Kerala HC quashes POSCO case against 80-year-old Paediatrician

Ernakulam: While setting aside a POCSO case against an octogenarian paediatrician, who was accused of "bad touch" during medical examination of a teenager, the Kerala High Court held that to attract Section 354 A (1) (i) IPC, it was necessary to show that the doctor had resorted to physical contact and advances involving unwelcome and explicit sexual overtures.

"Thus, it is of prime importance to show that the offender had committed the act with sexual intention," opined the HC bench, while granting relief to the doctor.

The HC bench observed, "...it would be highly unsafe and improper to act upon the above isolated casual remark of the victim, to come to a conclusion that the petitioner had acted with sexual intention. The chances of that adolescent girl getting misunderstood about the act of the petitioner, cannot be ignored."

The accused doctor, a Paediatrician aged 80 years, was booked under Section 354A(1)(i) of the Indian Penal Code, 1860 and Sections 9 (e), 9(l) read with Section 10 of the Protection of Children from Sexual Offences Act, 2012 for aggravating sexual assault upon a girl studying in 10 th standard.

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It was alleged that back in 2023, the victim came to the dispensary of the petitioner for treatment of abdominal pain and chest pain, he put his hands inside her garments and resorted to sexual assault by pressing her breasts and also in the naval area. It was alleged that the offence was committed in the examination room of the doctor. While on 11.04.2023, the patient's mother was present with her, on 17.04.2023, her elder sister accompanied her to the doctor.

According to the Statement of the girl, a few days before the second visit to the doctor, the victim told her elder sister about the objectionable touches from the doctor. However, the elder sister had dismissed her concerns as a misunderstanding. On the next visit, the patient was accompanied by her elder sister, and the doctor followed the same procedure as the last time. When the elder sister saw the victim shivering, she raised her voice and a complaint was filed with the police.

The case against the doctor was registered by the Kozhikode Kasaba Police on 17.04.2023 based on the Statement given by the victim. After the completion of the investigation, the Sub Inspector of Police, Kasaba Police Station, Kozhikode, filed the final report before the Additional District and Sessions Court.

However, approaching the HC bench, the petitioner doctor prayed to quash the proceedings against him. He contended that he was innocent and had been falsely implicated in the case. According to the petitioner, what was done by him was perfectly within the parameters of clinical examination of the patient.

Further, it was stated that the petitioner had examined the minor girl in the presence of the near relatives on both occasions. He also submitted that he had started his practice in 1970, and he had been following clinical methods for examination, which was the foundational stone for any medical practitioner.

While considering the matter, the HC bench observed that to establish the offence of sexual assault as envisaged under Section 7 of the POCSO Act, it has to be shown that the offender had done the act with sexual intent.

The Court also noted that the medical examination of the victim was conducted by the petitioner in the presence of the mother of the victim on the first occasion, and in the presence of the elder sister of the victim on the second occasion.

"There is no case for the mother of the victim, or for the elder sister of the victim, that the physical examination of the victim was conducted by the petitioner beyond the visibility of the above persons. It is too hard to believe that the petitioner would have resorted to sexual advances upon the victim in the close presence of the victim’s mother and elder sister. That apart, it is not possible to ignore the fact that the victim complained about chest pain and abdominal pain. Even as per the version of the victim in her FIS, the petitioner had applied stethoscope upon her breasts at the first time, and it is only thereafter that he pressed her breasts with hands. Neither the statement given by the victim to the Police, nor her statements to the learned Magistrate under Section 164 Cr.PC, contained any indication that the alleged act committed by the petitioner was with sexual intent," the HC bench noted.

While addressing the statement of the victim before the Magistrate alleging a bad touch by the doctor, the HC bench observed,"It is true that the statement given by the victim to the Magistrate under Section 164 Cr.PC, contained a casual indication that she felt the move on the part of the petitioner as a bad touch. But, it would be highly unsafe and improper to act upon the above isolated casual remark of the victim, to come to a conclusion that the petitioner had acted with sexual intention."

"The chances of that adolescent girl getting misunderstood about the act of the petitioner, cannot be ignored. At any rate, the act of the petitioner cannot be termed to be an outrageous sexual act since it is clear from the statement of the victim itself that she had complaints of chest pain and abdominal pain, and that it is for the treatment of the above ailments that she had approached the petitioner," the Court further observed.

The Court also observed that as per Section 41 of the POCSO Act, the provisions of the Sections 3 to 13 shall not apply in case of medical examination or medical treatment of a child when such medical examination or medical treatment is undertaken with the consent of his parents or guardian.