Groping Breasts During Medical Exam Not Routine Gynaecological Procedure: Gauhati HC

Guwahati: The Gauhati High Court has upheld the conviction of a doctor for outraging the modesty of a minor patient by groping her breasts during a medical examination for irregular menstrual periods, holding that his conduct could not be treated as a "routine examination" by a gynaecologist. Justice Susmita Phukan Khaund was hearing a revision petition filed by Dr. Anup Kumar Baruah, who had been convicted under Section 354 of the Indian Penal Code by the Chief Judicial Magistrate, Morigaon, and whose appeal against the conviction was subsequently dismissed by the Sessions Judge, Morigaon.

The prosecution case was that on 5th September 2009, the victim visited a pharmacy to consult the petitioner for irregular periods. He took her into his chamber, unbuttoned her blouse and groped her breasts despite her protests, assuring her that the contact was not inappropriate, before attempting to remove her undergarments. On her raising an alarm, her friends entered the chamber and took her away, following which her brother lodged an FIR the same day. Trial resulted in conviction under Section 354 IPC, with a sentence of simple imprisonment for two years and a fine of Rs.10,000, which was upheld in appeal.

Senior Counsel for the petitioner argued that the conviction rested solely on the victim's testimony, that key witnesses, including the Investigating Officer, a senior gynaecologist and the woman constable who had accompanied the victim for her statement under Section 164 CrPC, were not examined, and that this had caused prejudice. It was further submitted that the trial and appellate courts had overlooked the petitioner's explanation that he had touched the victim's breasts only as part of a medical examination, and that contradictions between the victim's account and that of her brother rendered the prosecution version unreliable.

The Additional Public Prosecutor countered that the scope of a revision petition is confined to the legality and propriety of the judgment, that concurrent findings of two courts ought not to be disturbed over minor contradictions, and that the victim's statement under Section 164 CrPC was consistent with the FIR. It was pointed out that the petitioner had also allegedly kissed the victim and bitten her lips, conduct that could not be explained as part of any medical test.

Concurring with the findings of the courts below, the High Court held that the victim's testimony, corroborated by her brother and another witness, was consistent with her FIR and her statement under Section 164 CrPC, and that no motive for false implication had been shown.

“The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or asleep, the woman possesses modesty capable of being outraged.”

Rejecting the petitioner's defence that his conduct amounted to a routine gynaecological examination, the Court noted that the victim had gone to him for menstrual irregularities, an internal problem that did not require her to unbutton her blouse, and that the petitioner had himself admitted during his examination under Section 313 CrPC to touching and pressing her breasts, purportedly as part of a pregnancy test.

“Even for pregnancy test, groping the breasts inappropriately appears to be absurd. A doctor may touch the tummy or the abdomen, but he is not required to squeeze the breasts for any pregnancy test.”

On the non-examination of the medical officers and the Investigating Officer, the Court held that no contradictions attracting Section 145 of the Evidence Act read with Section 162 CrPC had been elicited, and that expert medical opinion was not a sine qua non for establishing an offence under Section 354 IPC, since it is the victim who is best placed to say whether her modesty has been outraged. It further held that the hostile testimony of two of the victim's friends did not dent the prosecution's case, as their statements were properly assessed against corroborating evidence from other witnesses.

While upholding the conviction, the Court modified the sentence, noting that the offence had occurred prior to the 2013 amendment to the IPC and that the petitioner was presently 71 years of age. The sentence was reduced to a fine of Rs.5,000, with a default sentence of two months' rigorous imprisonment, directing that the fine be transferred to the District Legal Services Authority, Morigaon, to form part of the victim compensation scheme.

Mr. T.J. Mahanta, Senior Advocate, assisted by Mr. T. Gogoi, appeared for the petitioner, while Mr. R.J. Baruah, Additional Public Prosecutor, appeared for the State of Assam.

Case Title: Dr. Anup Kumar Baruah vs. The State of Assam