were not in a position to provide her food, clothing etc. She lived at her
brother-in-law's place for about two months. One day, she left the house of her brother-in-law
and came to Barabanki where she earned her livelihood by begging. She further stated that from
there she came to Lucknow Charbagh by Bus and there she was living as beggar. It showed that
she had left lawful guardianship of her father out of her own accord. It may also be added here
that after her recovery she refused to go with her father and preferred to live at Protective Home.
All this shows that she left guardianship of her father for good with intention never to go back
under it.

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 JUDGEMENT OF THE CASE

Learned Additional Sessions Judge who tried the case, believed the prosecution evidence and
convicted and sentenced the appellant as mentioned above. Feeling dissatisfied with it he has
preferred the present appeal and the High Court was altogether of a different opinion to that of
the lower court. The first issue that was taken up in the High Court of commission of rape on the
girl. The High Court examined the witness that was the girl himself wherein the court observed
several amendments in her confession about the incidents that Zahoor Ali took her to the hospital
the same day he took her home from Charbagh Railway Station since when she met him, she was
hungry and had an enlarged liver. Moreover, the medical examination officer could not confirm
rape over the girl since there was no injury which would have been there if rape had been
committed. The next issue dealt with was that Whether Zahoor Ali kidnapped, abducted or took
away the girl from the lawful guardianship. On this the Court relied on solitary statement of the
victim and concluded that Zahoor Ali didn’t induce or enticed the victim to go to her house and
she went with her own consent. Mere accompanying her to give shelter in the house or to the
hospital for medical treatment does not constitute offence attracting Section 361 IPC. The last
addressed question was related to taking of the girl. The court decided that there was no taking
since the girl left her brother in laws home on her own and then came to Lucknow which implies
that she came out of the guardianship of her father by her own accord. The High Court
disagreeing with the lower court released the accused since the provisions Zahoor Ali was
booked under does not fit to the present circumstances and were unable to meet its essentials.

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 CONCLUSION

The present case shows how application of few provisions of IPC that include rape and
kidnapping must be construed. The definition of rape as provided in IPC before the amendment
in 2013 nowhere fits in the present circumstances since the medical examination of the girl
concludes that there has been no recent injury which would have been definitely present if rape
would have been committed with her by Zahoor Ali. The next provision under which the accused
was booked under was that of kidnapping which requires inducement to take away the victim out
of the lawful guardianship. The application of word ‘taking’ under S.361 of IPC was emphasized
upon and it was concluded that the word ‘taking’ must extend to compelling a minor to leave her
lawful guardian's house or taking shelter in his house. In the present case, the essentials required
to attract the provision was not fulfilled and yet the accused was convicted and later on acquitted
in appeal to the High Court.

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