G.B. Singh, J.
1. Zahoor Ali, appellant has been convicted for the offences punishable under Sections 363, 366 and 376 IPC and sentenced to 3 years' R.I., 5 years' R.I. and 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 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 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 lodged 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 Sections 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 Sections 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. l)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 and 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.
4. On behalf of the prosecution 8 witnesses were examined Kumari Chhoti (P. W. 2) narrated the whole incident. Dr. (Smt) Uma Sahni (P. W. 1) medically examined her. Dr. J. P. Gupta (P. W. 8) took X-ray of her elbow, knee etc. in the Dufferine Hospital, Lucknow. Dr. Badrul Hasan Siddiqui, Senior Medical Officer T.T. C. Hospital who lodged the report was examined as P. W. 3. Dr. Syed Mohammad Farooq Rizvi (P. W. 4) admitted her in the aforesaid T. T. C. Hospital and she was under his treatment till she was discharged from Hospital on 19-11-1984. S.I. Rama Kant Tewari(P. W. 5) was posted at Police Station Saadatganj Lucknow on 10-11-1984 where the first information report was lodged He has stated that after interrogation of the accused he came to know that the matter relates to Police Station G. R. P. Charbagh and he, therefore, sent the relevant papers there. S. I. Ram Sewak Shukla (P. W. 6) was also posted at Police Station Saadatganj Lucknow on 10-11-1984. He prepared chik report on the basis of the written report and made entry in the G. D, S. I. Daya Ram Pushkar (P. W. 7) investigated the case and submitted the charge-sheet.
5. Zahoor Ali, appellant denied the charge and pleaded not guilty. His statement was that Kumari Chhoti met him on 19-10-1984. 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. It has been admitted by him that he is a rickshaw puller and he took Kumari Chhoti to the Hospital on his rickshaw. He has further disclosed that he took her to Hospital on account of sympathy and he neither kidnapped nor raped her.
6. 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.
7. It was firstly argued by the learned Counsel for the appellant that there is no reliable evidence of commission of rape by the appellant and he has been wrongly convicted for the offence under Section 376 IPC. I find much force in this argument. Dr. (Smt.) Uma Sahni (P. W. 1) who medically examined her could not give any definite opinion about the commission of rape on her. The hymen was old torn and healed. It has not been mentioned in the F. I. R. that she was raped by Zahoor Ali appellant at his house. In this connection the word 'Durveohar' has been used in the first information report. It may amount to ill-treatment or misbehaviour but not the rape as has been alleged by her 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, appellant. The case of rape was disclosed by her during investigation. Kumari Chhoti (P. W. 2) is the solitary witness on this point. She stated in examination-in-chief that Zahoor Ali kept her at his house for two days and the next day of her taking he committed rape on her during night time. In cross-examination she stated when Zahoor Ali met her at Charbagh she was ill and her liver was enlarged. She further stated that she was admitted to the Hospital on the same day on which she was taken by Zahoor Ali from Charbagh. This statement shows that there was no occasion for Zahoor Ali to commit rape on her next day of her taking from Charbagh. It is not less significant to mention that in examination-in-chief she stated that when rape was committed blood had come out of her vagina. It follows from it that she received injury on her private part by insertion of penis but Dr. (Smt.) Uma Sahni did not find any such injury on her person. According to medical evidence Kumari Chhoti was 10 to 13 years old at the time of the incident. Zahoor Ali appellant was about 48 years old at that time. If he had committed rape on her, she must have received some injury. The absence of any recent injury on her person indicates that the case of rape is hardly believable. Keeping in view of all this 1 am of the clear opinion that the case of rape has not been proved against the appellant.
8. The next point argued by the learned Counsel for the appellant is 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 does not amount to offence under Section 363 or 366 IPC and he has been wrongly convicted for these offences. There is much force in this contention also. There is solitary statement of Kumari Chhoti (P. W. 2) on this subject. She stated in examination-in-chief that when she asked for money from Zahoor Ali at Charbagh the latter said to her to accompany her to his house and promised to give her food there whereupon she went along with him to his house. She further states that Zahoor Ali kept her at his house for a few days and thereafter she was admitted in T.T.C. Hospital In cross-examination she stated that she was ill when Zahoor Ali met her at Charbagh and he got her admitted on the same day in the Hospital on which he brought her from Charbagh. It has also been stated by her that on account of her illness he took her from Charbagh to the Hospital. This statement is not consistent with her deposition in examination-in-chief. It shows that there was no inducement by Zahoor Ali in taking her from Charbagh to the Hospital. For the offence of kidnapping from lawful guardianship it is necessary that the minor should be taken or enticed away from lawful guardianship. It has been observed above that in the present case it has not been 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 point which remains to be seen is, if the appellant took away Kumari Chhoti within the meaning of Section 361 I.P.C. where kidnapping has been defined. 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, this case was given up at the stage of evidence. 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.
9. 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 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 states that though she has two brothers, she was sent to live with her brother-in-law (Bahnoi) where she was grazing his she-buffaloes. It shows 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, one of the she-buffaloes was impounded in the cattle pound due to which she was much frightened. She, therefore, left the house of her brother-in-law and came to Barabanki where she earned her livelihood by begging. She further stated that she used to sleep at the hotel of one Ghaffar in Barabanki and from there she came to Lucknow Charbagh by Bus and there also she was living as beggar. It shows 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.
10. It has been observed in Mst. Asma v. State 1967 Cri LJ 311 (All), that where the girl abandons her parent and guardian of her own accord and seeks protection of strangers the person who gives protection to such a girl is entitled to get benefit of doubt on the question whether there was really any 'taking' by him. Similarly in Mst. Bhagia v. State of Bihar 1967 Cri LJ 1240 (Pat), it has been held that if minor girl leaves voluntarily or stays out of her house and some-one picks her up with a view to help her, it does not amount to kidnapping. In the present case also the appellant took Kumari Chhoti to the Hospital for her treatment with a view to help her when he came to know that she was suffering from an ailment. This help given by Zahoor Ali does not amount to kidnapping within the meaning of Section 361 IPC.
11. It has been observed above that the case of rape has not been proved against the appellant. It has also been mentioned above that there has been no enticing, kidnapping or seduction in the present case.
12. Thus, in the present case prosecution has not been able to prove that Kumari Chhoti was kidnapped or abducted by Zahoor Ali with criminal intent. He could not, therefore, be convicted for the offence under Sections 363 and 366 IPC.
13. The appeal is allowed. The conviction and sentence of Zahoor Ali appellant for the offence under Section 363, 366 and 376 I.P.C. are set aside. The appellant is in Jail. He shall be released forthwith, if not required to be detained in connection with some other offence.