The Gauhati High Court recently upheld the conviction of a 71-year-old doctor for the offence of assaulting with intent to outrage modesty for inappropriately touching a schoolgirl's breasts during her medical examination for irregular periods..However, considering the age of the convict, Justice Susmita Phukan Khaund reduced Dr Anup Kumar Baruah’s sentence under Section 354 (assault or criminal force to woman with intent to outrage her modesty) of Indian Penal Code (IPC) from two years’ imprisonment to a fine of ₹5,000.In the judgment passed on July 13, the Court rejected the contention that Baruah had touched the victim's breasts as a part of the medical test.“It is true that in such cases, when a victim goes for opinion on irregular menstrual periods, the doctor may touch the abdomen or he may feel it necessary to touch the private parts, but a diligent person will understand that he is not required to squeeze the breasts or grope the breasts inappropriately as alleged,” the Court said..The victim had visited the doctor at Lily Medical Hall on September 5 in 2009, in relation to her irregular menstrual periods. She was accompanied by two friends to the pharmacy. The doctor was attending patients in his chamber in the pharmacy. The girl alleged that during the examination, the doctor inappropriately touched her breasts and also removed her underwear to sexually assault her. However, she was rescued by her friends after she raised the alarm.Following investigation and a trial, the doctor was convicted by a Chief Judicial Magistrate under Section 354 of IPC in 2013 and sentenced to a simple imprisonment of two years and a fine of ₹10,000. His conviction was upheld by a Sessions Court in 2014..He challenged this conviction in a revision plea before the High Court. His counsel submitted that a medical officer examined by the prosecution was not produced as a witness before the trial court. It was also submitted that even the investigating officer was not examined during trial. The High Court was also told that there was a contradiction in the evidence of the victim’s friends.The Court, however, found that there was enough material to prove that the doctor had continued to touch the victim’s breasts despite protests from her, had even touched her other private parts and also bit her lips.“These acts of the petitioner suggest inappropriate sexual harassment with ill motive. The testimony of the victim is consistent to her statement under Section 164 CrPC,” the Bench said..The Court opined that such conduct of the doctor was not a routine examination of a gynaecologist. “It has been correctly observed by the learned appellate court that the victim was not required to unhook her blouse as she was suffering from irregular periods which is an internal problem. Thus, the plea of the petitioner that on a routine examination of gynecological problem, he had touched her tummy and groped and pressed her breasts, appears to be absurd,” the Court added.Even for a pregnancy test, groping the breasts inappropriately appears to be absurd, it said.“It has to be borne in mind that the doctor's plea appears to be absurd in the sense that the victim has categorically stated that she went for examination as she was suffering from menstrual problems, whereas the medical officer/ appellant has taken the plea of inappropriately touching the victim while conducting pregnancy tests, which is not so in this case. Rather, the statement of the petitioner under section 313 CrPC is self implicating and corroborates the consistent evidence of the prosecutrix,” the Court held..The Court ruled that there were only minor contradictions in the evidence of witnesses. Further, it said the accused was not prejudiced by the non-examination of the investigating officer. It added that a doctor’s opinion was not required to prove that a victim’s modesty had been outraged. “The Appellate Court and the Trial Court have correctly held that the examination of the medical officers is not required in an offence under Section 354 of the IPC. No injuries on account of sexual assault is expected in such offences,” the High Court said.It, therefore, upheld the accused doctor's conviction. However, it reduced the sentence to a fine only, as was allowed under Section 354 of the IPC in 2009.“This incident occurred before the amendment of 2013. The petitioner is thus sentenced accordingly. The petitioner is at present 71 years old as submitted by the learned Senior Counsel. Much water has flowed under the bridge,” the High Court said..Senior Advocate TJ Mahanta represented the convict.Additional Public Prosecutor RJ Baruah appeared for the State.
