HC grants bail to three doctors booked for fabricating post-mortem report of Rape victim

Gauhati: Observing that the accused doctors are not connected with the main offence of rape under section 376 and 302 of the IPC, the Gauhati High Court recently granted bail to three doctors who were in police custody for allegedly fabricating the post mortem reports of the Dhula rape and murder case victim.

The HC bench comprising of Justice Robin Phukan noted that "further custodial detention of the accused are unwarranted" as "By virtue of Section 120B of the IPC, the present accused cannot be roped with the substantive offences i.e. under section 376 and 302 of the IPC, which were allegedly committed by accused Krishna Kamal Baruah, who has already been charge sheeted after investigation."

Dr. Anupam Sarma; Dr. Arun Chandra Deka; and Dr. [Mrs.] Ajanta Bordoloi were in jail since 07.11.2022 as they had been arrested in connection with the Dhula rape and murder case. These doctors had allegedly taken bribe for giving false post mortem report of the 13-year-old victim who died after the alleged incident of rape. Therefore, the three doctors were booked under Sections 376/302/120B/201/218 of IPC read with section 10 of POCSO Act read with section 14 of Child Labour [Prohition & Regulation] Act 1986.

Approaching the High Court bench seeking bail, the counsel for the doctors argued that the case has already been investigated by police and charge sheet has also  been filed. It was further submitted that the accused doctors are in no way connected with the main offence under Sections 376/302 of IPC and the IO has forwarded them mainly for commission of the alleged offences under sections 120B/218/201 of IPC, which are bailable in nature.

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The counsel for the doctors further submitted that the accused doctors have been co-operating with the investigating agency and argued that these doctors have roots in the society and therefore there is no scope for jumping the bail.

On the other hand, the counsel for the State submitted that the accused doctors had been arrested only on 10.11.2022 and the materials collected so far reveals their complicity with the offences and the I.O. has added section 409 IPC very recently in this case.

Taking note of the submissions by both the parties, the bench agreed with the submissions of the counsel for the doctors and noted, "by virtue of section 120(B) the present accused cannot be roped with the substantive offences i.e. under section 376/302 IPC."

"It also appears that though section 409 IPC is added by the IO at a later stage, yet, there appears to be inadequacy of materials in the case diary to rope the present accused with the said charge. And it also appears from the case diary as well as from the forwarding report of the IO as well as from the bail objection petition dated 14.11.2022, filed by the IO that if any offence at all is made out against the accused persons the same are under section 120(B)/201/218 IPC which are bailable in nature," further noted the court.

"Admittedly also here in this case the I.O. has not complied with the provision of section 41 (A) Cr.P.C. And admittedly also no reason has been assigned for such non compliance. The learned court below also failed to record its satisfaction on compliance or non compliance of section 41 and 41A Cr.P.C. and to follow the observation made by Hon'ble Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation & Anr, reported in 2022 LiveLaw (SC) 577, while the accused were produce before him. Be it noted here that in paragraph No.73 (C) in the judgment of Satender Kumar Antil (supra) Hon'ble Supreme Court has held that- "The court will have to satisfy themselves on the compliance of section 41 and 41A of the Code. Any non-compliance would entitle the accused for bail," the court added.

Therefore, granting bail to the doctors, the Court ordered,

"Keeping these principles in mind and also considering the facts and circumstances discussed herein above, and further, balancing the right to personal liberty of the accused with that of the societal interest this court is of the view that further custodial detention of the accused are unwarranted here in this case. Accordingly, this court is inclined to allow this petition."

"It is provided that on furnishing a bond of Rs. 1,00,000/(Rupees one lac) with one surety of like amount, each, to the satisfaction of the learned Special Judge POCSO Court, Darrang at Mangaldoi, the accused persons be enlarged on bail," read the judgment.

However, the bench has imposed certain conditions on the accused doctors for granting bail to them. The conditions are as follows:

(i) They will appear before the I.O. as and when directed;

(ii) They shall not leave the jurisdiction of the learned Special Judge, POCSO Court, Darrang, Mangaldoi, without prior permission;

(iii) They shall not indulge in hampering investigation or tampering the prosecution witnesses.

To read the judgment, click on the link below:

https://medicaldialogues.in/pdf_upload/gauhati-high-court-rape-case-191402.pdf

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