Dhula Rape-Murder Case: Doctors Accused Of Supplying False Post Mortem Report Get Bail From Gauhati High Court

The High Court stated that:

"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."

The bail plea was moved by the accused-doctors, namely, Dr. Anupam Sarma, Dr. Arun Chandra Deka and Dr. Mrs. Ajanta Bordoloi for the grant of bail under Section 439 CrPC. The aforesaid accused persons had been in custody in connection with the rape and murder of a 13 year-old girl, under Sections 376, 302, 120B, 201 and 218 of the IPC read with section 10 of POCSO Act along with Section 14 of the Child Labour (Prohibition & Regulation) Act 1986.

The applicants argued that they were in no way connected with the main offence under Sections 376 and 302 of IPC and that the Investigating Officer had forwarded them mainly for the commission of the alleged offences under sections 120B, 218 and 201 of IPC, which offences were bailable in nature.

It was also their claim that they were never served with the notice under section 41(A) of the CrPC and that they had been cooperating with the investigating agency. They claimed that they were not experts in forensic medicine and as such there may have been some commission or omission on their part, which however did not disentitle them from bail.

The Public Prosecutor conceded to the fact that the IO did not comply with the provision of Section 41(A) of the CrPC.

However, the State contended that reference to the statement of one of the co-accused suggested that the present accused persons received some amount of money for giving false post mortem reports.

The Court, while allowing the bail plea on grounds that the accused persons could not be roped in the charges for substantive offence of rape and murder, stated the following:

"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."

The single bench of Justice Robin Phukan added that:

"Admittedly also here in this case the IO has not complied with the provision of section 41(A) CrPC. 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 CrPC and to follow the observation made by Hon'ble Supreme Court in the case of Satender Kumar Antil v. 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."

On the basis of non-compliance of Section 41A, along with balancing the right to personal liberty of the accused with that of the societal interest, the High Court noted that further custodial detention of the accused was unwarranted.

Accordingly, the Court allowed the bail plea upon furnishing a bond of Rupees one lac with one surety of like amount, each, to the satisfaction of Special POCSO Court.

Case Title: Dr. Anupam Sarma and 2 Others v. State of Assam

Case No: Bail Application No. 3015 of 2022

Citation: 2022 LiveLaw (Gau) 69 

Coram: Justice Robin Phukan

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