Groping Patient's Breasts Not Part Of Routine Examination For Menstrual Problems: Gauhati High Court Upholds Doctor's Conviction

The Gauhati High Court has upheld an order convicting a doctor for outraging the modesty of a patient by groping her breasts during a medical examination for irregular periods, holding that his conduct was "absurd" and cannot be termed as "routine examination" by a gynaecologist to cure irregular menstruation. 

In doing so the court said that statement of the victim was sufficient to hold an accused guilty of any offence relating to her modesty, and that minor contradictions in evidence did not dent the prosecution's case. 

The prosecution had alleged that the patient had gone to visit the doctor complaining of irregular periods, and he had unbuttoned her blouse, groped her breasts and touched her inappropriately, while reassure her that such contact was not inappropriate. The trial court convicted the doctor under Section 354 IPC sentencing him to undergo simple imprisonment for two years with fine of Rs. 10,000 in 2013; this was upheld by sessions court in 2014 against which the accused moved the high court. 

Justice Susmita Phukan Khaund in her order said:

"In this case at hand, the petitioner, a doctor, continued groping the victim's breasts despite protests from the victim and he went to the extent of touching her private parts and bit her lips. He inserted his hand into her mekhala (lower skirt) and groped her inappropriately. 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. It has been observed by the learned trial court that 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. Whoever using criminal force with intent to outrageher modesty, commits an offence under Section 354 IPC. The culpable intention of the accused is the crux of the matter. The evidence of biting the victim's lips remained intact in spite of cross-examination. No mens rea for false implication could be deciphered. The evidence regarding the overt act of the petitioner was a definite pointer towards the guilt of the petitioner"

The court further said that a victim's statement was  sufficient to hold the accused guilty of any offence relating to her modesty or any offence relating to sexual assault, even though it was true that eyewitnesses in such cases are not forthcoming.

The court further said that outraging the modesty of a woman is an abstract term and the victim is the "person who can justify if her modesty has been outraged".

The court said that the trial court had correctly held that victim had consistently stated that the petitioner inappropriately touched her private parts, groped her breasts and bit her lips.

"This conduct of the petitioner cannot be considered to be a routine examination of a gynaecologist to cure irregular menstrual period. 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 said that the petitioner had also admitted in his statement that it was a routine examination for a pregnancy test and he had touched the victim's tummy and pressed her breasts. The court said that 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. 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 313CrPC is self implicating and corroborates the consistent evidence of the prosecutrix," the court said. 

The court said that while the victim had not suffered any physical injury however due his conduct the victim's psyche had been affected. It also observed that the non-examination of two medical officers had "not caused a dent in the evidence". 

The court further held that a doctor's opinion is not a "sine qua non" to prove that a victim's modesty has been outraged.

While upholding the conviction the court reduced the sentence to fine only, after noting that the incident occurred before the 2013 Criminal Law Amendment,

Case title: DR. ANUP KUMAR BARUAH v/s THE STATE OF ASSAM 

Crl.Rev.P./112/2014 

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